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Moresby Northwest Parliamentary Election: Rea v Rarua Rarua [1977] PGLawRp 551; [1977] PNGLR 338 (10 October 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 338 - Re Moresby Northwest Parliamentary Election: Gavera Rea v Mahuru Rarua Rarua

[1977] PNGLR 338

N109

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE MORESBY NORTHWEST PARLIAMENTARY ELECTION

GAVERA REA

MAHURU RARUA RARUA

Waigani

Frost CJ

12-14 September 1977

10 October 1977

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Error or omission by officer - Omission by officers to supply sufficent envelopes for electors not on certified list and claiming to vote - Error by officers in not initialling ballot papers - Principles applicable - Onus of proof - Discretion of Court - Organic Law on National Elections Pts. VI, VII, Pt. XIII Div. 3, Pt. XIV Divs. 1, 2 and 4, Pt. XVIII Div. 1.

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Petition for declaration that losing candidate duly elected, or for declaration that election void - Error or omission by officers - Principles applicable - Onus of proof - Discretion of Court - Organic Law on National Elections ss. 212, 218[cccxliii]1, 219.

On the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections, by a losing candidate for a declaration that he was duly elected, or for a declaration that the election was void on the grounds that there had been diverse breaches of the provision of the Organic Law on National Elections, and in particular breaches of s. 145 and s. 136(1) thereof:

Held

N1>(1) Although the power of the Court under s. 212 of the Organic Law on National Elections to declare a petitioner duly elected or to declare an election void, “on such grounds as the Court in its discretion thinks just or sufficient” is a very wide charter of power, it must be exercised judicially, and the Court is under s. 217 of the Organic Law on National Elections to be guided “by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

Fell v. Vale (No. 2) [1974] VicRp 19; [1974] V.R. 134 at p. 135 referred to.

N1>(2) The effect of s. 218 of the Organic Law on National Elections is such that if the matter is left so that the irregularity (or irregularities) may have affected the result, the election may be declared void.

Cole v. Lacey [1965] HCA 11; (1965) 112 C.L.R. 45, and Kean v. Kerby [1920] HCA 35; (1920) 27 C.L.R. 449 adopted and applied.

N1>(3) A failure by a presiding officer to supply sufficient envelopes (as required by s. 145 of the Organic Law on National Elections) for 156 electors not on a certified list and claiming to vote under s. 141(1) thereof (albeit because the supply of envelopes had run out) amounted to an “error of or an omission by an officer” within s. 218(1) of the Organic Law on National Elections.

N1>(4) A failure by a presiding officer to initial the ballot papers (as required by s. 136(1) of the Organic Law on National Elections), in respect of 46 votes cast under s. 141(1) thereof amounted to an “error of or an omission by an officer” within s. 218(1) of the Organic Law on National Elections.

N1>(5) A failure by a presiding officer to initial the ballot papers as required by s. 136(1) of the Organic Law on National Elections, in respect of 18 ordinary votes amounted to an “error of or an omission by an officer” within s. 218(1) of the Organic Law on National Elections.

N1>(6) Excluding the 156 votes by electors not on a certified list and claiming to vote under s. 141(1) of the Organic Law on National Elections, if irregularities had not occurred the respondent’s majority would have been reduced to 11 votes; and including the 156 disputed votes the petitioner would have had a majority.

N1>(7) In ascertaining whether the irregularities by the officials may have affected the result of the elections a comparison should be made between the actual voting and what the voting would have been had the election been free from all official irregularities.

Scarcella v. Morgan [1962] VicRp 30; [1962] V.R. 201 followed.

N1>(8) In the circumstances the irregularities may have affected the results of the election.

N1>(9) The power under s. 212(1)(g) of the Organic Law on National Elections to declare a petitioner disputing an election duly elected can only be exercised if the petitioner can show that under the Organic Law on National Elections, he had sufficient valid votes actually to win.

N1>(10) The invalidity of the 156 votes by electors not on a certified list and claiming to vote under s. 141(1) of the Organic Law on National Elections follows as a mandatory consequence of non-compliance with that section, the Court has no power to declare them valid and accordingly the petitioner could not be declared duly elected.

Dunbier v. Mallam [1971] 2 N.S.W.L.R. 169 at p. 175 referred to.

N1>(11) The power under s. 212(1)(h) to declare an election void, although discretionary should only be exercised if the effect of the official irregularities is shown to have deprived a sufficient number of electors of an effective vote.

Dunbier v. Mallam [1971] 2 N.S.W.L.R. 169 at p. 175 followed.

N1>(12) The irregularities as proved had deprived a sufficient number of electors of an effective vote and the election should be declared void pursuant to s. 212(1)(h) of the Organic Law on National Elections.

Petition

This was a petition to the National Court, sitting as a Court of disputed returns, pursuant to s. 206 of the Organic Law on National Elections and contesting the validity of the election of a Member of Parliament on the ground of irregularities in electoral procedures.

Counsel

W. J. Andrew, for the petitioner.

B. M. Ryan, for the respondent.

K. N. Gregory, for the Electoral Commission.

Cur. adv. vult.

10 October 1977

FROST CJ: At the general elections in June and July 1977, Mr. Gavera Rea, who was one of ten candidates for the open electorate of Moresby Northwest, received 3,133 votes. This was 25 less than the total votes for Mr. Mahuru Rarua Rarua, who was the candidate declared elected. Mr. Rea now by petition addressed to this Court disputes the validity of the election.

The main ground of the petition is that by reason of various errors and omissions on the part of the electoral officers, some 142 votes cast in favour of Mr. Rea were rendered informal and rejected by the Returning Officer, and that if these votes were counted as valid votes Mr. Rea would win the largest number of votes. Mr. Rea accordingly seeks that this Court should exercise its powers under s. 212(1) of the Organic Law on National Elections and declare that he was duly elected, or, in the alternative, that the election was absolutely void. The Court’s powers may be exercised on such grounds as the Court in its discretion thinks just and sufficient; Organic Law s. 212(2). As was said by an Australian judge of a provision in the same terms: “This is a very wide charter of power, but it must of course be exercised judicially.” Fell v. Vale (No. 2)[cccxliv]², per Gowans J. The Law does however give guidance in a provision, found also in other fields of legislation, to the effect that the Court is to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not, s. 217.

Having regard to the particular ground of this petition it is to the provisions of s. 218 to which the Court must turn. That section provides that:

N2>“(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

N2>(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

The section thus plainly envisages that an election may be avoided on account of an error or omission by an officer.

ONUS OF PROOF

It is established that under the Australian Act in the same terms, it is not necessary for the petitioner to prove that the alleged irregularities actually affected the result of the election, Commonwealth Electoral Act 1918-1973, s. 194. Cole v. Lacey[cccxlv]³. The result of the election means the return of the particular candidate, and not the number of his majority — Kean v. Kerby[cccxlvi]⁴. Upon such a provision all that has to be shown for the petitioner to succeed is that the irregularities may have affected the result, Kean v. Kerby[cccxlvii]⁵; Cole v. Lacey[cccxlviii]⁶. This involves proof of the existence of such a possibility, but it must be a real possibility and not remote.

Mr. Andrew sought to take the petitioner’s case further and submitted that the onus was on the respondent “to negative the presence of reasonable grounds for believing in the existence of” such a possibility, as it was stated in Scarcella v. Morgan[cccxlix]⁷. That was a case of a Local Government election petition, in which Smith J. applied the common law of Parliament relating to elections in exercising the statutory discretion of the Court. The judgment contains a full statement of the common law rule and reference to the relevant outside decisions (op. cit. at pp. 202-203). Of course, as Smith J. pointed out, the common law rules cover many situations differing widely from the present type of case (op. cit. at p. 202). The rule was applied by the pre-Independence Court of Disputed Returns in In re Charlie Maino Auki[cccl]⁸. That was a case of loss of ballot papers which, however, did not arise out of any error or omission of an officer. But in a case based upon alleged irregularities similar to those raised in the present case, the common law rule as stated by Smith J. was applied as an additional ground by Gowans J. in Fell v. Vale (No. 2)[cccli]⁹, at p. 153.

In my opinion the rule has now to be regarded with some caution in view of the recent disapproval by the Court of Appeal of Lord Coleridge’s judgment in Woodward v. Sarsons[ccclii]¹⁰, a judgment upon which the rule is largely based. I refer to Morgan v. Simpson[cccliii]¹¹ in which Lord Denning M.R. said that Woodward v. Sarsons[cccliv]¹² should be regarded as authority only for what it decided, and not for what is said in it — (supra) at p. 163. It may be that to cast the onus of proof upon the respondent follows as a corollary of the proper construction of s. 218(1). However, for the purposes of the present case, adopting as I do Cole v. Lacey[ccclv]¹³ and Kean v. Kerby[ccclvi]¹⁴, it is sufficient for me to take as the effect of the section, in the words of Isaacs J. in the latter case, “... if the matter is left so that the mistake may have affected the result, the election may be declared invalid.”

I turn now to consider the three types of error or omission alleged on the part of the electoral officers which it is said caused the votes to be rejected as informal.

ORGANIC LAW PART XIII DIVISION 3

The first type relates to 156 votes polled on Tuesday, 21st June, 1977, at the polling booth at Murray Barracks under the Organic Law s. 141(1). It is necessary first to refer briefly to the scheme of the legislation so far as it is relevant to this case. There is the usual provision for enrolment All persons who have a right to vote under s. 50 of the Constitution (that is, generally every citizen who is of full capacity and has reached voting age), and who comply with Pt. VII, which prescribes the procedure for enrolment, are entitled to enrolment, s. 51(1). All persons whose names are on the Roll for an electorate are, subject to the Law, entitled to vote at elections for the electorate, s. 51(2). Under Pt. VII a person who has resided in the area of an electorate for a period of not less than six months immediately preceding the date of his claim for enrolment is entitled to have his name placed on the Roll for the electorate, s. 54(1). There is provision for compulsory enrolment by making a claim, s. 56, but its enforcement would appear to depend on a claim form being prescribed.

The effect of these provisions is to establish an electoral Roll (or register as it is called in the United Kingdom) which is regarded in democratic countries as “the foundation of electoral administration; on this everything rests. The invention of the register was one of these pieces of ingenuity which make advances in the art of government possible ...” Free Elections, W. J. M. Mackenzie. (Brief and interesting descriptions of the mode of voting over the centuries until the register was first introduced in the United Kingdom in the Reform Act of 1832 will be found in Kean v. Kerby[ccclvii]¹⁵; Morgan v. Simpson[ccclviii]¹⁶, per Lord Denning M.R.)

In the United Kingdom only those persons whose names are on the Register may vote in elections. But exceptions were made in Australia in the Commonwealth Electoral Act 1918-1973, which has been carried over and adapted, as it will appear, in the Organic Law.

Exceptions are to be found in Pt. XIII Div. 3 — Special provisions in certain cases, s. 141(1), and this is the provision under which the 156 votes in question were intended to be cast. Provision is made for three categories of claimants to vote, two only of which are relevant to this case. For convenience and clarity I shall break down the section in stating the requirements of each category. The first consists of those persons whose names are not on the certified list of voters for the polling place. The section provides:

N2>“(1) Notwithstanding anything in this Law, where a person who is entitled to be enrolled on the Roll for an electorate claims to vote at an election at a polling place prescribed for that electorate and his name has been incorrectly omitted from ... the certified list of voters for that polling place, ... he may, subject to this Law, be permitted to vote if:

(a) ...

(i) his non-enrolment is due to an error or omission in the compilation of the Roll; and

(ii) he is not enrolled for another electorate,

and in addition:

(iii) he did not know, and had no reasonable opportunity of knowing, that he was not enrolled, or had no reasonable opportunity of making a claim for enrolment or transfer of enrolment, as the case requires; or

(iv) he made a claim for enrolment or transfer of enrolment, as the case requires, in respect of the electorate, and the claim was received by the Returning Officer before 4 p.m. on the day of the issue of the writ for the election and he did not, after making a claim for enrolment or transfer of enrolment and before the issue of the writ, become qualified for transfer of enrolment to another electorate;

...

and makes a declaration in the prescribed form before the presiding officer at the polling place.”

The second relevant category of persons for whom special provision is made in s. 141(1) includes the person who is enrolled on the Roll for an electorate and claims to vote at an election at a polling place prescribed for that electorate and his name cannot be found by the presiding officer on the certified list of voters. In such a case, he may, subject to the Organic Law, be permitted to vote if he claims that his name appears or should appear on the Roll, and makes the declaration as prescribed (s. 141(1)(c)). This sub-paragraph is taken from the Australian section and presents no problems of construction. There are however difficulties in relation to s. 141(1)(a) which I shall refer to later.

Division 3 then goes on to provide a special procedure where a voter claims to vote under s. 141. The ballot paper is to be marked and folded and returned so folded to the presiding officer (s. 141(2)). The presiding officer is then, in the presence of the voter, to enclose it in an envelope bearing the voter’s declaration and addressed to the Returning Officer, and is to deposit it in the ballot box (s. 145(1)). The Organic Law envisages that at the polling booth stage the presiding officer has a discretion and may investigate the claim to vote, for where the claim is refused he is to make a note in writing of the claim and reasons for refusal (s. 145(3)). If, however, the claimant complies with the section, he is entitled to vote (s. 136(1)(c)).

There are special provisions relating to the scrutiny of votes under Div. XIII.3. The Returning Officer is to produce unopened all envelopes containing ballot papers (s. 161). At this stage there is a mandatory duty upon him, before an envelope is opened, to examine the declaration of the voter, and, if it is in order and, in the case of a s. 141 vote he is satisfied, after making such enquiry as is necessary, that the voter is a person to whom s. 141(1) applies, to deal with the ballot paper as prescribed and to make any necessary correction to the Roll (s. 161). At the preliminary scrutiny the envelopes bearing the declarations of persons who the Returning Officer is satisfied are entitled to vote are separated from those rejected and, presumably, for the purpose of the correction of the Roll, in respect of envelopes of the s. 141 voters who he is satisfied are entitled to vote, he is to place the name of each person on a certified copy of the Roll used by him for the purposes of the scrutiny (s. 162(1)(a)). The ballot papers are examined again at the final scrutiny, and are dealt with in the same manner as ordinary votes (s. 163).

It is important to note that a Div. 3 voter’s ballot paper is informal, amongst other reasons, if it is not authenticated by the initials of the presiding officer or by an official mark as prescribed (s. 154(1)(a)), or if it is not contained in an envelope bearing the declaration of the elector (s. 164).

ORGANIC LAW, S. 141(1)(A)

From the able arguments of counsel, there emerge some observations upon s. 141(1)(a). It is not necessary for me to do more as this part of the case can be determined upon s. 141(1)(c). Indeed all counsel joined in submitting that the construction of s. 141(1)(a) as a whole did not arise for decision.

The scope of s. 141(1)(a) is best understood by comparing it with s. 129 of the Australian Act upon which it is plainly based. Under the latter section it is a necessary requirement for a person whose name is not on the Roll to be permitted to vote for him to have sent a completed claim for enrolment before the issue of the writ for the election, and thereafter not to have become qualified for transfer to another electorate. A fundamental difference under the Organic Law is that that requirement is in express terms alternative only. (According to Mr. Jansen, the Returning Officer, whose experience goes back before the 1972 election, the practice of the Electoral Commission accords with this view.)

Mr. Ryan did argue that the opening words followed in our section confining its operation to persons “entitled to be enrolled on the Roll”, which are entirely appropriate in the Australian section, must mean persons not only qualified by age and residence but also those who had made a claim for enrolment (ss. 51, 53 and 54) and he then boldly submitted that therefore sub-paragraph (iii), which envisages a claimant who is not enrolled, must be ignored entirely as contradictory. But such a construction is difficult upon the express words of the section. Further, sub-paragraph (iii) can be reconciled with the opening words of the section by reading the section as a whole, so that in the context the words “entitlement to enrolment” are capable of being taken as referring only to age and residential qualifications. See also Constitution Sch. 1.5.(1).

So far as sub-paragraph (iii) is concerned, it is apparent that when the section in its present form was first enacted in the Electoral Act 1963, it was decided that the restricted operation of the Australian section was not suitable to the circumstances of Papua New Guinea, where there remains a substantial number of citizens who are illiterate and who live in remote villages, many of them without access to wireless. It is these considerations to which, Mr. Gregory strongly submitted, the Court should have regard, and to which in my opinion the sub-paragraph is directed. (An exception in similar terms is also to be found in the provision for compulsory enrolment, s. 56(3)).

Another change from the Australian section is the omission of the words in the substantive part confining the cause of the omission of the name from the Roll to “an error of an officer or a mistake of fact”. Instead, our section refers to the name being “incorrectly omitted”. Having regard to those words and the tenor of the section it is not easy to extend its operation to an omission or failure to take action on the part of the claimant to enrol. Further, the requirements of s. 141(1)(a)(i) would appear to relate to an error or omission on the part of an electoral officer or persons appointed to assist in the compilation of the Roll. See s. 52. (Mr. Gregory helpfully suggested as instances the omission of an enrolment party to visit a particular village, or to trace all qualified villagers, or to return to collect completed claims for enrolment). But, as Mr. Gregory submitted, the provisions made in the Constitution for every citizen who has full capacity and has reached voting age, subject to certain exceptions, to have the right and to be given a reasonable opportunity to vote for elections, may be relevant to this issue, and may indicate that, in the special circumstances of the country and its people, a wider operation should be given to s. 141(1)(a). On this point, in particular, I express no opinion.

The requirement in s. 141(1)(a)(ii) precluding a claimant from being enrolled for another electorate seems superfluous. Where a person has not made a claim for enrolment, presumably he would have to show six months’ residence within the electorate at the date he claims to vote under s. 141(1), and this would be sufficient to disentitle him to vote in any other electorate for which he was enrolled (s. 51(1), s. 131). As Mr. Gregory pointed out, the provision is related to the different provisions of the Electoral Act 1963, s. 38, under which an elector was entitled to enrol in one of a number of electorates. When the Organic Law was passed the Constituent Assembly removed this wide entitlement but sub-paragraph (ii) was left unaltered.

THE IRREGULARITIES ALLEGED BY THE PETITIONER

The scheme of the Organic Law relating to s. 141 voters which I have set out covers two types of votes, cast for both the petitioner and the respondent, and rendered informal, the petitioner alleges, by the errors and omissions of the electoral officers. They are 156 votes cast under s. 141(1) for which the presiding officer was not able to supply envelopes, and 46 votes also cast under s. 141(1) which were contained in envelopes bearing the declaration of the elector and attested by the presiding officer, but in respect of which the ballot papers do not bear the initials of the presiding officer. The third type of vote relates to 18 ordinary votes which it is alleged were rendered informal because in breach of s. 136(1) the ballot papers were handed to the voters without being initialled by the presiding officer.

THE FACTS OF THE CASE

The position that the Electoral Commission found itself in at the end of the polling period was described by Mr. Jansen, the Returning Officer, and the circumstances of the poll were described also by him and Mr. Ville Toraso, the presiding officer for a booth on each of the three polling days including Murray Barracks on the final day, Tuesday, 21st June.

The Roll was quite inadequate as it had not been brought up to date since the 1972 election. Many names should have been removed from the Roll because of death or departure from the electorate, and many should have been added. In practice changes were not reported by the people and the Commission was unable to establish any independent system to keep the Roll up to date.

An intensive publicity campaign was conducted prior to the issue of the writs in an attempt to get names for the Supplementary Roll, but this unfortunately received little response. During the polling the Commission’s main concern was to obtain as representative a poll as possible. In fact, although there were 19,000 voters on the Roll, the number of votes polled was 10,646, and of these as many as 4,500 were votes polled by s. 141 voters. In the city of Port Moresby the presiding officer had scope for further enquiry — but there is no evidence that it was pursued — as to whether a claimant had complied with the provisions of s. 141(1)(a). In view of the publicity campaign such a claimant might find it difficult to assert that he did not know and had no reasonable opportunity of knowing that he was not enrolled, and, because of the easy access to electoral offices within Port Moresby, that he had no reasonable opportunity to make a claim, except possibly in cases of physical incapacity. But at the stage of the scrutiny, when the s. 141 voters had all dispersed, it is hard to say what enquiries were open to the Returning Officer, faced as he was with the task of making decisions upon envelopes by the thousand, before satisfying himself that the voter in each case had brought himself within s. 141. This consideration apparently explains the Commission’s policy of accepting without further enquiry a duly completed declaration as entitling the claimant to vote. The real cause of the Returning Officer’s predicament was of course that this procedure taken from the Australian Act was intended to cope with enquiries which were mainly confined to whether, according to electoral records, the voter had sent in a duly completed claim before the due date, a procedure entirely unsuitable for the enlarged scope of s. 141(1).

So far as the polling was concerned, there were 11 polling booths open on the Saturday, 18th June, but as polling was quiet on the Monday five booths only were opened. Polling was somewhat heavier on this day but the electoral officers were able to cope with the crowds because of increased staff. With hindsight, an error of judgment was made on the Tuesday when it was decided that three booths only should be opened. These were at Gerehu, Waigani and Murray Barracks. There had been security problems on both the Saturday and the Monday but this did not apply of course to Murray Barracks. On Tuesday when the booths opened at 8 o’clock there were crowds of voters waiting and long queues of people were formed, including at Murray Barracks. The procedure which was tried on the Monday, of making polling clerks acting presiding officers, was made general on the Tuesday. Instead of the voter going first to the polling clerk to check whether his name was on the Roll and then to the presiding officer to claim a vote under s. 141 if his name was not found, it was necessary for the claimant voter to go to the acting presiding officer only. What presumably had happened was that the candidates, concerned at the low attendance at the polls on the Saturday and Monday, had hunted up the voters to support them on the final day.

When the crowds of voters weary of waiting in the queues, became impatient, unruly scenes developed. At a booth within Moresby Northeast a table was pushed over and the officers had to retreat to an office, and according to Mr. Jansen the situation in Moresby Northwest was not much different, with the exception of Murray Barracks.

There is no doubt that at about 5 o’clock in the afternoon at the Murray Barracks booth the supply of envelopes, which it was necessary for the s. 141 voters to be supplied with, ran out. The Returning Officer is of course required to make all necessary arrangements for the poll (s. 118). An officer was despatched to the Electoral Commission, but at that stage Mr. Jansen’s main concern was the problem of security and maintaining law and order at the various booths, both in Moresby Northwest and Moresby Northeast, a situation which, he felt, required his personal control. So he was unable to make arrangements for the despatch of a further supply which was available at the store some distance away. In the meantime at Murray Barracks polling booth the claimant voters whom Mr. Toraso had told to wait had become impatient. This led him to take the step, which was of course in breach of the requirements of the Organic Law, because no envelopes were available to bear the elector’s declaration, of handing to each of the claimant voters a ballot paper which he distinguished from the ballot paper of an ordinary voter by the words “Section 141”. These votes were then completed by the claimants and placed in the ballot box.

As it happened, the ballot boxes at Murray Barracks on the Tuesday were of a different type from those used on the Saturday. (The polling booth at Murray Barracks was not opened on the Monday). These boxes were numbered “3” and “1”. Upon later examination by the Returning Officer it was found that there were in Box No. 3, 63 votes in favour of Mr. Rea and 20 votes in favour of Mr. Rarua Rarua. In Box No. 1, there were 39 such votes in favour of Mr. Rea and 34 in favour of Mr. Rarua Rarua. The totals were therefore 102 in favour of Mr. Rea against 54 in favour of Mr. Rarua Rarua. Each was marked “Section 141”. The fact that these votes were those of the claimant voters who were unable to obtain envelopes is supported by Mr. Toraso’s evidence that he had made a list of these votes (which, however, had been intermingled later with another list and was not available), and that there were about 150 claimant voters to whom he was unable to supply envelopes.

ARE THE IRREGULARITIES PROVED?

The evidence is all one way and it was conceded by Mr. Ryan that there was thus an error or omission within the meaning of s. 218 on the part of the officers, and that this involved the 156 votes of which Mr. Rea had the advantage by 48 votes.

The second type of votes relied upon by Mr. Rea, also polled under s. 141(1), consists of 46 votes each contained in an envelope bearing the declaration of the elector and attested by the presiding officer, but the corresponding ballot papers did not bear the initials of the presiding officer. Of these votes, 27 were in favour of Mr. Rea and 19 in favour of Mr. Rarua Rarua, giving Mr. Rea the advantage by 8 votes. The irregularity affecting these votes which caused them to be rejected as informal was also plainly due to an error on the part of an officer and as such could not be disputed by Mr. Ryan.

The third type of vote consists of 18 votes, 13 in favour of Mr. Rea and 5 in favour of Mr. Rarua Rarua, giving Mr. Rea the advantage by a further 8 votes. Being ordinary votes, these votes were not required by law to be placed in an envelope, but were rejected as informal because under s. 136(1) they were not duly initialled by the presiding officer.

In normal circumstances there would be no question but that in the case of these votes the informality was due to an error or omission on the part of an officer. It was suggested by Mr. Gregory, but with no great vigour, that in view of the confusion at the booths (other than Murray Barracks), there was a real possibility of a voter, impatient after the long delay, obtaining the ballot paper improperly. But the conditions would have meant that the officers were hard pressed, and in their hurry to attend to the voter may well have omitted to initial the paper. On the whole, in my opinion, the probabilities favour the latter cause, as indeed Mr. Gregory in the end conceded, and I am satisfied that the irregularity of these votes was caused by an error or omission on the part of an officer.

At this stage I should refer to an examination made by Mr. Jansen at the request of Mr. Ryan of all the informal votes, excluding the above three categories, cast in favour of both Mr. Rea and Mr. Rarua Rarua. (As to the votes in those three categories, they had been checked by Mr. Rea with Mr. Jansen and parcelled up together. There was no doubt of their number.) The result of the examination was that, of the votes of which it could be said that they were rendered informal by reason of an error or omission of an officer, Mr. Rarua Rarua had the advantage over Mr. Rea of 2 votes. These 2 votes are to be allowed as compensatory errors in favour of the respondent in considering the votes relied on by the petitioner. Dunbier v. Mallam[ccclix]¹⁷.

HAS IT BEEN SHOWN THAT THE IRREGULARITIES BY OFFICIALS MAY HAVE AFFECTED THE RESULT OF THE ELECTION?

I have now to decide whether upon the official errors and omissions which I have found did occur, Mr. Rea is entitled to succeed on the petition. I shall leave for the moment the 156 votes under s. 141(1) not enclosed in envelopes.

I have found that Mr. Rea was deprived of an advantage of 8 votes under s. 141(1) because the ballot papers were not duly initialled by the presiding officer, and also of an advantage of a further 8 ordinary votes for the same reason. As against those 16 votes, I allow the 2 compensatory errors on balance in favour of Mr. Rarua Rarua, so that if the irregularities had not occurred Mr. Rarua Rarua’s majority would have been reduced to 11 votes.

The question is whether, because of the irregularity affecting the 156 votes not enclosed in envelopes, in the light of that reduced majority it has been shown that the irregularity in fact affected or may have affected the election. In relation to this category of votes Mr. Andrew submitted that it was very likely that a sufficient number of claimants under s. 141(1) was entitled to vote under sub-paragraph (c), that is, there were, sufficient to give Mr. Rea the majority, persons whose names were on the Roll for the electorate but could not be found by the presiding officer and who claimed that the name appeared or should have appeared on the Roll.

There is ample evidence to support this submission in the testimony of Mr. Jansen and Mr. Toraso. Mr. Jansen said that it was very likely that some of the claimants had their names on the Roll and polling officials missed them. The reasons are that even in the Port Moresby area there are a number of letters appearing in names that are in Motu interchangeable and the way the name was written could vary. In addition, it is notorious that people in this country do change their names. He had also found that declaration voters, when asked why their names did not appear on the Roll, in most cases said they did not know about it; but others said they had enrolled and their names still could not be found. Similar evidence was given by Mr. Toraso that, when asked why they had not registered at the booths where he officiated, most answers were, “my name should be there because I voted last time”. The fact that in each case the claimant was, after enquiry, permitted to vote and was given a ballot paper, ineffective as the procedure was, is also some evidence of his entitlement to vote. Indeed, Mr. Ryan conceded that, not only in relation to these 156 informal votes, but also by reason of all the errors taken together, there may have been a sufficient number to affect the result of the election, and this is all that the petitioner has to prove.

It has, however, exercised my mind whether the petitioner is required to provide proof of entitlement in the case of a sufficient number of particular persons. Such proof was required by Gowans J. in Fell v. Vale (No. 2)[ccclx]¹⁸, but that was a case of persons not being permitted to vote, evidence of which was admissible only upon proof of compliance with the requirements of legislation in the same form as s. 141. The corresponding section is Organic Law s. 219(b). The present case certainly does not fall within that class. If given any wider operation, that test would go beyond the requirement of s. 218(1) of proof only that the result of the election may have been affected.

On the whole I have decided that the view submitted or accepted by all counsel is correct. It is supported by the decision of Smith J. in Scarcella v. Morgan[ccclxi]¹⁹. In that case there was evidence that the supply of ballot papers ran out at a particular polling booth about 20 minutes before the close of voting. Persons then came to the booth who were given directions to another booth. In addition the occupants of some cars were told when they pulled up outside the booth that the ballot papers had run out and were directed to another booth. Having regard to the numbers of these persons, and the size of the majority obtained by the successful candidate, the Court was satisfied that the maximum number of votes which could have been lost fell far short of the number necessary to affect the result of the election. But it is significant that there was no evidence, nor was it a matter raised by the judge, that the persons who called at the booth and could not be accommodated were persons whose names were on the Roll and who were entitled to vote.

The test applied in that case was that the comparison should be between the actual voting and what the voting could have been had the election been free from all official irregularities. Scarcella v. Morgan[ccclxii]²⁰. The Court clearly considered that it was sufficient on the evidence to find that those who called at the booth may have been entitled to vote, and the only question was whether the numbers involved may have been sufficient to affect the result.

The conclusion that I have thus reached is that the irregularities may have affected the result of the elections, and the ground has been established upon which the election may be declared void.

SHOULD AN ORDER BE MADE IN FAVOUR OF THE PETITIONER?

Mr. Andrew submitted that the Court should exercise its power under s. 212(1)(g) to declare Mr. Rea duly elected. It is true that, having regard to the practice adopted by the Returning Officer, if envelopes had been available for the 156 voters and their declarations had been duly completed, all the votes would have been admitted to the final scrutiny and Mr. Rea would have won the majority. But the petitioner has to go further and show that under the Organic Law, he had enough valid votes actually to win.

Mr. Andrew based his argument on the principle of construction which distinguishes between mandatory and directory provisions in statutes, and submitted that the votes were not invalidated even if the officials had neglected to perform their duties properly, and that sufficient compliance with the Organic Law was shown by the voters merely completing the ballot papers. The principle is set out in Craies on Statute Law, 7th ed., pp. 249-250. However, the argument fails on the threshold so far as the 156 votes are concerned because of the mandatory requirement under s. 141(1) of a declaration by the voter which could not be completed in the absence of an envelope. As Mr. Gregory submitted, the presiding officer was also under a mandatory duty to enclose the ballot paper in an envelope bearing the declaration of the voter (Section 145(1)); see also s. 164. Another reason fatal to the argument is to be found in the provisions of the Organic Law, the effect of which is that all informal ballot papers whether in the case of ordinary votes or votes under s. 141(1) are to be rejected (s. 155(2)(b) and 162(1)(b)). As Hardie J. said in Dunbier v. Mallam[ccclxiii]²¹ the principle is of no relevance or assistance where, as in the Organic Law, the invalidity of the votes follows as a consequence of not complying with the statutory requirements. Mr. Gregory aptly put it in this way, the votes are informal, and the Court has no power to make them formal. Accordingly the submission fails.

The petitioner’s alternative claim was for a declaration that the election be avoided.

Mr. Ryan made a preliminary point of law based on a submission put by counsel for the respondent in Dunbier v. Mallam[ccclxiv]²². The submission was that the invalidity of the votes of all three types means that they were properly rejected, and therefore they should no longer be taken into account for the purpose of disturbing or displacing either the Returning Officer’s count or the outcome of the election. The provisions of the Organic Law under which all informal ballot papers whether in the case of ordinary votes or votes under s. 141(1) are to be rejected, deal finally and conclusively with those votes and the electors who recorded them. The submission continues that if it were intended that the circumstances under which these votes became invalid could be investigated and relied upon as a type of official error to support a claim for a new election, then the Constituent Assembly would have made express provision to that effect. However, I see no reason to differ from the conclusion of Hardie J. that this argument should be rejected. His Honour said, “the court’s wide general power of declaring an election void can in an appropriate case be exercised by reason of the disenfranchisement of a sufficient number of voters, even though the votes recorded by them were properly rejected by the returning officer.” (op. cit. at p. 175).

It is true that this Court has a discretion in the exercise of its power to avoid an election. Mr. Ryan went on to submit that even although the ground of the petition was proved, I should not in my discretion exercise that power. He referred to the considerable expense incurred by the candidates, and the social consequences if another election is to be held. He further submitted that in view of the difficulties of conducting an election in this country, the principles applied by courts elsewhere under the sophisticated electoral system that has been adopted here are not suitable to Papua New Guinea. However, in my opinion, if the effect of official irregularities is shown to have deprived a sufficient number of electors of an effective vote, that is the over-riding consideration in a parliamentary election. Accordingly there will be a declaration that the general election for Moresby Northwest was absolutely void, and further order that the deposit be paid to the petitioner. The Registrar will forward a copy of the order to the Clerk of the Parliament. The effect of this order is that a new election shall be held. Organic Law, s. 226(c).

Order accordingly.

Solicitor for the Electoral Commissioner: C. Maino-Aoae, Acting State Solicitor.

[cccxliii]Section 218 of the Organic Law on National Elections provides:

N2>(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

[cccxliv][1974] VicRp 19; [1974] V.R. 134 at p. 135.

[cccxlv](1965) 112 C.L.R. 45.

[cccxlvi][1920] HCA 35; (1920) 27 C.L.R. 449 at p. 458.

[cccxlvii][1920] HCA 35; (1920) 27 C.L.R. 449 at p. 458.

[cccxlviii](1965) 112 C.L.R. 45.

[cccxlix][1962] VicRp 30; [1962] V.R. 201 at p. 203.

[cccl][1973] P.N.G.L.R. 243 at pp. 249-252.

[cccli][1974] V.R. 134.

[ccclii](1875) L.R. 10 C.P. 733.

[cccliii][1975] 1 Q.B. 151.

[cccliv](1875) L.R. 10 C.P. 733.

[ccclv](1965) 112 C.L.R. 45.