Litigants who cannot appeal often try to dress an appeal up as a review. This decision explains why that fails, and what a review can and cannot do.
Peter Wararu Waranaka v Gabriel Dusava and Electoral Commission [2009] PGSC 11; SC980
Supreme Court, Waigani — Kandakasi, Lay and Gabi JJ, 8 July 2009. SC Review 18 of 2008, under section 155(2)(b) of the Constitution.
What happened
Mr Waranaka won the Yangoru-Saussia Open seat in the 2007 general election. Mr Dusava petitioned, alleging bribery. The National Court, sitting as the Court of Disputed Returns, upheld the petition on 23 April 2008, finding that Mr Waranaka had given K50 to a voter, Mr Paringu, to induce his vote.
The Organic Law prohibits any appeal from an election petition decision. Mr Waranaka therefore applied for review under section 155(2)(b).
What was argued
Mr Waranaka said the trial judge had accepted Mr Paringu’s evidence despite serious contradictions within it and with other witnesses, had not applied the correct standard of proof, and had reasoned to the conclusion that bribery was complete once money changed hands without proving the intent that the offence requires. The respondents said the judge had seen the witnesses and the review court should not disturb his findings.
What the Court decided
An appeal as of right, granted by statute, is a hearing de novo: the appellate court may go into the merits and substitute its own findings. A review is concerned with the decision-making process and its integrity, not the decision itself. The relevant questions include the jurisdiction and authority of the decision-maker, any error on the face of the record, and the reasonableness of the decision. The Court stressed that the distinction must be understood “to avoid appeals in the guise of review”.
Where a petition alleges bribery, the standard of proof is similar to the criminal standard: proof beyond reasonable doubt. The petitioner carries the burden throughout of establishing each and every element of the offence. Failure on any element should result in dismissal of the petition.
Applying its own criminal decision in Devlyn David v The State (2006) SC881, the Court held that a trial judge faced with inconsistencies must identify them, assess their significance and give reasons for treating them as significant or not. Logic, common sense and consistency are the tests of credibility, and serious unexplained inconsistency is a basis for rejecting evidence. The trial judge had dealt with the contradictions in Mr Paringu’s account “in a quick and dismissive way”.
There was no clear and direct evidence of the intent and purpose behind the alleged payment, and the other evidence did not support bribery as the only inference. The review was granted, the National Court’s decision was quashed, and Mr Waranaka’s election was confirmed with costs.
Did it make new law?
The Court drew the review-appeal distinction from earlier Supreme Court authority, including Moi Avei v Maino [2000] PNGLR 157 and Application by Ludwig Schultz (1988) SC572. On the standard of proof it followed the National Court line beginning with Bourne v Voeto [1977] PNGLR 298, in which Frost CJ, sitting on a petition alleging undue influence, held that an illegal practice under section 215 of the Organic Law, being a criminal offence, must be proved to a standard approaching the criminal one; the Supreme Court adopted and applied that principle to bribery. The case is best seen as the authoritative restatement of both rules, and it is cited for each.
Why it matters
Frame a review as a review. Grounds that simply say the judge reached the wrong result invite dismissal. Grounds must identify a defect in the process: a want of jurisdiction, an error on the record, or a decision no reasonable tribunal could reach.
Bribery petitions are hard to prove. A petitioner must prove the giving, the recipient’s status as an elector, and the corrupt intent, each beyond reasonable doubt.
What it does not decide
Waranaka does not lower the bar for interfering with findings of credibility. Later cases, citing it alongside Beng, hold that such findings may be set aside only where incontrovertible facts or uncontested testimony show them to be wrong, or the decision was glaringly improbable. Nor does it address the leave stage of an election petition review, which was later governed by Agiru v Kaiabe (2015) SC1412 and Pundari v Yakos (2023) SC2345.
Recent cases applying it
- Dau v The State [2026] PGSC 79; SC2923 — cited paragraphs 24 to 26 of Waranaka on the trial judge’s advantage in assessing oral evidence; appeal against a corruption conviction dismissed.
- Mota v The State [2026] PGSC 35; SC2880 — the same principle applied on a review of an armed robbery conviction, which was set aside on other grounds.
- Tolo v The State [2023] PGSC 20; SC2371 — Waranaka applied to the question whether inconsistencies in a child complainant’s evidence were significant.
- Electoral Commission v Kaku [2021] PGSC 61; SC2137 — cited in an election petition review.
Sources
- Waranaka v Dusava [2009] PGSC 11; SC980 (Kandakasi, Lay and Gabi JJ, 8 July 2009)
- Dusava v Waranaka [2008] PGNC 71; N3367 (the decision under review)
- Constitution — s 155(2)(b); Organic Law on National and Local-level Government Elections — ss 215, 220
- Bourne v Voeto [1977] PGNC 31; [1977] PNGLR 298
- Dau v The State [2026] PGSC 79; SC2923; Mota v The State [2026] PGSC 35; SC2880; Tolo v The State [2023] PGSC 20; SC2371; Electoral Commission v Kaku [2021] PGSC 61; SC2137
A case brief is a summary written by a person, not a substitute for the judgment. Read the judgment itself at the link given, check whether it has since been followed, distinguished or overruled, and get advice before relying on it. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.