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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
E.P NO 20 OF 2012
BETWEEN:
DANIEL BALI TULAPI
Petitioner
AND:
AIYA JAMES YAPA LAGEA
First Respondent
AND:
ALBERT WENS, RETURNING
OFFICER FOR KAGUA ERAVE
Second Respondent
AND:
ANDREW TRAWEN, THE ELECTORAL COMMISSIONER
Third Respondent
AND:
THE PAPUA NEW GUINEA
ELECTORAL COMMISSION
Fourth Respondent
Mendi & Waigani: Injia CJ
2013: 6, 7, 8 & 14 May
1, 22, 23, 24, 26, 31 July;
3 August
ELECTION PETITION – Trial – Allegation of Bribery of Electoral Officials Committed by Successful Candidate – Meaning of s 217 Organic Law on National and Local Level-Government Elections (OLNE) – Meaning of 215 (1) and s 212 OLNE – Meaning of "election period" and bribery committed outside the election period is allowed - Whether Bribery of Electoral Officers Comes Within the Terms of OLNE, s 215 (1) and the Criminal Code s 103 (a) (iii); Onus and Standard of proof - of Findings of Fact – Determination of Petition – Organic Law on National and Local Level-Government Elections (OLNE), s 215 (1), s 212, s 217; Criminal Code (Ch 62), s 103 (a) (i) & (iii).
Facts:
The Petitioner came in 16th place amongst 25 candidates for the Kagua-Erave Open Electorate in the 2012 General Elections, which was won by the First Respondent. He brought a petition disputing the election of the first respondent on the ground that he bribed electoral officials (Presiding Officers, Counting Officials and Police and Army Security Personnel) with money to induce them to procure his election. The allegation was brought under OLNE, s 215 (1) in conjunction with s 103 (a) (iii) of the Criminal Code. The Petitioner sought an order that the election of the First Respondent be voided, a declaration that the First Respondent be declared not duly elected and that in his place, he be declared the duly elected member for the electorate. In the trial, the First Respondent denied making any payments to the Presiding Officers but admitted he paid K10,000.00 to counting officials, K5,000.00 to police security personnel and K5,000.00 to army security personnel as a token of appreciation for a job well done in producing a successful and peaceful election. The monies were paid in public at the counting centre immediately after he was officially declared as duly elected. He saw nothing wrong with the payment as other successful candidates in the same Province had done the same. The recipients of the money gave evidence they saw nothing wrong with the payment for the same reason.
Held:
(1) the Petitioner had failed to discharge its burden to the required standard of proof that the successful candidate paid bribery money to two Presiding Officers;
(2) The Petitioner had failed to discharge its onus to the required standard of proof that the payments made by the First Respondent to counting officials, Police and Army security personnel as a token of appreciation for their good work in ensuring a peaceful and successful election, was made as an inducement or reward for procuring his return;
(3) The payments made to counting officials, Police and Army personnel was wrong, improper and unconscionable, such that the recipients of those monies and the successful candidate were referred to the appropriate authorities for disciplinary action;
(4) The Petition was dismissed with costs and with appropriate orders for referral of the persons referred to by the Registrar for appropriate disciplinary action.
Cases Cited:
PNG Cases cited in the judgment
Amet v Yama (2010) SC1069
Biri v Ninkama [1982] PNGLR 342
Daera Guba v The Administration of the Territory of Papua (1971) FC 18
Application of Ben Semri (2003) SC723
Bourne v Voeto [1977] PNGLR 298
Daera Guba v The Administration of the Territory of Papua (1971) FC 18
Paru Aihi v Moi Avei (2004) N 2523
Overseas Cases
Ah Hian v Amosa [2001] WSSC 16 )
Ithacan Election Petition: re Webb v Hanlom [1939] Q.S.R 90
In re Cambooya Election Petition (1990) 9 Q.L.J.341
Moses v Parker (1893) AC 245
Re Mathieson (1961) 78 W.N. (N.S.W.) 6
Tramway's case [1914] HCA 15; (1914) 18 CLR 54
Vanua Lop v Issac [2009] VUSC 23
Counsel:
T.Waisi, for the Petitioner
S.Bonner, for the First Respondent
S.Tadabe, for the Second, Third and Fourth Respondents
3 August, 2013
1. INJIA CJ: Introduction: Three (3) separate election Petitions were brought disputing the election result for the Kagua- Erave Open Electorate pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections (OLNE). Those were EP No. 20 of 2012 Daniel Tulapi v James Lagea & ors; EP No.25 of 2012 Komeali Ropa v James Lagea & ors; and, EP NO. 35 of 2012 Nemo Yalo v James Lagea & Ors. The Petitioners were amongst other candidates who lost the election to the First Respondent. Following a consolidated hearing of four Notices of Objection to the Competency of those Petitions, a joint ruling handed down on 14 May 2013 saw EP No.25 of 2012 dismissed for want of competence and two advance to trial, each on one allegation of bribery. Although the trial on the two remaining Petitions have been consolidated during the directions hearing, parties agreed to conduct separate trials. Consequently, the trial in EP No.20 of 2012 proceeded first. This judgment comprises the Court's decision in that matter.
2. The parameters of the trial were set by the Court in the Court's ruling on the Objections to Competency. I reproduce the pertinent parts of that ruling hereunder, as follows:
"57. Ground 11 concerns bribery committed by the First Respondents on 22 June 2012 and 18 July 2012. It is necessary to set out the main factual allegations regarding this ground which appear in paragraphs 11. 1 – 11. 3, as follows:
"11.1 It is alleged that the first respondent bribed the presiding officers from Aiya Rural LLG to entice them the presiding officers to cast their ballot or mark other people's ballots in his favour.
11.2 On or about 22 June 2012 immediately prior to the polling, the First Respondent or his family members killed a pig for, among others, the presiding officers appointed to conduct polling in Aiya Rural LLG. He shared pork pieces among the election officials and gave K500 each to each of the presiding officers and promised further K5,000 each in Mendi should he win the 2012 elections. The following presiding officers and the polling centers at which they conducted the polling are as follows:
Mr Martin Yomo for Usa Polling center
Mr Felix Dulupia for Sumi Polling Center
Mr Mark Aiyapi as Assistant Presiding Officer for Wasuma Polling center.
11.3 On or about 18 July 2012 the date when the First Respondent was declared returned as duly elected Member for Kagua Erave Open Electorate he presented K10,000.00 cash to the electoral officials and K5,000.00 to the security personnel at Momei Oval in Mendi, Southern Highlands Province. The First Respondent owed no moral or legal obligation to pay out K15,000.00 to the officials who had merely conducted their paid duties. It is irregular, improper and highly suspicious and the First Respondent brought the integrity and independence of the electoral process into question. The first respondent's action adds support to the allegation that he did promise to pay monies to the presiding officers in Mendi should (he) be returned and declared duly elected as Member for the Electorate." ......
60. I find that the reference in paragraphs 11.1 – 11.3 of the petition to the First Respondents' family members assisting in staging the feast and payment made to security officers, are not accompanied by any other essential facts.
For that reason, I disregard those factual matters. As I intimated to counsel during argument, the focus of this ground is bribery committed by the winning candidate himself, within the meaning of Criminal Code, s 103 (a)(i) or (iii); and within the terms of OLNE, s 215(1) (bribery committed by winning candidate).
73. The Court orders as follows:
(1) All Grounds in the Petition except Ground 11 are struck out.
(2). Ground 11 of the Petition is to be tried on the allegation of bribery committed by the First Respondent on the terms set out paragraph 70 of this ruling. ..."
3. In the petition, the petitioner did not specifically plead bribery under s 103 (a) (iii) of the Criminal Code (Code). The Petitioner relied on that provision at the hearing on the objections to competency; and on that basis, I ruled that the allegation of bribery under that provision will proceed to trial. It is now agreed between the parties the trial was run on bribery under s 103 (a) (iii) of the Code. No question arises as to the application of this provision to bribery committed upon persons holding position as electoral officials.
4. It is the common position of the parties that the allegation of bribery under s 103 (a) (iii) of the Code comes within the terms of OLNE, s 215(1) of the OLNE as distinct from s 215 (3). That is, bribery committed by the successful candidate involving electoral officials as an inducement to procure his election. Bribery of an elector under the second limb of s 103 (a) (iii) of the Code is inapplicable to this case. At the trial, the parties did not contest the application of s 103 (a) (iii) of the Code.
5. Both parties adduced oral testimony and documentary evidence to support their respective cases. I received extensive submissions, written and oral, and reserved my decision which I now deliver. The arguments of counsel are adverted to and dealt with in the body of this judgment.
Law
(a) Law on OLNE, S 217
6. The procedural guidelines for the Courts' conduct of a hearing in an election petition after the petition has survived scrutiny under s 208, s 209 and s210 is set out in OLNE, s.217: Biri v Ninkama [1982] PNGLR 342 is set out in OLNE, s.217. It is in the following terms:
"S.217 Real justice to be observed''
The National Court shall be guided by the Substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not''.
(underlining is my emphasis)
7. Section 217 is a special procedural provision that governs the conduct of petition trials. At the heart of this provision is the key expression "substantial merits and good conscience of each case". The provision has been cited and applied in numerous election cases before this Court and the Supreme Court without any effort to ascertain its true meaning because it seems the term's meaning is expressed in plain language and self-explanatory. I consider it necessary to ascribe some specific meaning to the provision for purposes of its application to the case before me and for guidance in future cases.
8. I have had recourse to remarks made by judges in various decisions in our Courts and Courts in Australia have considered similar provisions in other statutes. I have drawn much assistance from the judgment of the full Court in Daera Guba v The Administration of the Territory of Papua (1971) FC 18 (per Minogue CJ, Frost SPJ & Prentice J). I note the remarks made in that case as to the meaning of a similar provision in s164 of the Native Employment Act 1958 – 1966 and note the references to the decisions of Australian and English cases cited and discussed in that case. Of particular interest is two Queensland State Court decisions in election petition matters in which statutory provisions similar to our s 217 were considered: Ithacan Election Petition: re Webb v Hanlom [1939] Q.S.R 90; In re Cambooya Election Petition (1990) 9 Q.L.J.341.
9. It is acknowledged at the outset that this provision give an extremely wide discretionary jurisdiction and fact it would be dangerous to tread on a construction exercise that may lead to consideration of matters of personal and subjective domain: per Blair CJ & Hart AJ in the Ithaca case; per Griffith C.J in re Cambooya Election Petition (1990) 9 Q.L.J.341. Nonetheless, with jurisprudential developments over this and other electoral laws an evolving subject, it is useful to lay out some general guidelines and principles by which s217 can be applied in cases.
10. Section 217 is a procedural provision that frees up the Court procedurally. It empowers the Court to inform itself in the best way it can of the factual situation with which it is dealing with; but, it does not allow the Court to act on no evidence at all: Daera Guba's case (supra); Tramway's case [1914] HCA 15; (1914) 18 CLR 54; or "except rules of law" that governs the judicial determination of the case: Moses v Parker (1893) AC 245 .It is not intended to "exonerate from obedience to strict rules of law and equity": per Blair in Ithacan Election Petition: re Webb v Hanlom [1939] Q.S.R 90. It does not displace the onus of proof or reverse it in a case: Ithaca's case. The Court must therefore act on evidence and in accordance with the law. It does not give the Court power to dispense with its duty to do justice according to law, affording natural justice to the parties to have their case to be heard and being given fair and reasonable opportunity to do so, and for the case determined according to law. The Court cannot refuse to apply the law to the facts and give judgment based on personal views of what is fair and proper far removed from the evidence and the law: Re Mathieson (1961) 78 W.N. (N.S.W.) 6.
11. Whilst the Court is empowered to make an objective assessment of the evidence and render reasonable findings and conclusions of fact and law, at the same time, the provision vests the Court an element of subjectivity, by which the Court of its own discretion is empowered to make up its own mind "according to his (own) conceptions of equity and good conscience or "on his own common sense" ( Daera Guba's case), as to what is reasonable, fair and right in the circumstances of the case before it.
12. Section 217 applies to the manner in which the Court handles the case at the two-phase hearing process in a case– evidentiary hearing and decision phases. At the evidentiary hearing, the Court should be flexible and avoid strict application of technical rules of procedure and evidence and ensure that their application does not result in shutting out a party from calling material evidence that is relevant to the important and substantive issues in the trial, or shut out witnesses from giving such evidence. A petitioner should be allowed to lead evidence that is relevant and material to the substantive issues in the case and not be hampered by procedural technicalities. Likewise the opposing party should be afforded natural justice by giving opportunity to contest the evidence. Evidence that is irrelevant to the substantive issues in the trial or highly conjectural or opinionated and transcends bounds of reasonableness and having no probative value such a highly hearsay evidence should be permitted to be objected to and if sustained, and not allowed. If a party fails to object, the onus falls on the Court to resist that evidence.
13. Once the evidence is completed, the Court should move to the second phase. The Court must consider the evidence, make reasonable findings of fact and reasonable inferences from those proven facts. Those facts should then be measured against the requirements of the law and conclusions drawn from them. From those conclusions, the Court should then reach and pronounce a decision on the case.
14. Section 217 requires the Court to focus on the substantive and important issues in the case and determine the merits of those issues without pre-occupying itself with procedural issues such as whether the evidence conforms strictly to the pleadings: Application of Ben Semri (2003) SC723. It requires the Court to avoid dwelling on evidence, inconsistencies and contradictions in evidence included over points that have no material connection or significance to the substantive issues in the case and have no impact on the outcome of the case.
15. In performing that task, whilst s 217 empowers the Court to apply an objective standards in reaching reasonable conclusions, the Court is also required to apply a subjective standard "according to his (own) conceptions of equity and good conscience", common sense and its perception of what is reasonable, fair, conscionable, good and right. The ultimate decision the Court makes in the case should reflect the substantive merits of the case, consistent with the requirements of the law and is consistent with good conscience of what is right, fair and just, having regard to the circumstances of the case and one that upholds the principles of a democratic election that is genuine, open, free and fair that has produced an election result that is acceptable to right-thinking ordinary persons.
16. In this matter, I used my best endeavours to conduct the trial in accordance with those principles in conducting the evidentiary hearing phase. After the case for the parties, parties made submissions on the evidence and the law for my consideration and determination. I apply those principles in arriving at decisions on the facts and their application to the law in conformity with those principles.
(b) Law on s 215 (1) Illegal Practice – Bribery committed by successful candidate
17. OLNE, s 215(1) is in the following terms:
"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) ...
(3) ..." (Underlining is my emphasis)
18. OLNE, s 215 (1) is clear in its expression. An act of bribery or attempted bribery committed by a successful candidate results in the election of the candidate concerned declared void. The entire election is not declared void; it is the election of the successful candidate who was declared duly elected that is declared void. It is immaterial or irrelevant that the result of the election was affected; and so is the number of persons bribed and amount or value of the money or property given or offered: see Bourne v Voeto [1977] PNGLR 298.
(c) Law on relief available under OLNE, s 215 (1) and s 212.
19. OLNE, s 212 sets out the powers of the National Court in a petition. Section 212 is in the following terms:
"212. Powers of court.
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election." (in bold is my emphasis)
20. The primary relief available on a proven allegation of bribery under OLNE, s 215 (1) is spelt out in that very provision. The election of the successful candidate is declared void. This relief is permitted by s 212 (1) (g).
21. With regard to consequential relief that may be granted under s 215 (1), Mr Waisi of counsel for the Petitioner argued strongly that if the petitioner in his petition seeks the relief that he be declared the candidate that was duly elected in compliance with OLNE, s 208(b), the Court has no option but grant him that relief regardless of the number of votes collected by him. It is not open for the Court to consider and grant any other relief. Mr Waisi of counsel for the petitioner admitted that this relief is not expressly provided in OLNE and that it is without precedent. He made a valiant effort to persuade me to accept his arguments. He drew my attention to analogies to be drawn from various provisions of the OLNE including s 215 (1) and s 212 and relied heavily on the Queensland Court of Appeal decision in The Itacha Election Pet Hon Webb v Hanlon (1939) Q.S.R 90 . Ms Tadabe of counsel for the Electoral Commission argued that s 208 (b) only prescribes the relief to be pleaded in the petition. Neither that provision nor s 212 limits the Court's power to grant appropriate relief including that claimed in the petition. She submitted the appropriate consequential relief to be granted under s 215 (1) and s 212 are discretionary and whether a candidate is declared by the Court to be duly elected depends on the number of votes scored by a candidate.
23. In my view, the power to grant appropriate relief in a petition given to the Court by s 212 is indeed a wide discretionary power. This is apparent from the expressions " the court, may, amongst other things" appearing in the opening line of Subsection (1) and the whole of Subsection (3) read together. The Court would relevantly consider whether the grant of the appropriate consequential relief is just and sufficient in the circumstances of a particular case. In that sense, the petitioner's argument that he be declared the duly elected candidate for the Kagua-Erave open electorate is open to be raised and submitted for the Court's consideration. The Court has the discretionary power to consider and grant any relief or a combination of relief that in its discretion considers appropriate, just and sufficient in the circumstances of the case at hand.
24. The question of relief does not arise in this case until and unless the Court has found the allegation of bribery proved. I will address this point after determining the allegation of bribery.
(d) Law on Criminal Code, s 103 (a) (iii)
25. The pertinent part of s 103 of the Code under which the allegation of bribery is brought is in the following terms:
"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)........
(ii) ......
(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....
is guilty of a misdemeanour." (underlining is my emphasis)
(e) Law on onus of proof and standard of proof of bribery
26. An election dispute is a civil case. In general, like in any civil case, that is, the onus is on the petitioner to prove its case and to do so on the civil standard of proof, on the balance of probabilities. When the case turns on proof of an illegal practice that is defined as a criminal offence, in this case bribery under OLNE, s 215 (1) in conjunction with Code, s 103 (a) (iii); given the seriousness of the allegation, "a more onerous or tedious" and high standard of proof is required: Paru Aihi v Moi Avei (2004) N 2523. The standard of proof required "is such that the Court should require clear and cogent proof so as to induce on the balance of probabilities, an actual persuasion of the mind or to the entire satisfaction of the Court, the materials asserted for proof. ": Amet v Yama (2010) SC1069. The standard is equivalent to or just below the criminal standard (proof beyond reasonable doubt), (Neville Bourne v Voeto [1977] PNGLR 298 at 302.
27. The application of those principles to this case is not in issue between the parties.
(f) Law on bribery committed "in the election period"
28. Mr Waisi argued that the "election period" during which the acts of bribery were alleged to be committed as a relevant issue and argued the point but drew no response from the respondents. I accept Mr Waisi's submission that the illegal practice need not be committed in the relevant election period (from the issue of the Writs to the return of the Writs). Indeed, the period during which the illegal act is committed is not an element of the offence of bribery in s 103 (a)(iii) of the Code.
29. The two cases from the Supreme Court of Vanuatu (Vanua Lop v Issac [2009] VUSC 23) and the Supreme Court of Samoa (Ah Hian v Amosa [2001] WSSC 16 ) cited by Mr Waisi in support of the arguments are directly on point and I adopt the reasoning in those cases.
Evidence
30. Both parties produced oral evidence and documentary evidence in the form of affidavit and other documentary evidence. The Petitioner called four witnesses to prove the allegations set out in paragraph 11.1 -11.3 of the Petition.
31. The witnesses gave detailed evidence, which I have considered. For the purpose of this judgment, I set out the essence of their evidence in summary.
32. The Petitioner's evidence in relation to the allegation in paragraph 11.1 and 11.2 were given by Martin Yomo and Felix Dulupia. The evidence in relation to paragraph 11.3 was given by the Petitioner and Berry Yomo.
33. The Petitioner is from Sumi village in the Aiya LLG of Kagua-Erave Electorate. A lawyer by profession, he has been candidate for the same electorate since 1987. The Petitioner gave oval evidence. His affidavit sworn on 25th October 2012 admitted into evidence (Exhibit "A" (for the Petitioner). Paragraphs of that affidavit relating to publication of newspaper article (Annexure "C") were the only relevant evidence allowed. The newspaper reported that Mr Lagea distributed monies to counting officials and security personnel as a token of appreciation for a job well done in securing a successful and peaceful election. It was reported he gave the money in the counting room at the time of his declaration as the winner. A photograph showing his presence in the counting room with his supporters and Returning Officer accompanied the report. The petitioner did not witness the incident but the report concerned him and it prompted him to carry out inquiries which led to the filing of the petition.
34. Mr. Felix Dulupia was the second witness to give evidence. He gave oral evidence. His affidavit sworn 13th June 2013 was admitted with evidence (Exhibit "B" (for the Petitioner)). Mr. Felix Dulupia is from Sumi Village. He is secondary school teacher by profession. He was a presiding officer at Sumi polling place. He was taken by Bernard Kambe to Muniputi to Mr Lagea's house and in the presence of Martin Yomo and Reuben Pima, and other presiding officers, Mr Lagea gave him K500 with instruction, amongst others, to give their first vote to him; assist illiterate voters by filling first preference vote to Mr Lagea; not counter-sign ballot papers of literate voters who filled their ballot papers on their own and gave first votes to the petitioner; and clear all ballot boxes which contained Mr Lagea's votes when they are disputed at the counting center. He then promised to pay K5,000 if he won the election. He was at the Counting area and witnessed irregularities in the counting process that favoured Mr Lagea such as the fast-tracking of the counting of boxes from Mr Lagea's stronghold areas and ordered recount of Wasuma polling area box which was the petitioner's stronghold area where the petitioner scored all the votes. A recount was ordered and the petitioner's votes was reduced to 360 and 127 votes were assigned to Mr Lagea whilst 462 votes which were not signed by the PO (David Kamarepa) were declared informal. At Mendi, before the declaration, whilst elimination process was still continuing, Mr Lagea was brought in by security personnel and he distributed money to counting officials and security personnel. He gave K2,000.00 to him. Subsequently when he followed up on the balance, Mr Lagea refused to pay him. He knew it was not a good thing to receive the monies but received it.
35. Berry Yomo was the third witness. He gave oral evidence. His affidavit filed on 13/06/13 was marked as Exhibit "D" (for the Petitioner). He is from Pawayamo village in Aiya LLG of Kagua –Erave Electorate and a teacher by profession. He was a scrutineer for the petitioner at the time of counting. He was at the Counting area and witnessed irregularities in the counting process that favoured Mr Lagea such as the Petitioner's stronghold areas in Asumawi and Rakuare polling places where the petitioner was assigned zero votes. He saw Mr.Lagea being escorted into the counting room during the elimination process when ballot papers and boxes were still lying on the tables. He saw Mr Lagea giving money in K100 notes to Martin Yomo and Felix Dulupia. He also saw Mr Lagea giving bundles of money in K100.00 notes to security officers, counting officers, AROs and ROs.
36. The fourth witness was Martin Yomo. He is from Pawayamo village in the Kagua-Erave electorate and a high school teacher by profession. He was presiding officer at Usa Council Ward Polling Place. He was picked up by Mr Kambe together with Mr Felix Dulupia and Rueben Pima and taken to Muniputi where he received K500 and was promised another K5,000 if he won the election. Mr Lagea instructed Mr Yomo to, amongst others, give his first vote to him; assist illiterate voters by filling first preference vote to Mr Lagea; mark second and third preference votes to Mr Lagea where voters were concentrating on first preference votes and confused about second and third preferences; and not counter-sign ballot papers of literate voters who filled their ballot papers on their own and gave first votes to the petitioner. At the polling, he complied with the instructions and used his discretion to mark 50 first preference votes for Mr Lagea and gave his first preference vote to Mr Lagea. He was at the Counting area and witnessed irregularities in the counting process that favoured Mr Lagea such as the recount of the Wasuma box which reduced the petitioner's votes from 920 to 360 votes and 127 votes assigned to Mr Lagea and 462 votes declared informal because PO did not sign them. To Mr Yomo, everything seemed to be controlled by Mr Albert Wens and other counting officials as planned at Muniputi, to produce a win for Mr Lagea. Also at the counting Mr Lagea was brought in whilst the elimination process was still in progress and he distributed money to counting officials and security personnel in K100 notes. Mr Yomo received K2,000 from Mr Lagea. He saw some monies paid to Mr Dulupia. His attempts to obtain from Mr Lagea the balance of the K5,000 promised was to no avail.
37. The First Respondent called 8 witnesses. The evidence in relation to allegation in paragraph 11.1 and 11.2 were given by James Lagea, Bernard Kambe, Albert Wanz, Joseph Timothy and Sam Raluame. The Respondents' evidence in relation to allegation 11.3 was given by James Lagea, Albert Wanz, Sgt Peter Mol, Jacob Wano and Henry Map.
38. The First witness was James Lagea. He is from Yanguri Village in the Aiya LLG of Kagua –Erave Electorate. He contested the 2007 and 2012 elections both of which he won. He gave oral evidence. His affidavits filed 21/11/12 is marked Exhibit "F" (for the First Respondent) and affidavit filed on 12/07/13 is marked Exhibit "G" ( for the 1st Respondent).
39. On 22 June 2012, he was in his own village in Maga village busy organizing his scrutineers to go to cover the length and breadth of the electorate. Maga village is one and a half kilometers away from Muniputi. He denied he was at Muniputi meeting with POs and APOs and paying them K500 and promising them another K5,000 each if he won the election.
40. On the 18/07/12, he was picked up by personal Security Officers with his wife, two kids, his brother and wife, and was escorted to the counting area at Momei Oval, Mendi where he was declared the member elect. As a token of appreciation for a job well done and for ensuring a successful and peaceful election, he gave the Counting Officials K10,000.00, Army security personnel K5,000.00 and Police security personnel K5,000.00. He did not see anything wrong with the payments. He denied giving any money to Felix Dulupia and Martin Yomo who are not known to him.
41. The second witness was Albert Wens (Second Respondent). Mr. Albert Wens is from Enza Village in Nipa LLG in the Southern Highlands Province and a school teacher by profession. He gave oral evidence. His affidavit filed on 12/11/12 is marked as Exhibit "H" (for First Respondent) and affidavit filed on 12/07/13 marked as Exhibit "I " (for the First Respondent). He said counting proceeded smoothly. He used Forms 66A and 66B to record the primary counts and elimination counts respectively. The Petitioner was eliminated on the 16th count. After the completion of elimination, a winner was arrived at. He sent word for security personnel to bring in Mr Lagea for the official declaration. At the counting area Mr. James Lagea was the declared as the duly elected member. After that Mr Lagea distributed monies to counting officials and security personnel to express his appreciation. The sum of K10,000.00 was given to him but as he was busy with other things and some distance away from Mr Lagea, he asked Mr Henry Map, to collect the money.
42. On 19 June 2012, his office received K27,080 from the PRO to cover election expenses for the electorate. Of this amount, he gave K7,200 to Bernard Kambe to distribute after the completion of training of polling officials for Aiya LLG area.
43. The third witness was Bernard Kambe. He is from Uma Village in the Aiya LLG of Kagua –Erave Electorate. He is a public servant with 35 years experience. He was appointed ARO for Aiya LLG. He gave oral evidence. His affidavit filed on 23/11/12 is marked Exhibit "J" (for First Respondent) and affidavit filed on 12/07/13 marked as Exhibit "K" (for the First Respondent).
44. On 19th June 2012, he conducted training for all POs and APOs for Aiya at the Catholic station. He received from K7,200.00 from the Electoral Commission to distribute to POs as team advance money for polling after the training. Martin Yomo and Felix Dulupia also attended the training at the Catholic Church. At the end of the training, he gave to each of the 24 polling teams, through their respective POs, team advance money in the sum of K300.00.
45. On 22 June at 8 am, he was at Kagua Police Station attending to organizing the polling team officials with ballot papers and boxes for polling the next day. He denied going to Muniputi with Martin Yomo and Felix Dulupia. He said he used a land cruiser motor vehicle hired by the Electoral Commission and was not picked up by Mr Lagea's son in an open -back land cruiser motor vehicle as claimed by the petitioner' witnesses. He denied he received any money from Mr Lagea to distribute to POs and APOs.
46. The fourth witness was Joseph Timothy. Joseph Timothy is the PRO for Southern Highlands Province. He received K27,080.00 to distribute to polling teams for the electorate, of which he gave a substantial amount of money to Albert Wenz, RO for Kagua Erave. On the 19/02/12, the BSP cheque No#8952 for the amount of K27,000.00 was paid cash to Joseph Timothy. A copy of the cheque is marked as exhibit "L" (for the First Respondent).
47. The fifth witness was Sgt. Peter Mol. He gave oral evidence. His affidavit filed on 23/11/12 is marked as Exhibit "O" (for the first Respondent). Sgt Mol is from Jiwaka and his based in Taurama Barracks in Port Moresby and has been in the Defence Force for 26 years. He was with the Defence Personnel in the counting area when the declaration of the elected member was made. He received K5,000.00 from the member elect Mr. James Lagea on behalf of the Defence Officials. The payment was a token of appreciation from the member-elect. He did not see anything wrong with the payment. His affidavit sworn on 21/11/12 and filed on 23/11/12 marked as exhibit O for the first Respondent is in bracket.
48. The sixth witness was Sam Raluame. He gave oral evidence. His affidavit filed on 23/11/12 is marked Exhibit "O" (for the first Respondent). He is from Mapaita Village in the Aiya LLG of Kagua- Erave Electorate. He is also related to the first Respondent on the mother's side, because his mother comes from the same tribe as him. He was a Presiding Officer for Mapaita Ward 1. On the 19/06/12, he attended the training conducted by Mr Kambe and after the training, he received from him K300.00 in polling team advance money. On the morning of 22/06/12, he was at the Kagua Police Station to receive ballot papers and ballot boxes. Martin Yomo was amongst the POs an APOs gathered at the police station.
49. The seventh witness was Jacob Wano. He gave oral evidence. His affidavit filed on 12/ 07/13 is marked Exhibit "P" (for the first Respondent). He is from Muniputi Village in the Aiya LLG of Kagua-Erave Electorate. He was a scrutineer for Mr Lagea for four (4) years for the past general elections and had an experience for election. In the 2012 general election, he was a scrutineer for Mr. James Lagea and he was at the counting area for the starting of the counting to the end of it. The Petitioner was eliminated on the 16th preliminary count and his scrutiny Mr. Berry Yomo was escorted out of the Counting area after his candidate was eliminated.
50. The eighth witness was Henry Map who was not called. His affidavit was tendered by consent (EX. "Q" (for the first respondent). He deposed being a counting official who was present from the first day of counting to the end. Mr Lagea was brought in by security personnel after the completion of the elimination process and a winner was arrived at. He distributed the money to counting officials and security personnel as a token of appreciation after Mr Lagea was declared and after he gave his speech. He collected the K10,000.00 on behalf of counting officials. He received the money and saw nothing wrong with it because other successful candidates in the province had done the same.
51. The second respondent was called by the first respondent and he gave evidence. The third and fourth respondents did not call any witness of their case apart from the electoral officers that were called by the first respondent, whose evidence the third and fourth respondents adopted.
Analysis of evidence and findings of fact and reasonable inferences from proven facts
52. The allegation in para.11 covers two different instances of bribery at two different locations and two different dates. The allegations seek to establish some nexus between them, to show that the payments of 22 June and 18 July were connected and that both payments were made to induce the return of Mr Lagea as the member elect.
53. The evidence given by both parties in the case is very much complete in terms of the witnesses that are required to give a complete account of the payments made to electoral officials, in the form of POs, APOs, Scrutineers, RO, ARO and PRO. With the evidence I am able to assess and weigh the evidence and make findings of fact and draw reasonable inferences there from.
54. In order to focus on the evidence that is relevant and material to the allegation of bribery, the evidence must be relevant and material to the elements of bribery. Those elements have been correctly identified by Mr Waisi, as follows:
(1) Identity of the person by name, the successful candidate, that made the payment or promise;
(2) Identity of the person by name who is bribed;
(3) Form and value of the money (property) or benefit; and
(4) the purpose of the payment – to induce the person to endeavor to procure the return of the a person, the successful candidate, at an election.
55. The allegation in para 11.1 & 11.3 concern bribery of electoral officials in the form of "presiding officers', namely Martin Yomo, PO for Usa and Felix Dulupia PO for Sumi. No evidence was led with regard to bribery of Mark Aiyapi, APO for Wasuma Polling place. With regard to the evidence concerning Martin Yomo and Felix Dulupia, the allegations seek to connect the payments and promise made at Muniputi on 22 June to the payments made on 18 July at Mendi by placing these two POs in the same counting room and receiving separate payments from Mr Lagea of K2,000 each (of the K5,000 promised). There is evidence given by these two POs that there was a lot of cash money distributed to other officials at the same time.
56. In my ruling on the objections to competency, I identified the allegation to go to trial by stating that Martin Yomo and Felix Dulupia (and Mark Aiyapi but he did not give evidence) were bribed by Mr. Lagea with K500 each and promised another K5,000 each if he won the election; a situation falling under OLNE, s 215 (1) in conjunction with s103 (a)(iii) of the Criminal Code.
57. The Petitioner has produced witnesses who gave evidence showing that on 22 June 2012, at around 8-9am at Muniputi village, Martin Yomo and Felix Dulupia were picked up by Mr. Lagea's son in a Land Cruiser vehicle and taken to Mr. Lagea's home where pork meat was distributed and they were given K500 each with instruction to vote for him and fill in ballot papers marking first preference to Mr. Lagea. They were also instructed to assist illiterate voters by filling in ballot papers giving first preference to Mr. Lagea. They were instructed to secure the ballot boxes and ensure their safe arrival in Mendi. If he won, he promised he would pay them K5,000 (he showed them bundles of money). They complied with the instructions.
58. On 18th July 2012, at the Community Centre, Momei Oval, Mendi; Felix received K2,000 from Mr. Lagea at the end of the elimination process. Martin Yomo did receive K2,000 from Mr. Lagea and did not receive the balance even though he sought out balance from Mr Lagea.
59. Berry Yomo, did not receive any money because he was not a counting official. He witnessed Mr. Lagea giving appreciation money to counting officials such as RO,ARO & POS included, army security personnel and police security personnel in K100 notes. He saw Martin Yomo and Felix Dulupia walk away with their payments in K100 notes. The monies were paid out during the elimination process. The money was given in the counting room in the presence of many people, counting officials security officials and scrutineers. According to these two witnesses, there was a lot of money given in K100 notes distributed by Mr. Lagea at the time. The incident was reported in the Post Courier newspaper. Mr Lagea was reported on giving out cash money as "appreciation money" - K10,000 to counting officials and K5,000 to security forces. It was reported that the money was given out after the declaration and after he thanked everyone involved for a peaceful election.
60. The Respondent and his witnesses denied the meeting took place at Muniputi village on the early morning of 22 June. They denied any payments made to anyone on 22 June 2012 at Muniputi, on that day and time, Mr. Lagea was at Maga village which is one and one half kilometers away from Muniputi, busy organizing his scrutineers and assisting them for the poling on 23 June 2012. He was not at his house at Muniputi. ARO Bernard Kambe said he was at Kagua Police Station organizing polling teams and ballot boxes and papers to send out. POs Felix Dulupia and Martin Yomo were with him that day at Kagua Station. Earlier on 19th of June at the Catholic Station, he ran a training program for POs and APOs for Aiya LLG poling word. He distributed K300 to each of the 24 polling teams as team advance money. The money, K7,200.00 was given to him by RO Albert Wenz, from cash advance of K27,080.00 given by PRO Joseph Timothy to Albert Wenz to cover election expenses for the Kagua-Erave electorate.
61. On 18 July 2012, at the last elimination, Mr. Lagea came out winner. RO Albert Wenz cleared the counting room and asked security personals to fetch Mr. Lagea for the official declaration. He came under escort and was officially declared winner. After the declaration, Mr. Lagea thanked everyone for a job well done and presented cash payments as a token of appreciation - K10,000 to counting officials, K5,000 to Army security personal and K5,00.00 to police security personnel. The K10,000 for counting officials was presented to RO Albert Wenz but he instructed another officer (Henry Map) to collect it on his behalf as he was busy with other things and was a distance away from Mr Lagea. The money for the Army personal was collected by Sgt. Peter Mol. The money of Police personal was collected by Henry Map. The payments were made in public in the presence of a lot of counting officials, POs for the remaining candidates, scrutineers for the remaining candidates polling officials and other onlookers who stood outside peeping through the windows. Mr. Lagea did not see anything wrong with the payment, and so did the three persons who received the money because other successful candidates in the province had also done the same.
62. The evidence given by both parties in the case is very much complete in terms of the key personnel involved in the aspects of the election process in question, in the form of POs, APOs, Scrutineers, RO, ARO and PRO. With the evidence I am able to assess and weigh the evidence and make findings of fact and draw reasonable inferences there from.
63. Returning to the elements of bribery, there is no question that the expression "a person" who is paid the money in s 103 (a)(iii) of the Code includes persons who are not electors but electoral officials.
64. I accept Mr Waisi's submission that the evidence has been produced with regard to the first three elements of bribery. As to whether the evidence is accepted as evidence of the truth is a point in contention; it is separate matter, which I will come to later in my judgment.
65. With regard to the fourth element, the purpose of the payment made at Muniputi is supported by the petitioner's evidence. As to whether the evidence is accepted as evidence of the truth is a point in contention; it is another matter, which I will come to later in my judgment.
66. With regard to the purpose of the payments made on 18 July at Mendi, the petitioner's evidence shows there were two lots of payments made to two groups of people. The first is the payment of K2,000 each to Felix Dulupia and Martin Yomo to fulfill the promise made at Muniputi. Whether their evidence is accepted as evidence of the truth is a separate matter which I will come to later.
67. The second payment made on 18 July is the payments made to counting officials and Police and Army security personnel. This payment is conceded by Mr Lagea. Whether the payments were made for the designated purpose in the Code, s 103 (a) (iii) (4th element of bribery) is a separate matter which I will deal with later in my judgment.
68. I have considered the evidence given by all witnesses, oral and documentary, and observed their performance and demeanor in the witness box when they gave their evidence.
69. With regard to the payments and promise made at Muniputi on 22 June 2012, the evidence for the petitioner were succinct and direct. They were cross examined at length and each of them gave evidence confidently and showed no sign of fear in giving evidence that could as well implicate them. But they were also argumentative and became agitated with counsel under cross examination. The fact that they come from the same village as the petitioner or related to the petitioner along tribal or martial lines may have fuelled passion in their evidence and their demeanor for that reason was adversely affected.
70. The petitioner's evidence was contested by the respondents' evidence with outright denial. In my view, the petitioner's evidence was and matched by the evidence of Mr Lagea, and Mr Kambe and Mr Raluame. The incident is said to have occurred at between 8-9.30 am in the morning, which was the same time Mr Lagea was organizing his scrutineers at Maga village where he was there all day. Given the vastness and rough terrains to cover, I can understand why it took him the whole day to be able to instruct and sign out his agents and scrutineers to cover the length and breadth of Kagua-Erave, for polling that would take place the next day. Similarly, Mr Bernard Kambe was organizing to send out polling teams at Kagua police station, sorting out ballot boxes and ballot papers for polling teams. Martin Yomo and Felix Dulupia were there amongst many POs and APOs with their polling teams who attended the preparations. The 22nd of June would have been a big day and busy day for polling officials and teams and both Mr Dulupia and Mr Yomo were expected to attend at the Kagua Station and the police station for assignment of responsibilities.
71. Evidence for both sides in relation to the events of 22 June 2012 matched, it comes down to the question of whom to believe and accept as witness of the truth. Granted the onus of proof carried by the petitioner, it falls on him to have put sufficient credible evidence before me; in particular supportive or corroborative evidence from some more independent witnesses to show this money was paid and promises made at Muniputi; in order to persuade me to accept his evidence and reject the respondents' evidence. The money was paid it seems in secret meeting at Mr Lagea's house at Muniputi but to polling officers in undisclosed number of POs and APOs. But the onus was on them to report the payment to the authorities such as police, village court officials or even church workers. Someone more independent who was not paid any money by Mr Lagea from Muniputi could have at least given evidence of the meeting taking place at Mr Lagea's house. As submitted by Mr Bonner of counsel for the first respondent, the petitioner's evidence lacks supporting evidence. It lacks weight.
72. In my view, there has also been not enough damage done to the first respondent's evidence to show that they are not witnesses of the truth and their evidence should not be accepted. In the circumstances, I am not persuaded by the Petitioner that I should make definitive and conclusive findings that Mr Martin Yomo and Felix Dulupia are witnesses of the truth and their evidence should be accepted as evidence of the truth; and reject the evidence for the respondents.
73. In my search of the evidence for a more independent and reliable piece of evidence, I find the Tally Sheets (Forms 66A 7 66B) produced by the counting officials at the counting center to be useful. Those forms were completed during the time of counting and counter signed by a number of polling officers including three scrutineer representatives which displaces any suggestion of manipulation to suit a particular candidate.
74. In their evidence, Martin Yomo and Felix Dulupia said they followed their instructions and did what Mr Lagea told them to do in their respective polling places. His instructions, amongst others, to Felix Dulupia, PO for Sumi (the petitioner's village polling place) was that he should cast his vote for him; ballot papers for illiterate voters should be marked first preference to Mr Lagea,; and, "when voters who know how to vote come into mark their votes for the petitioner, they were not to sign at the back of the ballot paper so that the votes would be rendered informal at the counting: Mr Dulupia's affidavit sworn 13 June 2013 (Exhibit "B'(Pet)), paragraph 18. I, ii, & iv. According to the entries made on Form 66A in respect of the Sumi box, James Lagea got only one vote and Mr Tulapi scored 572 votes of a total of 582 votes. Three votes were rendered informal. This scoreboard does not support the evidence of Felix Dulupia, except Mr Dulupia who said that one vote was his vote. There is no evidence to show how many literate voters cast their votes at Sumi and their votes were not counter signed by Mr Dulupia thus rendering them informal. According to Form 66A, Sumi registered only 3 informal votes and there is no evidence to show if they were rendered informal for lack of counter signature of the PO. Then the illiterate voters. There is no doubt that an overwhelming majority of voters from Sumi were illiterate and if Mr Dulupia followed his instructions as he says he did, then Mr Lagea would have scored heavily. The scoreboard shows he only scored that 1 vote from Sumi, which he said was cast by a lone supporter in Nelson Kapiak whilst the Petitioner scored 572 votes. If he did his job to earn the K500 given to him and claim the K5,000 promised, I am sure he would have performed better and Form 66A should show this. Mr Lagea's explanation is reasonable and credible.
75. With regard to Martin Yomo's evidence, he was the presiding officer for Usa polling place. His instructions from Mr Lagea were, amongst others, he should vote for Mr Lagea, the ballot papers of illiterate voters who called other candidates should be marked out to Mr Lagea, mark 2 to 3 ballot papers to Mr Lagea whilst pretending to assist an illiterate voter, and not to sign on the back of ballot papers of those who know how to vote but vote other candidates: Mr Yomo's affidavit sworn 13 June 2013 ( Exhibit "E"(Pet)), paragraph 13. He followed those instructions. Form AA shows Tulapi scored 65 votes, Mr Lagea scored 80 votes, and other 12 candidates scored votes ranging from 1 – 228 votes. Mr Ben Magani scored the highest with 228 votes followed by John Yano with the next highest at 114 votes, followed by Mr Lagea with 80 votes and Mr Tulapi next to him with 65 votes. There were 6 informal votes. Again, for the same reasons I gave in relation to Mr Dulupia's evidence, the scoreboard does not support Mr Yomo's story. If instructions were followed, as he said he did, then Mr Lagea would have performed better in the vote count. Instead he received 80 votes which he said was an increase by 19 votes from his 2007 votes; and Mr Tulapi was not far from him in votes received from the Usa box. Mr Yomo's performance did not justify the K500 payment he said he received and the promise of K5,000. Mr Lagea's explanation is more reasonable and credible.
76. The efforts of Mr Dulupia and Martin Yomo in terms of their contribution to the vote count in favour of Mr Lagea did not match the payment of K500 and promise of K5,000. Their efforts in securing the box and ensuring its safe passage to Mendi for the count is the work of the Electoral Commission. It was the joint effort of a lot of people including security personnel that was asked in the security and safety of ballot boxes and Mr Dulupia and Mr Yomo cannot claim credit for that and expect to collect their reward of K5,000. Any role played at the counting center to clear their respective boxes would have been made under close scrutiny and under the watchful eyes of many other scrutineers and counting officials which leaves little room to do anything else other than clear the boxes and leave the room after that. I find their evidence to be lacking in credibility and reliability and weight. There is no evidence adduced by the Petitioner from the respondents' witnesses through cross examination that lend support to their evidence in any event.
77. The evidence of the respondent's has not been shaken to an extent where their evidence is rendered incredible or unbelievable. Their evidence of what transpired on 22 June 2012 is plausible, and acceptable as evidence of truth. The key witnesses in Mr Lagea, Mr Bernard Kambe and Sam Raluame who gave direct evidence were not shaken in cross examination. The payments in polling team advances on the 19 July in the sum of K300 for each of the 24 polling teams suggests money was paid out from the hands of the ARO in charge of Aiya LLG (Mr Kambe) and the source of that money has been fully explained by Mr Albert Wenz (RO) and the PRO. The petitioner's evidence that Mr Kambe picked up Martin Yomo and Felix Dulupia to go to Muniputi to Mr Lagea's house has been strongly denied by Mr Kambe. I can understand the enormity of the task Mr Kambe faced on 22 June in organizing polling teams and ballot papers/ballot boxes to go out and would have no time to attend to feasting gatherings and to receive payments and instructions from any candidate including Mr Lagea. The 22nd of June would have been a big day and busy day for polling officials and teams and they would be expected to attend at the Kagua Station and the police station for assignment of responsibilities. Further, the 22nd of June would have been a big day and busy day for polling officials and teams to prepare for polling the next day and both Mr Dulupia and Mr Yomo were expected to attend at the Kagua Station and the police station for assignment of responsibilities.
78. It seems to me that the cash payments made by Mr Kambe to polling officials on 22 June and cash payments made by Mr Lagea after the training at the Catholic Station may have fuelled speculations and stories that the payments distributed by Mr Kambe came from Mr Lagea; that Mr Kambe distributed money to POs and APOs at Muniputi and followed through with payments to Mr Yomo and Mr Dulupia on 18 July. The payments made to Messrs Dulupia and Yomo on 18 July also sits in well with the payments Mr Lagea admits he paid to counting officials and security personnel on 18 July. It is clear to me that the story given by the petitioner's witnesses of these payments is a story of convenience and from the truth.
79. On the whole I reject the evidence of the Petitioner's evidence on the payment and promise of payment of monies at Muniputi on 22 June 2012. I accept the evidence of the respondents, to find that no such meeting took place and no such payments were made or offered.
80. With regard to the payments made to Mr Dulupia and Mr Martin Yomo at Mendi on 18 July 2012, for the same reasons to do with lack of supporting evidence and independent corroborative evidence, I reject their evidence. The evidence has been strongly refuted by Mr Lagea. His evidence was not shaken in cross examination and he gave good evidence. His demeanor was also well composed. The evidence of Messrs Dulupia and Yomo of receiving the money and pursuing the balance with Mr Lagea for what little, if not, no contribution to securing Mr Lagea's win in vote numbers speaks volumes about their credibility and propensity to seek out and demand payment for services rendered on behalf of the Electoral Commission for which they would be paid by the Commission.
81. Also the circumstances and physical conditions under which the payments are said to have been made has an air of a story of convenience, to build a case around the payments made to counting officials and security personnel in the open at the counting room by Mr Lagea.
82. There are many other aspects of their evidence that renders their evidence unbelievable but I list a few specific ones:
(1) In paragraph 11.3, it was alleged that the payments made to "electoral officials" and security personnel were made "when the First Respondent was declared duly elected". The petitioner's witnesses departed from the pleading when they gave their evidence. Mr Dulupia and Mr Martin Yomo and Mr Berry Yomo said he was brought in by security officials whilst the elimination process was still in progress and started distributing so much cash money in K100 notes to counting officials and Mr Dulupia and Mr Martin Yomo.
(2) The evidence of the petitioner's witnesses is at best unbelievable and one of convenience to suit the situation unfolding at the counting center, to make the story look convincing that the payments were made to procure his election victory and declaration. Mr Lagea, Mr Albert Wenz, Mr Jacob Wano, PNGDF Sgt Peter Mol and police Constable Henry Map confirmed that the payments were made after Mr Lagea was declared the winner and after his acceptance speech. The reliability and weight of their evidence dispels the evidence of the petitioner's evidence. I accept the respondent's evidence that he was brought in by security personnel after the elimination process had been completed, a winner has been arrived at, the counting area had been cleared for the official declaration to be made and the declaration was about to be made.
(3) Mr Lagea has admitted that he made the payments to counting officials and security personnel in public as a token of appreciation for the good work that they had done in ensuring a peaceful and successful election. As submitted by Mr Waisi, bribery is a secretive act because it is wrongful and corrupt act. But money is paid out in public for a reason and accepted by recipients without question, the criminality and corrupt element dissipates.
(4) There were many security personnel involved and the money when shared amongst them say in equal shares, would result in payments of smaller amounts paid. In the case of counting officials, there were 60 in the counting room so K10,000 would be apportioned at say K160 each. Mr Martin Yomo and Mr Felix Dulupia received K500 at Muniputi, then another K2,000 each at Mendi. What critical role had they played in procuring Mr Lagea's election for which they would get special treatment from Mr Lagea to justify payments in such substantial amount. There is no evidence. Their evidence is unbelievable.
(5) No other more independent witness has come to Court to give evidence of any other POs or APOs who received similar payments at Mendi in fulfillment of the promise made on 22 June at Muniputi.
(6) The evidence of the respondents' key witnesses is that POs and APOs left the counting center after they cleared their boxes for counting. They would have no reason to remain in the counting center after their boxes were cleared or in the case of scrutineers, after their candidate was eliminated. The petitioner was eliminated on the 16th elimination and Berry Yomo would not have been inside the counting center at the time of the declaration. The fact that the petitioner's witnesses gave the order of boxes counted for from Uma, Usa and Batri which conflicts with the order shown in Form 66A proves that they were not at the counting center throughout the counting up to declaration.
83. The petitioner's witnesses evidence that the irregularities committed at the counting center by counting officials to favour Mr Lagea's win lacks weight because the POs and APOs who were paid at Muniputi were not involved in the counting. They were escorted out of the counting center once their boxes were cleared for counting. Counting officials were not paid at Muniputi, and there were some 60 of them, so they would not be a privy to any scheme that may be cooked up between Mr Lagea and the POs and APOs.
84. The payments made by Mr Lagea to counting officials and security personnel is clearly wrong, improper and unconscionable. I do not accept Mr Lagea's evidence that that payment was a right or proper thing to do to show his appreciation for the job well done in running the election and producing him as the winner. These officials were on the government payroll on their substantive positions and paid additional allowances for electoral duties. I also do not accept the evidence of the respondent's witnesses, RO Albert Wenz, Sgt Mol, Const. Map that they saw nothing wrong in accepting the payments. The payments were made in not pocket or lunch money; they were in substantial amounts and cannot be easily dismissed as trivial. There is no proper evidence before me that other successful candidates in the Province did the same and he was following suit; even if they did, such payments would be clearly wrong, improper and unconscionable.
85. This part of Mr Lagea's defence case is the weak part that the petitioner through his lawyer could have explored in detail and adduced evidence through cross examination that would support its case; that the real purpose of the payment was a reward for them for procuring his return in the process of polling and counting. That did not happen. The petitioner had not done enough damage to discredit the respondents' evidence; and to establish the nexus between the payment and the procurement of his return. Another weak part is that Mr Albert Wenz and Bernard Kambe may have some prior association with Mr Lagea that may influence the way they carried out their electoral duties. Mr Lagea did explain that Mr Kambe was a work mate of his. Mr Wenz was not asked any questions on that during cross examination. Notwithstanding those weak parts of the respondents' case, the evidence of the respondents' witnesses on the whole were cogent, convincing and credible.
86. I have reached these findings and conclusions based on a consideration of the whole of the evidence and consistent with observation of the principles set out in OLNE, s 217. There are numerous aspects of the evidence, inconsistencies and contradictions in the evidence included, which were the subject of arguments of counsel, which taken on their own or collectively lend no real probative value to the determination of the merits of the substantive issues tried. Therefore, they are rendered insignificant.
87. For the foregoing reasons, I am not satisfied that there is evidence or sufficient evidence to support the four elements of bribery in accordance with the principles governing onus and standard of proof alluded to earlier in this judgment.
88. In summation, I make the following findings of fact:
(1) I am not satisfied that Mr Lagea made the payments of K500 each and promised to pay K5,000 each if he won the election, to Mr Martin Yomo and Mr Felix Dulupia at Muniputi on 22 June 2012. I find that no such payment and promise was made. I accept the evidence of Mr Lagea, Mr Bernard Kambe and Mr Sam Raluame on the events that transpired at Kagua Station, Kagua Police Station and at Maga village on that day.
(2) I am not satisfied that Mr Lagea made further payments of K2,000 each to Martin Yomo and Felix Dulupia on 18 July 2012 at the counting center at Momei Oval, Mendi on 18 July 2012 and held subsequent meetings and liaisons to pay the balance. I accept the evidence of Mr Lagea on those points.
(3) I am satisfied that Mr Lagea paid K10,000 to counting officials, K5,000 to police security personnel and K5,000 to defence force personnel as a token of appreciation and to thank them for "a job well done". I find that the payment was made immediately after his official declaration as the duly elected member for Kagua Erave and made in public at the counting center.
(4) I find that this payment was wrong and improper. The payees were paid by the State to carry out those electoral duties and this payment was unnecessary, wrong, improper and unconscionable.
(5) I am not satisfied that the payment referred to paragraph (3) was made for the purpose of procuring or for rewarding them for procuring his return. I am not satisfied that the nexus between that payment and the purpose for which the money was paid in terms of meeting the fourth element of bribery under Code, s 103 (a)(iii) has been established or proven to the required standard. Bribery is a corrupt act which is normally concealed from the public eye. The public distribution of the money removes any connotation that the payment was made to procure his return or as a reward for procuring his return within the terms and meaning of s 103 (a) (iii) of the Criminal Code.
Application of law to facts and conclusions
89. Based on the findings of fact set out in the preceding part of this judgment, I find that the Petitioner has failed to prove all four elements of bribery, to the required standard of proof. Bribery is a serious form of illegal practice and a high standard of proof is required to sustain the allegation. As submitted by Mr Waisi, it requires a "high standard of proof to be supported by higher level of sufficiency or evidence and weight to sustain the allegation; Corroboration and or supportive evidence from other witnesses is not a legal requirement but preferable and a good rule of evidence" ( citing Aihi v Avei (2004) N2523 at paragraph 88 of written submissions), This principle is firmly established in law and one that is necessary for the court to take into account in considering the "substantial merits and good conscience of the case": OLNE, s 217.
90. The payments made to counting officials and police and army security personnel is clearly a wrongful, improper and unconscionable payment; however, the payment made in public and accepted by those persons as a token of appreciation for their efforts in conducting a successful and peaceful election; is in my view, an act that falls short of criminal intent or purpose. At the same time, the persons responsible for the payment and acceptance of the monies should be made accountable for their wrongful, improper and unconscionable actions. It would go against the grain of thinking of ordinary persons witnessing the payment that the actions should not be condoned as it would send out wrong messages concerning the conduct of free and fair elections. I am concerned at the payment of such substantial amount of money to polling officials with total impunity and this Court must do something to correct the situation from repeating itself in future elections. A number of aspects of this case that should warrant some follow -up action by relevant authorities to correct what is clearly misconceptions and questionable conduct of witnesses who gave evidence.
91. Mr Albert Wenz, Constable Henry Map and Sgt Peter Mol should be referred to their respective employers or superiors for investigation for disciplinary charges for accepting payments outside of their lawful entitlements.
92. Mr Lagea is to be referred to the Ombudsman Commission to be investigated for possible misconduct in office.
93. OLNE, s 216 gives this Court power to report to the Electoral Commission and the Police Commissioner for investigation into any finding of breach of OLNE or any other law, it makes no provision for reporting persons who are found to have committed disciplinary breaches. I consider a finding as to disciplinary breaches to be a matter of discretion for this Court and I have exercised that discretion accordingly.
94. The Court will direct the Registrar of the Court to take appropriate actions to give effect to the maters in paragraphs 84 to 91.
95. The arguments in relation to the grant of the appropriate relief advanced by the Petitioner does not arise to be considered given the conclusions I have reached in relation to the petitioner's failure to prove the allegation of bribery.
Orders
96. For the foregoing reasons, I issue the following orders:
(1) The Petition is dismissed pursuant to s 212 (1)(i) of the Organic Law on National and Local – Level Government Elections.
(2) The Registrar shall give effect to the decisions contained in paragraphs 84 – 91 of this judgment, as follows:
- (a) Mr Albert Wenz shall be referred to the Electoral Commission or his respective employer or superior for investigation for disciplinary charges for accepting payments outside of his lawful entitlements.
- (b) Constable Henry Map shall be referred to the Police Commissioner for investigation for disciplinary charges for accepting payments outside of his lawful entitlements.
- (c) Sgt Peter Mol shall be referred to the Commander of the Defence Force for investigation for disciplinary charges for accepting payments outside of his lawful entitlements.
- (d) Mr Lagea shall be referred to the Ombudsman Commission to be investigated for misconduct in office under the Leadership Code for making payments to polling officials and Police and Army security personnel outside of their lawful entitlements.
(3) The Petitioner shall pay the Respondents' costs of the proceedings, to be agreed, if not, to be taxed.
(4) The security for costs held by the Registrar shall be expended towards meeting the said costs.
_____________________________________________________________
Waisi Lawyers: Lawyer for the Petitioner
Sam Bonner Lawyer: Lawyer for the First Respondent in EP 20 of 2012
Niugini Legal Practice Lawyers: Lawyer for the Second, Third and Fourth Respondents
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URL: http://www.paclii.org/pg/cases/PGNC/2013/134.html