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Talita v Ipatas [2013] PGNC 60; N5231 (7 June 2013)

N5231

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 101 OF 2012

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

BETWEEN

SANDY TALITA
Petitioner

AND

PETER IPATAS
First Respondent

AND

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Makail, J
2013: 05th & 07th June

ELECTION PETITIONS – PRACTICE & PROCEDURE – Application for change of venue f trial – Application arising from election dispute – Grounds of – Security of witnesses – Threats and intimidation of witnesses – Threats to petitioner's lawyers – Threat to administration of justice – Threat to a fair trial – Constitution – Section 155(4) – National Court Election Petition Rules, 2002 (as amended) – Rule 10.

Cases cited:

Pila Ninigi -v- Electoral Commission & Francis Awesa (2013) N5060
Sam Tei Abal -v- Robert Sandan Gamin & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 23rd April 2013)

Counsel:

Mr F Griffin, for Petitioner
Mr A Kongri, for First Respondent
Ms S Kapi, for Second Respondent

RULING ON APPLICATION FOR CHANGE OF VENUE FOR TRIAL OF ELECTION PETITION

07th June, 2013

1. MAKAIL, J: This is an application for change of venue for trial brought pursuant to section 155(4) of the Constitution and Rule 10 of the National Court Election Petition Rules, 2002 (as amended) ("EP Rules"). The petitioner seeks to have the venue of trial changed from Wabag National Court to Mt Hagen National Court.

2. He advanced three grounds:

2.1. Constant power interruption by PNG Power to Wabag town and Court house,

2.2. Threats and assault to witnesses and lawyers, and

2.3 Shortage of accommodation.

3. He accepted that the Court had made a decision to have the petition tried at Wabag National Court and had issued an interim injunction restraining parties, their supporters and agents from threatening, harassing and intimidating each other pending the determination of the petition but submitted that the circumstances have changed, thus prompting this further application. Fresh incidents of threats and intimidation of witnesses, supporters and lawyers have occurred since the last application was heard and decided. It was also emphasised that despite the existence of the interim restraining order, the first respondent and his supporters had gone ahead and carried out these threats of violence against him and his supporters and thus making his request for change of venue inevitable.

4. The first respondent opposed the application while the second respondent took a neutral position. The first respondent's reason is that, the Court had previously ruled that the trial of the petition be conducted at Wabag National Court. If the petitioner is aggrieved by that decision, he should have appealed it to the Supreme Court. In essence, the issue of venue of trial is res judicata.

5. I am satisfied I have discretion under section 155(4) of the Constitution to change the venue of trial if it is established that the circumstances have changed since the last application. The petitioner submitted that the since the last application, the first respondent's supporters have threatened him and his witnesses including his lawyers. They have even destroyed his property by setting fire to his motor vehicle. He submitted that all these were done to suppress his right and deny him a fair trial to challenge the results of the election.

6. In determining the venue for trial in an election petition, one of the considerations is security of witnesses. Pila Ninigi -v- Electoral Commission & Francis Awesa (2013) N5060 and Sam Tei Abal -v- Robert Sandan Gamin & Electoral Commission: EP No 61 of 2012 (Unnumbered & Unreported Judgment of 23rd April 2013) .

7. In support of the ground on security of witnesses, the petitioner has filed 16 affidavits and they are:

7.1. affidavit of petitioner filed on 18th April 2013,

7.2. affidavit of Robert Onix filed on 02nd May 2013,

7.3. affidavit of Pius Sapol filed on 02nd May 2013,

7.4. affidavit of Gordon Pakau filed on 02nd May 2013,

7.5. affidavit of Simon Nekoli filed on 07th May 2013,

7.6. affidavit of Hickory Kund filed on 07th May 2013,

7.7. affidavit of Paul Mupin filed on 02nd May 2013,

7.8. affidavit of Paul Mupin filed on 07th May 2013,

7.9. affidavit of James Asu Kakal filed on 07th May 2013,

7.10. affidavit of Petitioner filed on 07th May 2013,

7.11. affidavit of Petitioner filed on 13th May 2013,

7.12. affidavit of Junior Wapen filed on 16th May 2013,

7.13. affidavit of Nichol Laken filed on 16th May 2013,

7.14. affidavit of Dorothy Pakio filed on 16th May 2013,

7.15. affidavit of Susan Pini filed on 16th May 2013 and

7.16. affidavit of Paul Mupin filed on 21st May 2013.

8. The first respondent has filed a number of affidavits in response. The petitioner has given notice to cross-examine the deponents of those affidavits. They were not produced and the affidavits were not relied upon by the first respondent. I have read the petitioner and his witnesses' affidavits. As they have not been refuted by the respondents, they stand unchallenged.

9. Except where they are hearsay and will not be featured in this ruling, the admissible parts highlighted a number of incidents that constitute threats and intimidation which have jeopardised the security of witnesses. The petition was originally fixed for trial at Wabag National Court from 29th April to 31st May 2013. On the eve of the trial, the supporters of the first respondent from Kii tribe who are also the first respondent's material uncles damaged the petitioner's motor vehicle along the road near Teremanda village. The first respondent was seen at the scene of the incident that day and encouraged them to remove it from the road. It was later set on fire and pushed down a gully of a nearby creek.

10. Prior to that, on 27th April 2013, one of the petitioner's witnesses named James Asu Kakal was threatened by Wakani Apakali, a supporter of the first respondent to withdraw from giving evidence against the first respondent. He said that he would set fire to his house. Earlier on, at Sakales village, one of the supporters of the petitioner by the name of Hickey Kund was subjected to threats and intimidation in person and through telephone calls by supporters of the first respondent to withdraw as a supporter of the petitioner. These threats and intimidation culminated in the ransacking of his accommodation at the property of Kepakan Pakau during the week of the trial.

11. Another incident was on the morning of the first day of trial where the petitioner's lawyers were preparing to go to the Court house. First, the policemen arrived at the lodge where the petitioner and his lawyers were residing and pulled down the banner bearing a painting of the petitioner. Secondly, the mother of one of the petitioner's supporters by the name of Henry Tanda arrived at the gate of the lodge and yelled out demanding that Henry leave the lodge immediately.

12. Thirdly, when the petitioner and his lawyers arrived at the Court house, there was a big crowd outside the Court house. There were about 60 men with serious facial expression. They formed a cordon next to the car park of the Court house and watched everyone who entered the Court premises. Finally, there is no evidence that the supporters of the first respondent were aware of the existence of the interim restraining order. Given this, I am not satisfied I should hold this against them.

13. On the whole, I am satisfied that the supporters of the first respondent have orchestrated these incidents to suppress the petitioner's right to challenge the results of the election for Enga Provincial Electorate. Ultimately, it is a threat to the administration of justice. A fair trial is not possible.

14. I am satisfied the venue of trial should be changed. I order that it be changed to Mt Hagen National Court. Given this ruling, it is not necessary to consider the other two grounds. I will now hear parties on the convenient dates for trial.
____________________________________

Young & Williams Lawyers: Lawyers for Petitioner
Harvey Nii Lawyers,
as town agents for Paul Mawa Lawyers: Lawyers for First Respondent
Niugini Legal Practice Lawyers: Lawyers for Second Respondent