|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP No. 60 of 2012
Between:
BRYAN KRAMER
Petitioner
And:
NIXON PHILIP DUBAN
First Respondent
And:
ANDREW TRAVEN, Electoral Commissioner of Papua New Guinea
Second Respondent
Madang: Gavara-Nanu J.
2013: 5,7,13 to 15,18 to 20,22,23,25 & 26 March, 8 to 12, 17 & 18 April, 03 June
PRACTICE AND PROCEDURE - Election petition – Organic Law on National and Local Level Government Elections; ss. 208(a) and (d); 209,210,215,217 and 222 – Pleadings – Demeanour of witnesses – Credibility of the witnesses not being attacked while giving evidence – Power of the Court to exclude evidence received – No weight can be given to business records adduced through a secondary source.
PRACTICE AND PROCEDURE – Election petition – Bribery and undue influence – Evidence - Standard of proof – Evidence to be weighed objectively – Whether witnesses gave credible evidence and whether they corroborated each other on material aspects of their evidence.
Cases cited:
Aluago Alfred Kaiabe v. Francis Potape Mulungu (2008) N3329
Ben Micah v. Ian Ling Stuckey (1988) N1790
Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commission of Papua New Guinea (No.1) N5213
Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea of Papua New Guinea (No. 2) N5214
Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral
Commissioner of Papua New Guinea (No. 3) N5215
Mesulam Tomalana v. Rabaul Pharmacy [1991] PNGLR 65
Neville Bourne v. Manesseh Voeto [1977] PNGLR 298
Paru Aihi v. Sir Moi Avei [2004] PNGC 250, N2523
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Re James Eki Mopio [1981] PNGLR 416, SC 211
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Waranaka v. Dusava (2009) SC 980
Other cases cited:
Brown v. Dunn (1893) 6R 67 (HL)
Legislation and other laws cited:
Organic Law on Duties and Responsibilities of Leadership
Organic Law on National and Local Level Government Elections
Criminal Code.
Counsel:
Y. Wadau, for the petitioner
S. Jubi, for the 1st respondent
J. Umbu, for the 2nd respondent
1. GAVARA-NANU J: The petitioner is challenging the election of the first respondent as Member for Madang Open electorate in the 2012, general election which was declared on 24 July, 2012. The first respondent polled 8,483 votes and the petitioner who was the runner up polled 7,939 votes, thus a marginal difference of 544 votes between them.
2. The petition was filed on 31 August, 2012, it was later amended with leave on 31 October, 2012 (the petition).
3. The petition survived three interlocutory applications made by both respondents for it to be dismissed. The first application was by the first respondent, for the alleged failure by the petitioner to comply with the Court’s directions. The application was dismissed. The second application comprised of two objections to competency filed separately by the two respondents. Both applications were heard together and they were dismissed. The third application was by the first respondent to stop the trial at the conclusion of the petitioner’s case. This application was partly successful as it resulted in two grounds in paragraphs 5.3 and 5.5 of the petition being dismissed. The remaining two grounds in paragraphs 5.2 and 5.4 were ordered to proceed to trial. The Court published its decisions in all three applications: Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.1) N5213; Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No. 2) N5214 and Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No. 3) N5215.
4. The petition is pleaded in six paragraphs. The two grounds of the petition are pleaded in paragraph 5 which has five sub-paragraphs, viz. 5.1 to 5.5. The introductory statement of the paragraph gives the overview of the grounds of the petition, viz. bribery, attempted bribery and undue influence. In paragraph 5.1, the petitioner pleads the period in which the alleged corrupt, improper and illegal practices as prescribed under ss. 102, 103 and 106 of the Criminal Code and s. 215 (1) of the Organic Law on National and Local Level Government Elections (OLNLGE), were allegedly committed.
5. In paragraph 5.2 it is alleged that on Friday 20 April, 2012, at the Silopi parish youth camp held at Aufan village in the Transgogol Local Level Government area of Madang Province, which is in Madang Open electorate, the first respondent handed out K50 and K100 notes freely to the people. It is alleged that the first respondent gave out money to the people to induce them to vote for him in the 2012, general election. Names of eleven individuals who allegedly received money from the first respondent are pleaded in this paragraph. Two of those are Jeffery Sambe of Aufan village and Florence Borgor of Kuyambun village. It is alleged that Jeffery Sambe received K50 and Florence Borgor received K100. These two people gave evidence for the petitioner. They are both registered voters for the Madang Open electorate and they voted in the 2012, general election.
6. In paragraph 5.4 it is alleged that on 11 June, 2012, the first respondent presented a Gaming Board cheque for K300,000.00 to Yagaum Lutheran Rural Hospital (Yagaum Hospital) which was procured through the Office of the Prime Minister. It is alleged that when presenting the cheque the first respondent intended to unduly influence and induce those who were at the cheque presentation to vote for him in the 2012, general election. He did this by falsely telling the people that he was personally donating the money to the hospital. The cheque was received by the hospital Administrator, Mrs. Belid Pitau in the presence of a number of hospital Board members, management and staff and some people from the surrounding communities. The total number of people that witnessed the cheque presentation was around 200. The names of four individuals who the first respondent allegedly intended to unduly influence and induce to vote for him in the 2012, general election are pleaded in this paragraph. One of those is Sera Dadok, a member of the hospital Board. He gave evidence for the petitioner. He is a registered voter for the Madang Open electorate and voted in the 2012, general election.
7. At the pre-trial conference the petitioner indicated that he would call eleven witnesses. However, at the hearing he only called eight. The other three, namely Ninam Muke, Ponjam Gomniba and Kac Fanu could not be called. In the case of Ninam Muke he had a death in his family, in the case of Ponjam Gomniba he was said to be very sick and in the case of Kac Fanu, Mr Young Wadau of counsel for the petitioner decided not to call him because his evidence was similar to the evidence of the other witnesses of the petitioner who already gave evidence. All three were listed as witnesses for the petitioner. This is confirmed by the notice filed by the petitioner under s. 35 of the Evidence Act, Chapter No. 48, (Doc. No.39).
8. Despite being listed as a witness for the petitioner, Kac Fanu was later called as a witness for the first respondent. Because of this, the affidavit he swore in support of the petitioner as a witness for the petitioner was tendered in cross-examination by Mr. Wadau to rebut the oral evidence he gave for the first respondent and the two affidavits he swore for the first respondent. The petitioner also called an extra witness, namely Fuawawe Borgor, mother of Florence Borgor to give rebuttal evidence against two of the first respondent’s late witnesses. Thus the petitioner ended up calling a total of nine witnesses.
9. Kac Fanu is the Deputy Chairman of Yagaum Hospital Board and is one of the four people named in paragraph 5.4 of the petition who witnessed the cheque presentation by the first respondent at Yagaum Hospital. He is also one of those who the first respondent allegedly induced or attempted to induce to vote for him in the 2012, general election.
10. All the witnesses for the petitioner except Fuawawe Borgor swore affidavits which were all tendered in evidence.
11. At the start of the trial the application by Mr. Wadau to have the affidavits of the three witnesses, including that of Kac Fanu tendered in evidence was unsuccessful. The application was opposed by counsel for the respondents because the three deponents of the affidavits were not made available for cross-examination.
12. Turning now to the events of 20 April, 2012, at the youth camp at Aufan village, the two prominent events to be noted are the first respondent's speech and the first respondent allegedly giving money freely to the people. Firstly, in the speech the first respondent is alleged to have told the people that he was there to campaign and declared to the people that he was a candidate in the 2012, general election. He also told the people that he was in the Parliament and was the adviser to Prime Minister Peter O’Neil and had just arrived from Port Moresby. Secondly, soon after the first respondent gave his speech, it is alleged that as he walked to his vehicle, he gave K50 and K100 notes freely to the people. He threw some of the money in the air and the people rushed from all directions to get money from him and collect money that fell on the ground. It is alleged that this was when Jeffery Sambe and Florence Borgor received K50 and K100 respectively from the first respondent. The petitioner’s witnesses who witnessed this are Florence Borgor, Pastor Bon Nelson, Tulilim Saneum and Jeffery Sambe. Pastor Nelson was the organiser of the camp and the master of ceremony. He also led Bible studies. Tulilim Saneum is the Chairman of Silopi parish which hosted the camp. Pastor Nelson is also the pastor of Silopi parish. According to Pastor Nelson and the other witnesses for the petitioner, Tulilim Saneum was also the chairman of the camp organising committee.
13. Referring first to the evidence of Jeffery Sambe, he confirms in his affidavit that when the first respondent gave his speech, he told the people that he was the chief advisor to Prime Minister O’Neil and was in the "engine room" of the Prime Minister. The first respondent also told the people that when he advised the Prime Minister, the Prime Minister listened to his advises. Jeffery Sambe also says in his affidavit that after making the speech the first respondent gave K1,000.00 to the camp organising committee. This evidence is confirmed by other witnesses for the petitioner. Then as he walked to his vehicle he gave money freely to "whoever" was there. Jeffery Sambe says he saw people rushing from all directions to get money from the first respondent and as the first respondent walked past him, the first respondent gave him K50.00. Jeffery Sambe was amazed and surprised to receive the K50.00 from the first respondent. After the first respondent got into his vehicle and as he was about to drive off, Jeffery Sambe heard a voice coming from inside the first respondent’s vehicle saying – “wanem samtin yupela kisim nau, yupela mas tingim Nixon”. He says when he heard that, he knew that the first respondent was giving money freely to people so that they would vote for him in the 2012, general election.
14. It should be noted that Jeffery Sambe was not really cross-examined on his evidence regarding the first respondent giving out money freely to the people, including himself and on the statements made by the first respondent in his speech. Mr Joppo Umbu of counsel for the second respondent elected not to cross-examine Jeffery Sambe who also confirms in his affidavit that the first respondent declared to the people in his speech that he was a candidate in the 2012, general election.
15. Jeffery Sambe’s affidavit material is consistent with his oral evidence.
16. Jeffery Sambe is 32 years old, he is a Grade 10 leaver and lives in his village. He is a Village Recorder for Ward 2 in the Transgogol Local Level Government. He was a member of the organising committee of the camp held at Aufan village in April, 2012 and was the camp secretary. He voted in the 2012, general election.
17. Florence Borgor told the Court that the first respondent gave a long political speech in which he told the people that he was in the Parliament and was advisor to the Prime Minister. She saw the first respondent give out K50 and K100 notes freely to the people after making his speech. She saw the first respondent throw money in the air. The people rushed to get money from the first respondent and collect the money that fell on the ground. She said she was standing close to the first respondent when this happened. When she tried to go and get money from the first respondent, some people who were rushing to get money from the first respondent bumped her and she fell to the ground. She was embarrassed so she just stood and watched. The first respondent then called her and gave her a K100 note and said to her – ‘think of me”. She said she needed money so she used K50.00 from the K100.00, she gave the other K50.00 to her parish youth Chairman, Koff Gamoga. She said when she went to get K100 from the first respondent the people who already got money from the first respondent were already moving away from the first respondent.
18. Florence Borgor’s oral evidence is consistent with her affidavit evidence sworn on 10 October, 2012. In the affidavit she corroborates Jeffery Sambe's affidavit evidence. In paragraph 10 of her affidavit she says, when the first respondent gave her K100.00, the first respondent also said to her in pidgin - “Bryan ino nap wokim wanpela samting bilong yupela, yupela mas tingim mi", or in English – “Bryan cannot do anything for you people, you people must think of me”.
19. Florence Borgor says in her affidavit that because the first respondent gave K100.00 to her, she voted for him in the 2012, general election.
20. It should be noted that the youth camp at Aufan village was attended by the youths from five parishes in the Amele circuit of the Evangelical Lutheran Church. Florence Borgor attended the camp with some members of the Marik parish of which she was a member. The Chairman of Marik parish was Koff Gamoga.
21. Florence Borgor says in her affidavit that she completed Grade 7 in 2004. By 10 October, 2012, when she swore her affidavit, she was 23 years old.
22. Pastor Nelson is 41 years old from Kainantu in the Eastern Highlands Province. He says in his affidavit that Amele circuit wanted to conduct a youth camp at Silopi parish so he was asked to organize and co-ordinate the camp by the members of the parish. He started preparing for the camp a week early from 8 April, 2012. The five parishes that attended the camp were, Silopi, Marik, Fulumu, Amele and Bel. Five community leaders were invited by the camp organizing committee to go and talk to the people at the camp on 20 April, 2012. The first respondent was not one of them. The five invited guest speakers were Sam Aloi, Chairman of Yagaum Hospital Board, Chief Inspector Jim Namora, Moris Ban, President of Transgogol Local Level Government Council, Bryan Kramer (the petitioner), Youth Link and Buka Goli Malai, then Member for Madang Open electorate. Invitations to these five guest speakers were already sent out when a member of the camp organizing committee, Joe Mero also known as Joe Ume, asked for the first respondent to be invited as well. Pastor Nelson told Joe Mero that he did not agree with inviting the first respondent because the program was already full.
23. Pastor Nelson says in his affidavit that on 20 April, 2012, three of the invited guest speakers did not turn up at the camp. Only Sam Aloi and the petitioner turned up. The program of the day was a Bible quiz so when the petitioner arrived at about 2.00pm, the Bible quiz was stopped to allow the petitioner to give his speech. At about 2.30pm, the first respondent arrived. After the petitioner finished his speech and left the camp, although the first respondent was not invited, because he was already at the camp, Pastor Nelson asked him to speak. Pastor Nelson corroborates the affidavit evidence of Jeffery Sambe and Florence Borgor regarding what the first respondent said in his speech. Pastor Nelson also deposes in his affidavit that the first respondent told the people that he was not there to waste time on election awareness, he was there to campaign for the election. In his speech, the first respondent talked about his own achievements and told the people to vote for good leaders.
24. Pastor Nelson confirms in his affidavit that after the first respondent finished his long speech he took out K1,000.00 from his wallet and invited the chairman of the camp organizing committee to go and receive the money, but Joe Mero went forward and received the money. Pastor Nelson then on behalf of the camp organising committee and its chairman thanked the first respondent for the money and shook hands with him. The first respondent then shook hands with others near him. Then he walked to his vehicle and gave money freely to people. Pastor Nelson saw youth, men and women run from all directions towards the first respondent to get money. Pastor Nelson was not happy with the first respondent giving money freely to the people because it was against the spirit of the camp. He just stood and watched the people get money from the first respondent. The first respondent then left the camp.
25. During the camp Tulilim Saneum was in-charge of cooking and preparing food for the campers. He says in his affidavit that Amele circuit wanted his parish to conduct a youth camp so Pastor Nelson was given the task of organizing the camp and sending invitations to the community leaders to go and speak to the people at the camp. He says when the first respondent arrived at the camp, Pastor Nelson met him and introduced him to the people. He confirms the evidence of Jeffery Sambe, Florence Borgor and Pastor Nelson regarding what the first respondent said in his speech. He also confirms that after the speech, the first respondent invited the chairman of the camp organising committee to go and receive K1,000.00 from him but Joe Mero went and received the money instead. He also saw the first respondent give K50 and K100 notes freely to the people as he walked to his vehicle. He saw men, women and children rush from all directions to get money from the first respondent. He also says he heard the people that accompanied the first respondent to the camp telling the people – “Nixon is a true and very strong man and you all must think of him”. He was not happy with the first respondent giving out money freely to the people, because to him it was a clear sign of a bad leader and the first respondent was bribing people to vote for him in the 2012, general election.
26. He says on the next day Joe Mero gave him K600.00 from the K1,000.00 he received from the first respondent the previous day. He says, during election he did not vote for the first respondent because he was not happy with him giving out money freely to the people.
27. In his oral evidence, Tulilim Saneum told the Court that when the first respondent gave his speech, he told the people that he was the right hand man of the Prime Minister and if he said ‘yes’ then ‘yes', if he said ‘no’ then ‘no’. In other words the Prime Minister listened to whatever advice he gave him. In cross-examination he told the Court that when the first respondent gave out money to the people he was about 10 meters from the first respondent, he saw the people shouting and rushing to get money from the first respondent. He also saw the first respondent throw K50 and K100 notes in the air and people collected them from the ground. He said the first respondent announced to the people that he was a candidate in the 2012, general election. He said Pastor Nelson was at the camp when the first respondent gave his speech and gave out money freely to the people.
28. In regard to the events that took place at Yagaum Hospital on 11 June, 2012, the petitioner called three witnesses viz; Sam Aloi, Danny Gulul and Sera Dadok. Sam Aloi was first to be called, he told the Court that sometime before 11 June, 2012, he received an email from the hospital Administrator Delin Pitau informing him that the first respondent was going to present a cheque to Yagaum Hospital. He decided not to attend the cheque presentation because he did not believe the first respondent was donating the money personally and the fact that the cheque was being presented to the hospital on the eve of the general election. He said because the first respondent did not disclose the source of the cheque, Delin Pitau was led to believe that the first respondent was donating the money personally to Yagaum Hospital. He said the cheque was for a big amount and the presentation should have been done in an open and transparent way. He discovered through his own investigations that although the cheque was secured from the Gaming Board through the Office of the Prime Minister, these facts were not disclosed by the first respondent to the people who witnessed the presentation. Sam Aloi ascertained these facts after the first respondent presented the cheque to Yagaum Hospital. Sam Aloi told the Court that because the presentation was not done in a transparent way, an urgent meeting of the hospital Board was convened a week after the cheque was presented to Yagaum Hospital. In the meeting the Board decided to stop the cheque from being used by Yagaum Hospital.
29. On 11 June, 2012, Danny Gulul and Kac Fanu who were also members of the Yagaum Hospital Board, were attending a church conference at Silibob village. They were picked up from the conference by Yagaum Hospital ambulance and taken to Yagaum Hospital to witness the cheque presentation by the first respondent. After the presentation they were taken back to the conference by the same ambulance. Sera Dadok was also at the presentation. Danny Gulul and Sera Dadok told the Court that when presenting the cheque, the first respondent made a long political speech in which he told the people that he was the chief advisor to the Prime Minister and advised the Prime Minister on all important political matters and was in the "engine room" of the Prime Minister.
30. Sera Dadok told the Court that the first respondent also told the people that he had personally secured K1.2 million funding for Yagaum Hospital infrastructure developments and the K300,000.00 he presented to the hospital was part of the K1.2 million.
31. Sam Aloi also discovered through his own investigations, that the cheque came from the Gaming Board following a request made by the Prime Minister in a letter to the Chairman of the Gaming Board in March, 2012. In the letter the Prime Minister asked the Gaming Board to fund the infrastructure developments for Yagaum Hospital and asked specifically for K1,227,245.46 to be paid to the hospital.
32. Sam Aloi obtained five documents during his investigations, the documents disclose more information on how the cheque was secured from the Gaming Board and the events that happened after the cheque was presented to Yagaum Hospital. The documents are attached to Sam Aloi’s affidavit as Annexures “S”, ”S1”, “S2”, “S3” and “S4”. Annexure “S” is a copy of the email by Delin Pitau to Sr. Nira, which was copied to Sam Aloi. This is the email in which Delin Pitau told Sr. Nira and Sam Aloi that the first respondent was going to donate K300,000.00 to Yagaum Hospital. The email is relevant to the issues before the Court and is reproduced in full below:
From: Belid Karup Pitau [[email protected]]
Sent: Tuesday, 5 June 2012 12:02 PM
Cc: Samuel Aloi
Subject: Donation for Yagaum Hospital
Dear Sr. Nira,
In regard to the above subject, I take this time to officially inform you that we, the hospital management team have signed an MOA for a funding of K1.2 million on Friday 25th May, 2012 and are looking forward for a ground breaking ceremony anytime from now.
Mr. Nickson Duban is donating this fund for our hospital facility upgrading.
I am setting a hospital Project management team as per LHS policy to work with me and an expatriate contractor named RED ROCK Investment Ltd that Mr. Duban has engaged and we have signed MOA with.
It was a surprise and one day activity to meet and then to sign the MOA at the end of that Day (sic.).
I have just informed the Board Chairman and am meeting with the Board Vice Chairman and a Community Leader this afternoon to set up the Project management team.
I attach the copies of the Hospital Facility Upgrade and Equipment funding documents that I presented to the donor, Mr. Duban and the RED ROCK Construction (Project Manager).
Currently, we are using a separate Project Account for Canteen and Difaem Project funds and will continue to use this project account for all other Project funding to avoid mingling with the misused/mismanaged funds.
I will need Deborahs (sic.) assistance to set up our separate project MYOB for accounting and reporting for our projects.
Your response to this update would be appreciated.
Thanks and you have a top day.
33. Annexure "S1" is a copy of the letter by the Prime Minister to the Gaming Board Chairman written in March, 2012, asking the Gaming Board Chairman to fund the infrastructure developments for Yagaum Hospital. Annexure "S2" is a copy of the Gaming Board cheque for K300,000.00 dated 2 May, 2012, made in favour of Yagaum Hospital. Annexure "S3" is a copy of the letter dated 10 May, 2012, by the Chairman of the Gaming Board, Qwentan Chollai to the Manager, Bank South Pacific, Paramount Banking. The letter was made attention to Ms. Hilda-Anne Wefin, Relationship Account Manager. In the letter the bank was asked to clear the cheque for the hospital. The letter is also relevant, it reads:
"This is to confirm that Community Benefit Fund Cheque # 821 dated 02/05/2012 for the amount of K300,000.00 was paid to Yagaum Lutheran Hospital for infrastructure improvement.
Pleas assist them by having the funds cleared into their account".
34. Annexure "S4" is a copy of the letter dated 7 June, 2012, by Delin Pitau to the first respondent. In the letter Delin Pitau told the first respondent that the MOA signed between the hospital management and the contractor engaged by the first respondent, Red Rock Ltd to carry out the infrastructure developments for the hospital, was informal as it was signed without the knowledge and authority of Yagaum Hospital Board. Delin Pitau told the first respondent that the MOA was for that reason put aside by the Board. This letter is also relevant and is reproduced in full below:
07th June, 2012
To:
Donor: Mr Nickson Duban
Candidate for Madang Open
Dear Mr. Duban,
Sub: Request for Meeting with Hospital Board re Donation
In regard to the subject above, we had an urgent meeting today in relation to your Donation for the Hospital.
Board appreciates your donation as a blessing for the hospital. But in terms of policies and formalities, the Hospital Executive Management Team has by passed the Board in signing the MOA without the Boards (sic) knowledge and presence.
The Hospital Board therefore put aside the MOA as informal document and hereby request a round table discussion to review MOA.
We (The Hospital Management Team) appreciated your heartfelt donation for our hospital and never thought of contacting the Board before and at the time of signing the MOA. We now look forward for a meeting with you as soon as possible at your convenience.
Please inform us so we can get the Board members together to meet with you.
I remain in Christ service.
Belid Bahude Pitau
Administrator
cc: Sr. Nira- ELC-MASE Regional Secretary
Mr. Samuel Aloi – Board Chairman
35. Sam Aloi says in his affidavit that it was not proper for the first respondent who worked for the Prime Minister and who was a candidate in the 2012, general election under the Prime Minister's PNC Party, to present the cheque to Yagaum Hospital and the contracting company, Red Rock Ltd in which the first respondent had interest to sign the MOA with the hospital management for the company to carry out infrastructure developments for the hospital. Sam Aloi says further that the fact that the cheque was raised as early as 2 May, 2012, but not given to Yagaum Hospital until 11 June, 2012, which was at the height of the campaign period for the 2012, general election lends support to the petitioner's claim that the cheque was intended to buy votes for the first respondent. He says this inference is further supported by the letter from the Chairman of the Gaming Board to the Bank South Pacific which is Annexure "S3" to Sam Aloi's affidavit, asking the bank to assist Yagaum Hospital by clearing the cheque for the hospital.
36. It is significant to note that the purpose of the short letter by the Chairman of the Gaming Board to Bank South Pacific was to ensure that the cheque was deposited or paid directly into the Yagaum Hospital account. This is clear from the direction to the bank to assist in clearing the cheque. So the pertinent questions that arise from these facts are: how and why did the cheque end up with the first respondent and why was the cheque not deposited into Yagaum Hospital bank account as directed by the Gaming Board Chairman? Furthermore, why was the cheque not given to Yagaum Hospital until after one month and one week, on 11 June, 2012, which as noted earlier was at the height of the campaign period for the 2012 general election? So the timing of the presentation of the cheque viz; that it was presented to Yagaum Hospital by the first defendant at the height of the campaign period for the 2012, general election adds significant weight to the allegations made against the first respondent.
37. Sam Aloi also says that it was not proper for the first respondent to engage Red Rock Ltd, a contracting company in which he had personal interest, to carry out the infrastructure developments for Yagaum Hospital soon after he presented the cheque to the hospital. He says the manner in which the cheque was presented to Yagaum Hospital was directly against the hospital Board's policy of transparency and for such major projects to be put out on public tender for interested contractors to bid for the work. In this case, the first respondent dealt directly with the hospital management without the Board's knowledge and approval and tried to secure the work for his company.
38. The first respondent called five witnesses. The first to be called was Kac Fanu, his evidence was in relation to the events of 11 June, 2012, at Yagaum Hospital. Kac Fanu told the Court that the first respondent did not tell the people that he was donating the K300,000.00. He also said the first respondent did not tell the people that he had personally secured K1.2 million for the hospital. He said he was at the cheque presentation because Sam Aloi told him to attend. He confirmed that Danny Gulul and Sera Dadok were present at the cheque presentation. They all sat together and were about six meters away from the first respondent.
39. He told the Court in his evidence-in-chief that the first respondent in presenting the cheque told the people that the cheque was from the Prime Minister's Office to assist the hospital.
40. However, in cross-examination, he agreed that the first respondent also told the people that he was an advisor to the Prime Minister and the Prime Minister listened to his advises. This evidence corroborates the evidence given by the petitioner's witnesses. He confirmed that after the first respondent was elected, the petitioner asked him if he could be his witness, he agreed so he had an interview with the petitioner, the petitioner took his statement down in writing. In the interview, he gave his story about what happened at Yagaum Hospital on 11 June, 2012, during the cheque presentation.
41. Kac Fanu swore two affidavits for the first respondent, they were both tendered in evidence. The respective dates on which the affidavits were sworn are not given in the affidavits but they were both filed on 27 November, 2012. The affidavits are Exhibits "K1" and "K2". In the affidavit marked "K1", Kac Fanu says the first respondent donated a cheque for K300,000.00 to Yagaum Hospital before he became a Member of Parliament. Kac Fanu says the K300,000.00 was part of K1.2 million funding for Yagaum Hospital. He says Delin Pitau and the hospital staff were very happy with the donation. In the last paragraph of the affidavit he says when he saw his name mentioned in the National newspaper on 27 September, 2012, as a witness for the petitioner, he was not happy because his name was mentioned without his knowledge and consent. He expresses the same disappointment in his other affidavit marked "K2".
42. The affidavit sworn by this witness in support of the petitioner is Exhibit "L". In this affidavit, he among other things, confirms that during the cheque presentation at Yagaum Hospital the first respondent told the people that he was an advisor to the Prime Minister on all political matters and that he had secured K1.2 million funding for the hospital. He says the first respondent also told the people that K300,000.00 was part of the K1.2 million. Again this evidence supports the evidence given by the petitioner's witnesses.
43. The other witness was Bayom Bunag, he is also a member of the hospital Board. He told the Court that before he became a member of Yagaum Hospital Board in 2011, he assisted the former Administrator of the hospital to prepare a submission to the Government for funding assistance to the hospital. He said he did not know whether the former Administrator made a submission to the Government.
44. Two witnesses that gave evidence regarding the events that took place at the youth camp at Aufan village on 20 April, 2012, were Joe Mero and Koff Gamoga. Joe Mero told the Court that he was the chairman of the camp organizing committee. This claim is disputed by the petitioner's witnesses. They said Joe Mero was only a committee member and his responsibility during the camp was to oversee security.
45. Joe Mero was present at the camp when the first respondent gave his speech. He told the Court that the first respondent only spoke for three minutes then walked back to his vehicle. He said the first respondent greeted some of his relatives who were there as he walked to his vehicle, told stories with them, gave some money to them for their betel nut, chewed betel nut with them, then left in his vehicle.
46. Joe Mero said he heard and saw everything that the first respondent said and did. He said he saw a K50 note drop from the first respondent's wallet as the first respondent was walking to his vehicle and fixing his wallet. He heard someone calling out to the first respondent "you dropped your K50.00". He said he did not know what happened to the K50 note. Then when the first respondent opened the door to his vehicle to go into the vehicle, as a sign of respect and as the chairman of the organising committee, he went and thanked the first respondent then closed the door to the vehicle for the first respondent, the first respondent then left.
47. Joe Mero said he did not see the first respondent giving money to the people. He also said he did not see the people rushing to get money from the first respondent. He said the first respondent did not give K50.00 to Jeffery Sambe, who he agreed was also present when the first respondent gave his speech. He also said he did not see the first respondent giving money to a female or a female being bumped to the ground by people.
48. Joe Mero told the Court that when the first respondent gave his speech, he only told the youth to be responsible because one day they would be adults. The first respondent told the youth to work hard, grow coconut, coacoa and betel nut. When he was asked by Mr Samson Jubi of counsel for the first respondent whether the first respondent said anything else, he said that was all that the first respondent said. However, in cross-examination, he agreed that the first respondent also told the people that he was in the Parliament and was in the Prime Minister's "engine room". He agreed that he asked the camp organising committee to invite the first respondent to speak to the people at the camp. He said after the first respondent gave his speech, the first respondent gave K1,000.00 to the camp organising committee. He says as chairman of the camp organising committee, he went and received K1,000.00 from the first respondent. He also confirmed that he later gave K600.00 from that K1,000.00 to Tulilim Saneum. Again this evidence corroborates the evidence of the petitioner's witnesses.
49. In his affidavit filed on 27 November, 2012, Joe Mero says he is the chief co-ordinator for the Evangelical Lutheran Church in Madang Province. He says the youth camp was held from 15 to 21 April, 2012, and he was tasked to assist in overseeing security at the camp. This part of his evidence corroborates the evidence of the petitioner's witnesses.
50. Koff Gamoga attended the camp with six members of his Marik parish, including Florence Borgor. He denied receiving K50.00 from Florence Borgor at the camp. He told the Court that the name of the girl that attended the camp from his parish was Mok Borgor not Florence Borgor.
51. He also confirmed that the first respondent gave K1,000.00 to the camp organising committee after the first respondent finished his speech. He first agreed that as the respondent walked to his vehicle, he shook hands with the people and gave money to them. However he later changed his story and said he only heard the people rushing past him to get money from the first respondent. He said he did not actually see the people getting money from the first respondent because his head was bowed. He however saw the first respondent drop a K50 note which the first respondent picked up then gave to someone. He said he did not go and get money from the first respondent. When he was asked in cross-examination why he did not look up to see the people that were rushing past him to get money from the first respondent, he said he did not see because his head was bowed.
52. In regard to the K50 note that the first respondent is alleged to have dropped, he changed his earlier story and said that someone picked it up and gave it back to the first respondent. This story clearly contradicts his earlier story that he saw the first respondent pick up the K50 note and gave it to someone. He also said the first respondent spoke for about 15 to 20 minutes. This story contradicts the evidence of Joe Mero that the first respondent only spoke for three minutes.
53. Koff Gamoga also swore an affidavit on 10 April, 2013. He says in the affidavit that he was surprised that the girl who gave evidence for the petitioner gave her Christian name as Florence. He says the girl is his neighbour in his village and her Christian name is Mok not Florence. He also says he is a representative of Lagogen Primary School Parents and Citizens Association and is a member of the school Board. He has attached a copy of a note which was purportedly signed by the Head Master of the school on 8 April, 2012, to his affidavit. In the note the Head Master purportedly certified that a Borgor Mok attended the Lagogen Primary School and completed Grade 6 in 2003. In the note, Koff Gamoga is also referred to as the PCA Vice Chairman. The Head Master then purportedly attached to the note a purported school record which Koff Gamoga says is for a Mok Borgor.
54. The last witness for the first respondent was Tamou Yoginai. He is a paternal uncle of Florence Borgor, viz; a brother of Florence's father. His evidence was that the Christian name of the girl who gave evidence for the petitioner was Mok not Florence. He said this is the only name she is known by since birth and Mok is also her baptism name. He said Mok was born in Lae but was baptized in the church at his Kuyambun village here in Madang in 1992, when she was three years old. After her baptism her parents took her back to Lae in 1992.
55. Because the evidence of Koff Gamoga and Tamou Yoginai regarding Florence Borgor's Christian name were new, the petitioner was allowed to call Fuawawe Borgor, the mother of Florence Borgor to rebut their evidence. Fuawawe Borgor told the Court that she decided to give evidence to clarify her daughter's name because her brother in-law Tamou Yoginai had lied to the Court about her daughter's name. She told the Court that Florence is her daughter's Christian name since birth. She said Florence is the name she gave her when she gave birth to Florence at Angau Memorial Hospital in Lae in 1985. She said Florence was baptised at Malanghan Lutheran church in Lae. She explained that because Florence is her first daughter she is also called or referred to as "Mok" by her people. She said in Madang where her husband comes from, her daughter is also called or referred to as "Matu". She said these are not Florence's given names but they are village names.
56. She told the Court that her family left Lae in 1995 and came to Madang, that was when Florence started school at Lagogen Primary School. As far she knows Florence is also the name recorded in the school.
57. There is no dispute that the writ for Madang Open electorate was issued on 18 May, 2012, and the polling commenced on 23 June, 2012. There is also no dispute that allegations against the first respondent are bribery and undue influence or attempted bribery and undue influence. These are offences under ss. 102 and 103 of the Criminal Code, which come under the heading: "Corrupt and Improper Practices at Elections" under Division 3 of the Criminal Code. They are also illegal practices under s. 215 of the OLNLGE, which if proved, will constitute grounds for the Court to declare the first respondent's election void.
58. The petitioner claims that the first time these illegal practices were committed was on 20 April, 2012, when the first respondent allegedly made a long political speech then later gave out cash in K50 and K100 notes freely to the people at the youth camp held at Aufan village. The second time was on 11 June, 2012, at Yagaum Hospital, when the first respondent allegedly made a long political speech then presented a cheque for K300,000.00 to the hospital.
59. The illegal practices are pleaded in paragraphs 5.2 and 5.4 of the petition as grounds to invalidate or avoid the election of the first respondent under s. 215 (1) of the OLNLGE.
60. There is no issue regarding the competency of these grounds as the issue has already been determined: Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.2) (supra).
61. The petitioner carries the onus to prove the alleged illegal practices against the first respondent. The petitioner submitted that the intention by the first respondent to bribe or unduly influence voters is evident from his actions and the political speeches he delivered at the youth camp at Aufan village on 20 April, 2012, and at Yagaum Hospital, on 11 June, 2012. The actions of the first respondent which are of relevance are giving K50 and K100 notes freely to the people at the camp at Aufan village and presenting the K300,000.00 cheque to Yagaum Hospital without disclosing the source of the cheque. The related matters to be taken into account are the timing of the presentation of the cheque in that, it was presented at the height of the campaign period for the 2012, general election in which the first respondent was a candidate for the Madang Open electorate standing under the Prime Minister's PNC Party. The Prime Minister's part is also a relevant consideration given that the first respondent was a candidate standing under the Prime Minister's PNC party for the 2012 general elections. The Prime Minister personally wrote to the Chairman of the Gaming Board asking for a specific amount for Yagaum Hospital. It was in response to the Prime Minister's letter that the Gaming Board cheque for K300,000.00 was raised for Yagaum Hospital. The undisputed evidence strongly indicates that the presentation of the cheque to Yagaum Hospital by the first respondent on 11 June, 2012, was politically motivated, the effect of which is that the cheque was not presented in good faith. To me, this explains why and how the cheque ended up with the first respondent and why it was presented by the first respondent to Yagaum Hospital on 11 June, 2012. It also explains why it was not deposited into Yagaum Hospital's bank account as requested by the Chairman of the Gaming Board in his letter to Bank South Pacific dated 10 May, 2012.
62. All three counsel argued that the standard of proof the petitioner carries to prove his allegations of bribery and undue influence, or attempted bribery and attempted undue influence, is the criminal standard or proof beyond reasonable doubt. I have in Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.2) (supra) and Bryan Kramer v. Nixon Phillip Duban and Andrew Traven, Electoral Commissioner of Papua New Guinea (No.3) (supra), held that the standard of proof in election petition trials for such allegations cannot be beyond reasonable doubt or the criminal standard for the basic reason that election petition trials for such allegations are not criminal proceedings or trials brought under the Criminal Code. An election petition is a civil cause which means the standard of proof has to be lower than the criminal standard: Re James Eki Mopio [1981] PNGLR 416; SC 211.
63. The argument by counsel was based on what the National Court said in Neville Bourne v. Manasseh Voeto [1977] PNGLR 298. The head note in that case reads:
"Held: (1) The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the grounds relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference."
64. With great respect I think this passage constitutes the ratio of the decision of the learned trial Judge, Frost CJ. When the ratio is read in the broader context of what his Honour said at pages 300 to 302, in my respectful opinion, it becomes plain that the emphasis by the Court was that allegations of bribery and undue influence constituting grounds of a petition as in this case have to be proved "to the entire satisfaction" of the Court. The Court explained this by stating: "that is to say it may be just short of the criminal standard..." The last leg of the statement which reads: "although in application there being no real practical difference"- relates to the onus on the petitioner to prove every element of bribery and undue influence but that is not to say that the standard of proof is the criminal standard. Allegations of bribery and undue influence which are illegal practices in election petitions will, if proved, constitute grounds to avoid an election or the return of a successful candidate under s.215 (1) of the OLNLGE. Such allegations when made in the context of an election petition are not criminal offences or charges, although they would constitute criminal offences under ss. 102 and 103 of the Criminal Code. In an election petition they are allegations of civil nature or "civil cause" hence the standard of proof carried by the petitioner to prove them naturally cannot be the criminal standard. The standard of proof will rise to criminal standard if bribery and undue influence are charged and prosecuted as criminal offences under ss. 102 and 103 of the Criminal Code. In such a case the appropriate penalties in the event of a guilty verdict are specifically prescribed in the two respective sections, viz. fines not exceeding K400.00 or imprisonment for a term not exceeding one year. Section 215 (2) of OLNLGE reflects this distinction by stating that a successful candidate whose election has been declared void for committing illegal acts of bribery and undue influence can still be prosecuted under ss. 102 and 103 of the Criminal Code.
65. I am of the respectful opinion that this approach accords with what the Supreme Court said in Re James Eki Mopio (supra). In that case the Court was considering the appropriate standard of proof in proceedings brought under the Organic Law on Duties and Responsibilities of Leadership (Leadership Code). The Court at page 419 said:
"Misconduct in office is not itself a criminal offence but if found carries adverse consequences of the most serious kind. Such a conclusion will depend upon adverse findings of provable facts, and before findings are made, the decision maker must be reasonably satisfied by clear and convincing evidence of the occurrence or existence of those facts."
66. The Court at page 420 then said:
"There is a solid body of authority against introducing the criminal standard of proof into civil causes: Hocking v. Bell [1945] HCA 16; (1945) 71 C.L.R 430 at pp. 464, 500; Reifek v. McElroy [1965] HCA 46; (1965) 112 C.L.R 517.
Many standards of proof have been laid down by the courts. Proof of adverse facts must be "clear, unequivocal and convincing": see Woodby v. Immigration and Naturalization Service [1966] USSC 184; (1966) 385 U.S. 276; "The tribunal must be comfortably or confidently satisfied that the charges have been made out"; Re Hodgekiss (1962) 62 S.R. (N.S.W.) 340; "It is not enough if from facts admitted or proved a reasonable inference can be drawn": Hickman v. Peacey [1945] A.C 304; "The onus is upon the petitioner to prove to the entire satisfaction of the Court, the ground relied upon": In Re Menyamia Open Parliamentary Election [1977] P.N.G.L.R 298; A degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved": Reiffek v. McElroy (supra) and Re A Barrister and Solicitor (1979) 40 F.L.R. 1 at 21" (my emphasis).
67. This statement in my respectful opinion affirms my view that the standard of proof in election petition trials for bribery and undue influence or attempted bribery and attempted undue influence as in Neville Bourne v. Manasseh Voeto (supra) is not the criminal standard. In that case, after considering all the evidence the learned trial Judge said at page 308:
"That, then is the evidence to which I have briefly referred and it is now for me to make up my mind what part of this evidence is such that I can act upon it to my entire satisfaction and that I can be sure in accepting"(my emphasis).
68. This is further reflected by paragraph (6) of the head notes which reads:
"(6) On the evidence, it has been proved to the entire satisfaction of ' the court that the respondent had (by telling a large gathering of electors that they would be fined if they did not vote for him and if they did vote for him they would not be fined or pay money) prevented or obstructed the free exercise of the franchise by an elector which amounted to undue influence, and accordingly the election should be declared void in accordance with s. 215 (1) of the Organic Law on National Elections" (my emphasis).
69. Thus with respect, I hold a firm view that the standard of proof applied in Neville Bourne v. Manasseh Voeto (supra) is to the entire satisfaction of the Court and not the criminal standard or proof beyond reasonable doubt. This view has in my respectful view, also been applied in recent cases: Sir Arnold Amet v. Peter Charles Yama SC 1064; Paru Aihi v. Sir Moi Avei (2004) N2523; Aluago Alfred Kaiabe v. Francis Potape Mulungu (2008) N3329; Waranaka v. Dusava (2009) SC 980 and Ben Micah v. Ian Ling Stuckey (1998) N1790.
70. The petitioner in this case must therefore prove to the entire satisfaction of the Court that the first respondent committed acts of bribery and undue influence or attempted to commit bribery and undue influence on 20 April, 2012 and 11 June, 2012. Turning now to the alleged illegal practices committed by the first respondent, I will reverse the order in which these allegations are pleaded and discuss firstly the allegation of undue influence. I will then discuss the allegation of bribery. In this way the allegations are also addressed in the order they are respectively constituted in ss. 102 and 103 of the Criminal Code.
71. In regard to undue influence, it should be sufficient for the petitioner to prove that the first respondent by fraud obstructed or interfered with the free exercise of the franchise by an elector in the 2012, general election. Fraud in this sense includes any false promise or statement made by the first respondent during his respective speeches to an elector which was known to be false or without belief in the truth of such promise or statement. Or carelessly made a promise or statement whether the promise or statement be true or false with the intention that the elector should act upon such promise or statement. It is not necessary for the petitioner to prove that the elector was actually induced to vote for the first respondent: Neville Bourn v. Manasseh Voeto (supra).
72. The intention to influence an elector is a matter to be inferred from the established facts.
73. In regard to bribery, it should be sufficient for the petitioner to prove that the first respondent gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure an elector any property or benefit of any kind in order to induce the elector to vote for him in the 2012, general election.
74. It should be noted that proof of only a single act of bribery or undue influence or attempted bribery or undue influence is enough for the Court to declare the election of the first respondent void under s. 215 (1) of the OLNLGE: Raymond Agonia v. Albert Karo [1992] PNGLR 463 at 467 to 468.
75. It should also be noted that the Court has wide discretion to either reject totally or partially, the evidence received. The discretion must of course be exercised properly: Neville Bourne v. Manasseh Voeto (supra).
76. I turn now to discuss the credibility of the evidence adduced by the parties. Firstly in regard to the evidence adduced by the petitioner regarding the events of 20 April, 2012, there is evidence from Pastor Nelson, that the first respondent was not one of the leaders who were invited to speak to the people at the camp. His name was suggested by Joe Mero who was a member of the camp organizing committee. I accept Pastor Nelson's evidence that he advised against the first respondent being invited, but because he turned up at the camp, he was allowed to make a speech. As will be seen, the first respondent was invited personally by Joe Mero. The petitioner's witnesses have all told the Court that when the first respondent spoke he made a long political speech.
77. The petitioner's witnesses also told the Court that the first respondent gave out money in K50 and K100 notes freely to the people at the camp, including K100 to Florence Borgor and to Jeffery Sambe. Florence Borgor told the Court that she voted for the first respondent in the 2012, general election because the first respondent gave her K100.
78. Tulilim Saneum says in his affidavit that when the people received money from the first respondent they said – "Nixon is a true man and very strong man you all must think of him". Then after the first respondent got into his vehicle he heard someone inside the first respondent's vehicle say –"wanem samtin yupala kisim nau, yupela mas tingim Nixon."
79. All the witnesses for the petitioner also told the Court that the first respondent told the people who were gathered at Yagaum Hospital to witness him present the K300,000.00 cheque to the hospital, that he was in the Parliament and was in the Prime Minister's "engine room". They said the first respondent also told the gathering that he was an advisor to the Prime Minister and the Prime Minister listened to his advises. They said the first respondent also told the people that he had secured K1.2 million funding for Yagaum Hospital and K300,000.00 was part of the K1.2million.
80. The first respondent's witnesses who were at the youth camp at Aufan village on 20 April, 2012, denied that the first respondent gave out K50 and K100 notes to the people. Joe Mero was first to give evidence. He told the Court that the first respondent only spoke for three minutes during which he told the young people that one day they would be adults and they should work hard and plant coconut, coacoa and betel nut. Joe Mero was subsequently contradicted on this point by Koff Gamoga who said the first respondent spoke for 15 to 20 minutes. Joe Mero also told the Court that after the first respondent spoke, the first respondent removed K1,000.00 from his wallet and asked for the chairman of the camp organising committee to go and receive the K1,000.00 from him. He said as he was the chairman, he went and received the K1,000.00 from the first respondent. In his evidence-in-chief when he was asked by Mr. Jubi what the K1,000.00 was for, he said – "To support the church because he received my letter." This statement corroborates Pastor Nelson's evidence that it was Joe Mero who invited the first respondent to speak at the camp.
81. The following questions and answers between Mr. Jubi and Joe Mero are significant:
Mr. Jubi: After you got the money from Mr. Duban what happened?
Joe Mero: He sat down after he finished speaking. As he was getting up to leave, he was fixing his wallet and K50 note fell out of his wallet
Mr. Jubi: Then?
Joe Mero: He continued walking someone called out – "You dropped K50". That K50 fell down. I don't know what happen to the K50 note. All I heard was someone dropped K50.
82. Koff Gamoga also contradicted Joe Mero's evidence in other material aspects. He said there were two occasions when the first respondent gave out money; first is when he gave away K50 that dropped from his wallet; second is when he gave money to people which he did not see because his head was bowed. Before this, when the Court asked him if he saw the people get money from the first respondent he said: "I only heard people rushing to get money, as I was sitting, I was looking down." He said the first respondent was sitting near him when he saw the first respondent drop K50. So Koff Gamoga confirmed the petitioner's witnesses' evidence that the first respondent gave out money to the people. Joe Mero denied this. These are material inconsistencies in the evidence of the first respondent's two principal witnesses.
83. When questioned further in cross-examination by Mr. Wadau, Koff Gamoga said: "I was sitting and they went past me, so I don't know what happened." Wadau then asked – "So many people ran past you?" His answer was – "The one you are referring to I don't know but as to K50, someone picked it up and gave it back to Mr. Duban." This clearly contradicts his earlier evidence that the first respondent gave the K50 to someone. This is a major inconsistency in his evidence.
84. The contradictions between the evidence of Joe Mero and Koff Gamoga are telling. Koff Gamoga's evidence clearly corroborates the evidence of the petitioner's witnesses regarding the first respondent giving out money to the people at the camp and the people rushing to get money from the first respondent.
85. In regard to the evidence given by the witnesses for both parties regarding the events that happenedl at Yagaum Hospital on 11 June, 2012, the petitioner's witnesses; namely, Sera Dadok and Danny Gulul corroborated each other on the things the first respondent said in his speech when presenting the cheque for K300,000.00 to Yagaum Hospital. I find no contradictions in their evidence, their evidence tie up. Their evidence includes their claim that the first respondent told the people that he had secured K1.2 million funding for Yagaum Hospital and the K300,000.00 cheque was part of the K1.2 million. They also told the Court that the first respondent told the people that he advised the Prime Minister on all important political issues.
86. It is also noted that Kac Fanu in his affidavit for the petitioner corroborates the evidence of Sera Dadok and Danny Gulul.
87. When giving evidence for the first respondent, Kac Fanu told the Court that when presenting the K300,000.00 cheque to the hospital the first respondent told the people that the cheque was from the Prime Minister to help the hospital. He told the Court that Sera Dadok and Danny Gulul were seated next to him and they were not far from the first respondent. In re-examination when he was asked by Mr. Jubi to explain what he meant when he said in his affidavit that the first respondent "donated" K300,000.00 to Yagaum Hospital, he said he used the word "donate" because the first respondent was the one who delivered the cheque to the hospital. When asked by Mr. Jubi to tell the Court about what he understood about the cheque, he said he believed the cheque was from the Prime Minister.
88. In cross-examination, Kac Fanu agreed that the first respondent told the people that he was the chief advisor to the Prime Minister. Kac Fanu also told the Court that when the petitioner asked him if he was willing to be his witness, he told the petitioner that he was willing to be his witness and gave his story to the petitioner about the events of 11 June, 2012, at Yagaum Hospital. No doubt, this is why he swore the affidavit for the petitioner on 11 October, 2012.
89. The other witness for the first respondent was Bayom Bunag who was a Yagaum Hospital Board member. He told the Court that in 2010, he helped the previous hospital Administrator to make a submission to the Government for funding for Yagaum Hospital infrastructure developments. He said he was not a Board member at that time but he assisted the Administrator as a member of the community. He said he did not know whether the previous Administrator submitted the funding request for Yagaum Hospital to the Government. I have decided not to give any weight to this story because there is no evidence that the request was actually submitted to the Government by the previous Administrator for funding assistance for Yagaum Hospital.
90. Bayom Bunag told the Court that the first respondent did not say much in his speech at Yagaum Hospital. He said the first respondent only said the Prime Minister was not able to attend the cheque presentation because he was busy with other commitments. He said the first respondent told the people that he was there as an advisor to the Prime Minister to present the cheque. Bayom Bunag also told the Court that the first respondent did not tell the people that he had secured K1.2 million funding for Yagaum Hospital and that the K300,000.00 was part of K1.2 million.
91. Bayom Bunag confirmed that there was a MOA signed between the hospital management and a company associated with the first respondent called Red Rock Ltd, for the company to carry out infrastructure projects for the hospital. He said the MOA was later discussed by the Board in an urgent meeting. The Board resolved in that meeting that the MOA should be put aside because it was not approved by the Board.
92. The pivotal question then is has the petitioner proved to the entire satisfaction of the Court that the first respondent committed acts of bribery and undue influence or attempted bribery and attempted undue influence on 20 April, 2012, at the youth camp at Aufan village and on 11 June, 2012, at Yagaum Hospital? Firstly, in relation to the events of 20 April, 2012, at the youth camp at Aufan village, apart from the evidence of the petitioner's other witnesses that the first respondent gave out money freely to the people, there is direct evidence from Florence Borgor that in the 2012, general election, she voted for the first respondent because he gave her K100.00. This evidence appears to be enough to satisfy the elements of bribery and undue influence. Even if I rejected Florence Borgor's evidence, there is other overwhelming evidence which satisfy the elements of attempted bribery and attempted undue influence by the first respondent. Secondly, in relation to the events that happened on 11 June, 2012, at Yagaum Hospital, apart from the evidence of other witnesses for the petitioner indicating that the presentation of the K300,000.00 cheque to the hospital was not made in good faith, there is direct evidence from Sera Dadok that in the 2012, general election, he voted for the first respondent because of his generous donation of K300,000.00 to the hospital. This evidence also appears to be enough to satisfy the elements of bribery and undue influence. Even if I rejected Sera Dadok's evidence, again there is other overwhelming evidence which satisfy the elements of attempted bribery and attempted undue influence by the first respondent.
93. I nevertheless, consider that I still need to go further and consider the evidence adduced by the first respondent. This is necessary to enable the Court to determine whether on the balance, the petitioner has proved the allegations made against the first respondent to the entire satisfaction of the Court.
94. Turning first to the evidence of Joe Mero who was first to give oral evidence for the first respondent regarding the events of 20 April, 2012, at the youth camp at Aufan village, I observed him closely in the witness box and paid particular attention to his demeanour. This is because according to his own evidence he was the one who wrote to the first respondent and invited him to speak to the people at the camp, which to me indicates that he and the first respondent had known each other before 20 April, 2012. This also indicates to me that Joe Mero had a vested interest and possibly an ulterior motive in inviting the first respondent to speak at the camp. I found Joe Mero not be a truthful witness. In my view he exaggerated and fabricated his evidence. For instance, in his evidence-in-chief he said when the first respondent gave his speech, he only told the youth to work hard and plant coconut, coacoa and betel nut. However, in cross-examination he agreed that the first respondent also told the people that he worked in the Parliament and was in the "engine room" of the Government and the Office of the Prime Minister.
95. Joe Mero also referred to himself as the chairman of the camp organising committee. This cannot be true because Pastor Nelson who was asked by the Silopi parish to organize the camp said Tulilim Saneum was the Chairman of Silopi parish and the camp organizing committee. According Pastor Nelson, Tulilim Saneum and Florence Borgor, Joe Mero was only a member of the camp organising committee, and during the camp his only task was to oversee security. This is corroborated by Joe Mero's own evidence. Having observed Pastor Nelson and Tulilin Saneum who are both elderly church leaders, I have no reason to disbelieve them and I accept their evidence.
96. Joe Mero is from Kairuku in the Central Province, he is married in Aufan village and goes to Silopi parish. He is only an ordinary member of the parish, whereas Tulilim Saneum is the Chairman of the parish. Therefore logically, Silopi parish being the host for the camp, if anyone was to be the chairman of the camp organizing committee between these two men, it had to be Tulilim Saneum. Indeed Tulilim Saneum also told the Court that he was the chairman of the camp organising committee, it also makes sense.
97. I am also of the firm view that Joe Mero lied when he said the first respondent only took three minutes to make his speech. This is incredible, it also does not make sense that the first respondent who was invited purposely by Joe Mero to speak at the camp spoke for only three minutes. In any event as noted earlier, Joe Mero was contradicted on this point by Koff Gamoga who said the first respondent spoke for 15 to 20 minutes. I have no doubt that Joe Mero lied about the time the first respondent took to deliver his speech.
98. I am also of the firm opinion that Joe Mero made false denials that the first respondent did not give out money freely to the people at the camp. In any event, he was contradicted again on this point by Koff Gamoga. Joe Mero's story about the first respondent dropping K50 from his wallet is in my opinion a recent invention. Joe Mero gave me the impression that he was determined to give evidence which would favour the first respondent. When weighing his evidence against the evidence of Jeffery Sambe, Pastor Nelson and Tulilim Saneum, I find his evidence unconvincing.
99. In regard to the evidence of Koff Gamoga, firstly, I also think his story about the first respondent dropping K50 from his wallet was a recent invention. He and Joe Mero gave conflicting stories on this point, I think they both lied. The story was fabricated by both men in an attempt to support the first respondent. Koff Gamoga also contradicted himself in material aspects of his evidence. He first said he saw the first respondent give out money to the people but then later denied it. He said he only heard people rushing past him to go and get money from the first respondent. He said he was not able to see the people because at that moment his head was bowed. I find this unbelievable. He has not explained why his head was bowed when the people were rushing past him. Furthermore, if he did not see the people rushing past him, how then was he able to say that the people rushed past him to go and get money from the first respondent? His story does not make sense. One would think that the natural thing for him to do in such a situation was to look up and see why the people were rushing past him. The truth clearly is that he saw the people rushing past him to go and get money from the first respondent and saw the people get money from the first respondent. That is why he said the people rushed past him to go and get money from the first respondent.
100. As to his evidence that he did not receive K50 from Florence Borgor, again I do not think he told the truth. I observed him closely in the witness box and found him to be evasive and selective in his answers especially in cross-examination. In some instances he took long pauses to answer questions put to him. Some of his answers made little or no sense at all. He also struck me as someone who came to Court prepared to lie on oath. I therefore give no weight to his evidence.
101. In case of Tamou Yoginai, he was given leave by the Court to give evidence because the Court was led to believe that he was going to give evidence generally in support of the petitioner. As it turned out, his evidence was intended to attack the credibility of Florence Borgor, more particularly evidence regarding her Christian name. When Florence Borgor came and gave evidence for the petitioner, she gave her Christian name as Florence. Tamou Yoginai was called to prove that Florence Borgor's Christian name was Mok not Florence. His evidence was centred around this issue. Florence Borgor's mother Fuawawe Borgor was called by the petitioner to rebut Tamou Yoginai's evidence. She said Florence Borgor's Christian name is Florence not Mok, she said Mok is the name given to first born girls in her area.
102. I have decided not to give any weight to Tamou Yoginai's evidence for two reasons. Firstly, the evidence offends against the rule in Brown v. Dunn (1893) 6R 67 (HL), in that if the first respondent claimed that Florence Borgor's Christian name is Mok and not Florence, it should have been put to her in cross-examination so that she had the opportunity to either deny or explain it. Secondly, Florence Borgor's mother told the Court that Florence is the name she gave her when she gave birth to her at Angau Memorial Hospital in Lae. Tamou Yoginai also said Florence Borgor was baptised in his village here in Madang. Again this was disputed by Fuawawe Borgor, who said her daughter was baptised at Langhan Lutheran Church in Lae. I see no reason why I should not accept Fuawawe Borgor's evidence. She is the mother of Florence and she must know where and when she gave birth to her and the name she gave to her daughter. She also struck me as a witness of truth. I observed Tamou Yoginai closely in the witness box, he was hesitant and took long pauses to answer probing questions put to him in cross-examination. I have no doubt that he also deliberately lied on oath, this has discredited the whole of his evidence. I find Fuawawe Borgor's story credible and I accept it fully. I will give no weight to Tamou Yoginai's evidence.
103. Koff Gamoga who is also a member of the Parents and Citizens Association of Lagogen Primary School told the Court that Florence Borgor's name was not registered at that school. He produced documents purporting to be records from that school, which purport to show that the name registered in that school is Mok Borgor. The documents included a note purporting to be written by the Head Master of the school certifying that a person by the name of Borgor Mok was a student at that school. Koff Gamoga also produced what appeared to be school records for Mok Borgor. I have decided not to give any weight to these documents because they could only be tendered either through the Head Master or someone who kept the records in the school. Furthermore, the Court was told by Mr. Jubi that this evidence was going to be given by the Head Master of the school, but the Head Master was not called. Obviously Koff Gamoga is not the person to give this evidence. The documents lack authenticity, they have no credibility and lack substantial merit: Mesulam Tomalana v. Rabaul Pharmacy [1991] PNGLR 65.
104. In the result, I find that the evidence of the first respondent's witnesses regarding the events of 20 April, 2012, was tainted with lies and fabrication and must be rejected. I cannot say the same about the evidence of the petitioner's witnesses. To me their evidence tied up neatly and made sense; they struck me as witnesses of truth and I accept their evidence.
105. In regard to the events of 11 June, 2012, at Yagaum Hospital firstly, I find that the evidence of Kac Fanu for the first respondent was discredited by the affidavit he swore for the petitioner, which corroborates the evidence of the petitioner's witnesses. Furthermore, in his evidence-in-chief he told the Court that the first respondent did not tell the people that he was donating K300,000.00 to the hospital. However, this evidence was given in answers to leading questions put to him by Mr. Jubi. I will give no weight to the evidence which were elicited through leading questions: Neville Bourne v. Manasseh Voeto (supra).
106. In regard to the evidence of Bayom Bunag, part of his evidence that deserves attention by the Court relates to the MOA. He agreed that the MOA was executed between Yagaum Hospital management and Red Rock Ltd without the knowledge and authority of the hospital Board. As a result, the MOA was later put aside by the hospital Board. This evidence is consistent with the documentary evidence adduced by Sam Aloi.
107. Thus, from the evidence of the petitioner's witnesses including the documentary evidence adduced through Sam Aloi, I find that the first respondent did say that he secured K1.2 million for Yagaum Hospital. I also find that the first respondent did not disclose the actual source of K1.2 million funding for Yagaum Hospital.
108. I also find that even if the source of the K1.2 million had been disclosed, the actions of the first respondent would have still amounted to bribery and undue influence as constituted in ss.102 and 103 of the Criminal Code. This view is based on the fact that the first respondent was a candidate for the 2012, general election and stood under the Prime Minister's PNC Party. A relevant matter to note is that the funds were secured personally by the Prime Minister from the Gaming Board. The special relationship between the Prime Minister and the first respondent lends support to the view that the presentation of the cheque to Yagaum Hospital on the eve of the general election was politically motivated. The delivery of the K300,000.00 cheque at the height of the campaign period for the 2012, general election in my opinion very clearly put the first respondent at an unfair advantage over other candidates. This is evidenced by Sera Dadok voting for the first respondent in the 2012, general election because of what he described as a generous donation of K300,000.00 by the first respondent to Yagaum Hospital. This was a clear case of a voter being induced to vote for the first respondent and further, the voter's free exercise of the franchise in the 2012, general election being obstructed and interfered with. Other salient factors to note are that the cheque was presented during the campaign period, by which time, the first respondent had declared that he was a candidate for the Madang Open electorate. Furthermore, although the cheque was raised on 2 May, 2012, it was not presented to Yagaum Hospital until well over a month on 11 June, 2012. Furtherstill, the cheque was secured personally by the Prime Minister under whose party the first respondent stood for the 2012 general election. All these factors point to one conclusion, viz. the presentation of the K300,000.00 cheque to Yagaum Hospital on 11 June, 2012, was to induce voters, including Sera Dadok to vote for the first respondent in the 2012, general election. The presentation of the cheque was very clearly politically motivated and was not made in good faith.
109. Thus, in regard to the allegations of bribery and undue influence, the evidence adduced by the petitioner in my opinion establishes and satisfies all the elements of bribery and undue influence. There is overwhelming evidence that the first respondent on 20 April, 2012, gave K50 and K100 notes respectively to Jeffery Sambe and Florence Borgor at the youth camp at Aufan village. He also gave out money freely to the people at the camp. This was done purposely to induce voters to vote for him in the 2012, general election.
110. The first respondent did not give evidence, so he himself has not provided any explanation for giving out such free money to the people, including Jeffery Sambe and Florence Borgor.
111. As I said, I accept Florence Borgor's evidence that she voted for the first respondent in the 2012, general election because the first respondent gave her K100. I also accept Sera Dadok's evidence that he voted for the first respondent in the 2012, general election because he thought the first respondent made a generous donation of K300,000 to Yagaum Hospital which benefited his people.
112. I am also satisfied that when the first respondent gave K50 and K100 to Jeffery Sambe and Florence Borgor respectively, he intended to induce them to vote for him in the 2012, general election. The first respondent's actions amounted to interfering with the rights of Sera Dadok and Florence Borgor to the free exercise of the franchise in the 2012, general election.
113. The intention by the first respondent to bribe and unduly influence Jeffery Sambe and Florence Borgor can be clearly noted from the first respondent's actions and the things he said in his speeches. In Florence Borgor's case, the first respondent told her "to think of him". It is clear from the evidence that the first respondent was telling Florence Borgor to think of him in the 2012, general election and vote for him.
114. There is also evidence that the people who were associated with the first respondent told the people who received money from the first respondent on 20 April, 2012, to think of him. Again, to me the associates of the first respondent were telling the people to think of the first respondent in the 2012, general election and vote for him because of the free money they received from him. This is the only reasonable inference that can be drawn bearing in mind also that just before giving out money to the people he declared that he was a candidate in the 2012, general election. Therefore, in my view it is also clear that the first respondent giving money to the people was not done in good faith, but rather it was to buy their votes.
115. In Jeffery Sambe's case, there was an attempt by the first respondent to bribe him. He was given K50 by the first respondent for no apparent reason than to buy his vote. However, Jeffery Sambe did not vote for him because he was not happy with the first respondent giving money freely to the people to buy their votes.
116. The fact that the cheque for K300,000.00 came from the Gaming Board was not disclosed to the people who witnessed the cheque presentation at Yagaum Hospital. This is further proof that the cheque was not presented in good faith. It was only after Sam Aloi made his own inquiries that he found out that the cheque was from the Gaming Board. This in my opinion, was an act of fraud by the first respondent in that he deliberately and dishonestly did not disclose the source of the K300,000.00 cheque. This inference is supported by the fact that he tried to engage a private company associated with him, namely Red Rock Ltd to carry out the infrastructure developments for Yagaum Hospital under the MOA signed between the hospital management and the company. Had the hospital Board not put aside the MOA, the company would have carried out the work for the hospital, for which the company would have been paid for its services from the K300,000.00 the first respondent presented to the hospital. He himself would have benefited directly from any payments that would have been made to the company. This in my opinion further fortifies the view that the presentation of the cheque by the first respondent was done fraudulently and for his personal interests.
117. For the foregoing reasons, I find that the petitioner has proved to the entire satisfaction of the Court that the first respondent on 20 April, and 11 June, 2012, committed illegal acts of bribery and undue influence as well as attempted bribery and attempted undue influence, under ss. 102 and 103 of the Criminal Code and s. 215 (1) of the OLNLGE.
118. For his relief, the petitioner submitted that the Court should either order a recount or declare the first respondent's election void and declare him as the duly elected Member for Madang Open electorate. I have decided against granting such relief for two basic reasons firstly, such relief has not been pleaded in the petition and secondly, granting such relief is not appropriate in cases such as this where the election result has been declared void on the basis of acts of bribery and undue influence and attempted bribery and attempted undue influence committed by the winning candidate. Such relief would be appropriate in cases where the petitioner is disputing the manner in which the votes were counted or where ballot boxes had been wrongly rejected by a Returning Officer, this case does not fall into that category.
119. Thus, the only relief I can grant is the relief sought in the petition. I therefore make following orders:
i. The election of Mr. Nixon Phillip Duban as Member for the Madang Open electorate which was declared on 24 July, 2012, is void.
ii. I order the second respondent to immediately conduct a by-election for the Madang Open electorate.
iii. I order that K5,000.00 security deposit paid by the petitioner to be refunded to him forthwith.
iv. The respondents to pay the petitioner's costs of and incidental to this petition on 50/50 basis.
v. The findings and orders made herein will be conveyed to the Speaker of Parliament and the Head of State as soon as possible.
121. Orders accordingly.
____________________________________________________
Young Wadau Lawyers: Lawyers for the Petitioner
Twivey Lawyers: Lawyers for the first Respondent
Harvey Nii Lawyers: Lawyers for the second Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2013/360.html