Manase v Polye [2009] PGNC 101; N3718 (14 August 2009)

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ANDREW TRAWEN, Chief Commissioner, Electoral Commission of Papua New Guinea,
Second Respondent

NATIONAL ELECTIONS - 2007 - Open Seat for Kandep - whether particular polling places affected by illegal practices or errors & omissions - meaning of winning margin in Limited Preferential Voting.

The First Respondent was declared the winning candidate in the election for the Open Seat for Kandep in the 2007 National Elections. He received 21,820 votes out of the total formal votes of 31, 546. The Petitioner received 3149 votes the next highest number received by a candidate. The Petitioner alleged widespread and systematic stealing of ballot boxes and other illegal practices.

1. The winning candidate must receive 50%+1 of the total formal votes cast. The amount of votes received above 50% is the winning margin;

2. If the votes affected by illegal practices and lost votes exceeds the winning margin, it has been proven that the result of the election was likely to be affected;

3. The winning margin was 6047. The number of votes affected by illegal practices & lost votes totalled 7562;

4. The First Respondent was not duly elected and the election is absolutely void.

Tawaman v Zurenuc, EP 1 of 2002, 18th December, 2002, Injia J
Embel v Kopaol (2003) SC727
Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner (1998) PNGLR 99
Dick Mune v Anderson Agiru & ors (1998) SC590
Thompson v Pokasui [1988] PNGLR 210
Maino v Moi Avei (2000) SC 633, [2000] PGSC 6
Sidi Adevu v MVIT [1994] PNGLR 57
Kamma v Itanu (No. 2) [2008] N3261
Cosmos Kitau Kitawai v The State (2007) SC927
Togel v Ogio [1994] PNGLR 396
Baki Relpa v Yuntivi Bao [1999] PNGLR 232
Ano Naime Maraga & 2 Ors v The State (2009)
Baki Reipa v Electoral Commission & Yuntivi Bao (1999) SC606
Ephraim Apelis v Sir Julius Chan (1998) SC573
Paias Wingti v Kala Rawali and Tom Olga (2008) N3286

P. Mawa, for the Petitioner
P. Dowa, for the First Respondent
R. William, for the Second Respondent

1. The 2007 National Elections were held for the Kandep Open seat on the 3rd and 4th of July 2007. It was the first National Election held under the Limited Preferential Voting system (LPV). The First Respondent was declared duly elected on the first preferences on 16 July 2007. His was the only seat to be declared elected on the first preferences in the National Election. He polled 21,820 votes from a total of 31,546 formal votes cast. The Petitioner polled 3149. The Petitioner receives the next highest number of votes after the First Respondent.

2. In the LPV system of voting the voter indicates his three choices in order of preference. The winning candidate is the candidate who receives 50% of the validity cast votes +1: Organic Law on National and Local Level Government Elections(the organic law) section 168 (1)(b) and 168 (4). Where no candidate receives 50% plus one on the count of the first preferences, the 2nd preferences of the voters for the candidate who has received the fewest votes are distributed to each of the other candidates and that process continues until a candidate has 50%+1. As I mentioned, in this case neither the 2nd or 3rd preference votes were counted because the First Respondent received 50% plus one on the count of the first preference votes. 50% of 31,546 formal votes cast is 15,773+1 equals 15,774. So the First Respondent, who received 21,820 votes, received 6047 votes more than he required to win.

3. The burden of proof, the person who must prove, is the Petitioner. The standard of proof is high, the court must be completely satisfied almost to the criminal law standard of beyond reasonable doubt: Tawaman v Zurenuc; EP 1 of 2002 18th December 2002 Injia J (as he then was). The Supreme Court has said "... because undue influence is a criminal offence, for the ground to succeed the petitioner must prove every element of the offence of undue influence beyond all reasonable doubt for the petition to succeed" Embel v Kopaol (2003) SC 727 at 19. And I take that to be the principal applicable to all allegations of illegal practice, whatever they may be because they are all criminal offences.

4. The trial commenced in April 2008, 101 witnesses were called and their affidavits tendered. 136 electoral documents were tendered. The hearing of the evidence was complete at the end of March 2009. The parties submitted extensive written submissions (totalling 330 pages) and a full day of oral submissions were heard in June 2009. I thank counsel for the considerable efforts that they have put into the submissions, which has been of assistance in identifying discrepancies in the evidence and deciding whether those discrepancies are significant or not.

5. Section 208 (a) of the Organic Law on National and Local Government Elections ("the organic law") requires that all of the material and relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated must be set out in the petition. There is no requirement to plead the evidence: Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner (1998) PNGLR 99 Kapi DCJ, Los and Hinchliffe JJ per Kapi DCJ. There is no requirement to plead the law: Dick Mune v Anderson Agiru & Ors (1998) SC 590 Amet CJ, Woods and Injia JJ per Woods and Injia JJ. If further particulars are required to properly understand the petitioner's ground, the petition has not complied with section 208 (a) to plead the facts on which he relies: Thompson v Pokasui [1988] PNGLR 210 per Bredmeyer J with whom Cory and Hinchcliffe JJ agreed. The results obtained by the winning candidate and the petitioner, and the calculation of how the grounds pleaded affect the results, should be pleaded: Robert Kopaol v Philip Embel (2003) SC 727 Sawong, Kirriwom and Batari JJ. The Petition cannot be amended after the 40 days declaration of the result allowed for filing of a petition: Robert Kopoal v Philip Embel (2003) SC727.

6. The results of an election can be set aside if it is alleged in the petition and the evidence proves that (1) there were illegal practices which might have affected the result of the election, and, if the successful candidate is not guilty of any illegal practice, it is still just and equitable that the result of the election be set aside: Section 215 of the Organic Law. (2) Or where there are errors or omissions on the part of an officer which did affect the result of the election: Section 218 (1) of the Organic Law; Dick Mune v Anderson Agiru & ors (1998) SC 590. If the integrity of the results of the whole election is in question, that is pleaded and proven by evidence, such that a judge can reasonably conclude that the results of the election as a whole was in fact affected the question should be determined by the substantial merits and good conscience of each case without regard to legal forms or technicalities: Section 217 of the organic law; Maino v Moi Avei (2000) SC 633, [2000] PGSC 6.

7. When the organic law talks about an illegal practice, it means something against the law for which the law provides a penalty, either a fine or a jail term, a criminal offence; it does not mean an omission to comply or an error in complying with a statutory administrative direction: Dick Mune v Anderson Agiru & ors (1998) SC 590;

8. The Petitioner presented a Petition pleading 37 grounds as the basis on which the results of the election should be set aside. At the commencement of the trial objection was heard to a number of grounds in the petition on the basis that they did not comply with Section 208 (a) of the Organic Law. Grounds were struck out on the basis that what was being alleged could not be understood and on the basis that what was alleged did not contain sufficient facts to amount to an allegation of an illegal practice or an error or omission by an officer. Some parts of grounds were struck out because they were incomprehensible. It remained for argument on the trial as to whether the balance of the pleaded facts were sufficient to make out a ground.

9. Once the preliminary applications were dealt with there were 31 grounds of the petition to go to trial. Most of these fell into the broad grounds of:

(i) hijacking (stealing) ballot boxes and ballot papers and filling in the ballot papers and putting them in the box, generally known as stuffing the ballot box;

(ii) officials marking ballot papers contrary to the way they were instructed by the voter;

(iii) complete destruction of ballot papers and ballot boxes allegedly caused by an official not marking a ballot paper in accordance with the voters wish, or through deliberate interference by members of the public;

(iv) electoral official mistakes in sending the wrong ballot box to a polling place resulting in too many or too few ballot papers being available;

(v) manipulation of the counting of the ballot papers by refusing to count the contents of ballot boxes for an unlawful reason.

10. Most of the results of this case have been determined not by fine points of law, but by the difficult question of who to believe in circumstances where the evidence for the Petitioner and the evidence for the Respondents directly contradicted each other and the witnesses were calling each other liars. There were no doubt some very good liars in the witness box. However, some witnesses may simply have been confused by what they saw and misinterpreted or drew the wrong conclusion, or mistakenly recollected what occurred. Some witnesses may have been so convinced that what others told them occurred did in fact occur, that they felt justified in coming to court and giving the story as their own evidence. I have therefore for the most part simply said that I prefer one body of evidence over the other, rather than labelling witnesses as liars. However there were a significant number of instances where witnesses were knowingly lying.

11. Written submissions have referred to the rule in Browne v Dunn (1893) 6 R 67. This rule simply says it is not proper for one party to hide his case, what he is going to say about a certain issue, from the other party. If a witness gives evidence about an issue and the opposing party intends to contradict that evidence, the lawyer should not stay silent. In cross-examination he should put to the witness giving the evidence to be contradicted, the nature of the evidence which his witnesses will give, so that the witness has the opportunity of responding. "... any matters on which it is proposed to contradict the evidence in chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence in chief": Sidi Adevu v MVIT [1994] PNGLR 57 at 59. This rule can apply even if the witness does not give evidence which the other party intends to contradict, but is clearly the only relevant witness who could give evidence to contradict evidence, which the opposing party intends to give, expanding on evidence given by the witness. " In election petitions, this rule is necessary and its observance is a must, in my view, to enable the Court to do "real justice" by coming to a decision on the substantial merits of the case after being guided by rules such as this and those I have earlier discussed": Kamma v Itanu [2008] (No. 2) N3261 Kandakasi J.

12. It is not always necessary to put the proposed contradictory evidence to the witness in the witness box if the party calling the witness has had formal notice of what the opposing party will say in their case, either by some pleading document, an affidavit or a letter specifically written for the purpose: Cosmos Kitau Kitawai v The State (2007) SC927 Jalina, Mogish & Cannings JJ.at 164.

13. One of the consequences of not complying with this rule is that the Court can take the view that the lawyer was not instructed with the evidence, which is given by the witness, because the witness has just made things up: Togel v Ogio [1994] PNGLR 396, Doherty J. The weight of the evidence given is reduced: Kitawali v State (infra) at [172].

14. This has been a very long case. Hundreds of affidavits have had to be prepared in the very short timeframes imposed by the organic law and the Rules of Court. And I have no doubt that at times counsel have laboured under the difficulty of not being able to re-interview witnesses until shortly before their appearance in court. Consequently there have been lapses by all parties in the application of the rule.

15. I have not made a point of referring to each of these lapses unless counsel has specifically drawn an event to my attention in submissions or I consider that an omission to put an aspect of a party's case to the other party carries peculiar significance. Several adjournments were granted specifically for the purpose of counsel having the opportunity of taking instruction on new matters, which appeared in the oral evidence of the witnesses for the other party, which did not appear in their filed affidavits. However, once the Petitioner closes his case any omission by the Respondents to comply with the rule cannot be cured unless the Petitioner applies and leave is granted to recall a witness. No such application was made during the trial.

16. One undeniable fact which appeared from the results of the election at the counting centre is that out of the 35 grounds to be tried, 13 involved polling places where the First Respondent received 100% of the vote. Applying commonsense, logic and my almost 65 years of life experience, I have concluded that this just does not happen. Human beings are not built to be uniform. In a group of several hundred people, no matter how few, there will always be some with a dissenting view, some who cannot bring themselves to agree with the predominant view. Where individuals have a free fair and secret opportunity to express their choice, even in strongly tribal areas, even where the incumbent has been active in bringing services and is generally popular, there will always be a divergence of opinion resulting in votes for more than one candidate. Therefore, where the First Respondent has received 100% of the ballot something has more than likely gone wrong. I have used this conclusion on occasion to assist me in deciding which body of evidence to prefer. However, I have recognised that the results of an election cannot be set aside solely on my opinion. As the law to which I have earlier referred requires, there must be pleaded facts; and believable evidence must join those facts to prove them. If that does not happen, no matter how improbable the result of the vote at a particular polling place, the result cannot be disturbed.

17. Nor can the result be disturbed if the evidence called by the Petitioner appears to prove some valid ground for disturbing the results of the election, which was not pleaded in the Petition; for the obvious reason that the respondents have not had proper notice of the case that they were to meet.

18. The First Respondent made application to strike out the proceedings on an allegation that the Petitioner had not complied with the Court’s varied order to file his written submissions by a stipulated date. In my opinion the delay, if it occurred, was a technical one involving less than 24 hours and the First Respondent demonstrated no prejudice flowing to him by reason of the delay. Therefore that application is rejected.

19. Before going to the particular grounds, I just want to note 4 issues which were fairly consistently highlighted by the evidence, although not necessarily establishing a pleaded fact:

(1) the evidence establishes there there were a little over 50 security personnel in the combined strength of the police and army provided to Kandep plus an undisclosed number of reserve police. Providing 2 security personnel to each polling place would have required a security force of 222;

(2) there were a number of references to ballot boxes being transported late in the afternoon and into the night, which is a practice not only fraught with all sorts of risks to the safety of the ballot boxes, but is bound to give rise to rumours as to what is really going on. This practice of transporting boxes in the night appears to have occurred due to lack of both security and transport resources;

(3) there was a large amount of evidence to suggest that scrutineers were placed so that they were privy to how voters, voting with the assistance of polling officials, were casting their vote. Such an arrangement could obviously place pressure on a voter to vote in accordance with the will of the majority, or the most vocal or those prepared to use violence to enforce their views. It was also clear that scrutineers were ignorant of the requirements of the law for objecting to the counting of a ballot box. It would not be out of place for the Electoral Commission to run education courses for scrutineers so that they know what they cannot do and what they can do and how to do it;

(4) the law is that if someone wants to vote with the assistance of a polling official, that person must bring a list of their preferences, the polling official must read the list to the voter and confirm that it is the voters will, and then mark the ballot paper in accordance with the list: Organic Law section 140 (1A). There was no evidence that this was ever done and there was no evidence that the polling officials knew that this was the law. The evidence was consistent that anyone seeking the assistance of a polling official to vote simply told a polling official their choice, which is obviously open to abuse.

20. Now turning to the results of my examination of the evidence, the following table summarises the grounds of the petition argued at trial, the polling places affected, whether I consider the ground proven or not, and if proven the number of votes which can be pooled to determine whether the results of the election would, or might have been affected.

21. The result of the trial is therefore that I find 12 of the grounds proven and 7562 votes have been affected by illegal practices or lost votes. The Second Respondent has made a submission with respect to an alternate method of calculating whether or not the result of the election would be affected. I have given careful consideration to this submission. Ultimately I cannot agree with it because there is no authority in the organic law or case law for the alternate method of calculation proposed.

Paragraph of Petition	Polling Place	Votes Affected	Grounds of Allegation	Proven or Not Proven
B (1) (b)	Kolopa 1	541	Ballot stuffing	Proven
Ditto	Kolopa 2	481	Ditto	Proven
B (1) (c)	Kambia 2	380	Ditto	Proven
B (1) (d)	Kambia 3		Ditto	Not proven
B (1) (e)	Pura 1 (Sangin)	[1]	Wrong number of ballot papers/box stuffing	Not proven
Ditto	Pura 2 (Kolopen)		Wrong number of ballot papers/box stuffing	Not proven
Ditto	Pura 3 (Mamodai)		Wrong number of ballot papers/box stuffing	Not proven
B (1) (f))	Winga 2	634	Ballot Stuffing	Proven
B (1) (g)	Winga 1		Ballot stuffing	Not proven
B(1) (h)	Winga 3		Ballot stuffing	Not proven
B (1) (i )	Imali 2		Ballot stuffing	Not proven
B (2) (a)	Wasa/Sawi	384	Ballot stuffing	Proven
B (2) (b)	Kokas 2	696	Ballot stuffing/failure of the poll	Proven
B (2) (c)	Poketamanda 2	346	Ballot stuffing	Proven
B (2) (d)	Poketamanda 1		Ballot stuffing	Not proven
B(2)(e)	Lyumbi island	496	Unlawful denial of right to vote	Proven
B (2)(f)	Yapum		Ditto	Not proven
B (2)(g)	Muyen		General failure of the ballot by unlawful interference	Not proven
B(2)(h)	Walupim 2		Unlawful denial of right to vote	Not proven
B (2) (i)	Testes 1		Ballot stuffing	Not proven
B (2) (j)	Lawes 2		Ballot stuffing/unlawful marking	Not proven
B (3) (a)	Kinduli		Ballot box stuffing/ marking of ballot papers	Not Proven
Ditto	Kenean	683	Ditto	Proven
Ditto	Laguni	920	Ditto	Proven
Ditto	Imipiaka	643	Ditto/ballot stuffing	Proven
B (3)(b)	Titip	1046	Ballot stuffing/illegal marking of ballot papers	Proven
B (3) (d)	Yumbis		Ditto	Not proven
D.1	Taitenges		Early closure of polling station/partial failure of the poll	Not proven
D.2	Kitali	312	Ditto	Proven
E2	Boxes not returned for counting		Hijacked or destroyed	Struck out, insufficient pleading
E.5	8 boxes not counted by Returning Officer		Excluded from counting for an unlawful reason	Not proven

22. My view is that the law is still correctly stated by Baki Reipa v Yuntivi Bao [1999] PNGLR 232 Woods, Los and Salika JJ:

"However as soon as the number of disputed or lost votes exceeds the winning margin then as the Court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied."

23. Those comments were made when the winning candidate only had to score more votes than his opponents. One vote more was sufficient. With the LPV system, all that has changed, as far as the winning margin is concerned, is that the winning candidate must score 50%+1 of the votes cast. The number of votes in excess of 50% of the votes cast received by the winning candidate is the winning margin. If the number of disputed and lost votes exceeds 50% of the votes cast then the winning candidate was not properly declared the winner.

24. It has been submitted for the First Respondent, that should it be found that the aggregate number of votes affected exceeds the winning margin, then the Court should direct a continuation of the counting through the next stage of the elimination process under s168 of the Organic Law. The problem with that submission is, that no amount of further counting will give a vote to those deprived of the right to vote. Nor is there any way of identifying and removing the ballot papers which should not have been counted because of ballot box stuffing. Once counted the ballot papers do not go back to the ballot box from which they came. They are bundled up in parcels for good ballot papers and rejected ballot papers and the polling place at which a ballot paper was cast cannot be identified: Organic Law s169. Because the raw data, the ballot papers, is tainted with improperly cast votes, any further count will also be tainted. Nothing can be achieved by continuing the elimination process.

25. The 7562 votes affected exceed the winning margin of 6047. It has been submitted that it is not just and equitable that the result of the election should be disturbed because the First Respondent has not been guilty of any illegal practice. I acknowledge the seriousness of disturbing the result of the election, that the people of Kandep Open will have no representation for a time and the enormous cost and inconvenience of a by- election. I also acknowledge that the First Respondent still has a very substantial margin of votes over the Petitioner when the affected votes are deducted from his total. However my view is that it is essential that the people of Kandep know that their elected leader was returned as elected, according to law and not because some people thought they were above the law or could outsmart the law. The integrity of the electoral process is of paramount importance in maintaining public confidence in it. It is therefore my duty to declare that the First Respondent who was returned as elected was not duly elected; the 2007 election for the seat of Kandep Open is declared absolutely void.

26. I now turn to a detailed examination of the evidence in respect of each ground and polling place by which I have reached the conclusions summarised in the table above.

27. The first set of grounds concerns alleged illegal practices at Kolopa 1 and 2 and Kambia 1, 2 and 3. For the Petitioner's case much of the same evidence covers all 5 polling places. I have set out an abbreviated version of the allegation in the Petition in respect of each polling place, a summary of the evidence given by each witness, and then I address the submissions made with respect to alleged inconsistencies in the evidence, and finally come to a conclusion as to what I believe is the truth.

28. Paragraph B1(b) of the Petition alleges that boxes and ballot papers were taken from the polling places between 12 a.m. and 4:30 a.m. to Lyarop's men’s house, at Tutule where all of the ballot papers were illegally marked in favour of the First Respondent and stuffed into the boxes. The ballot papers and boxes involved were:

29. Nelson Pusal Yupnaik, a scrutineer for the Petitioner, gave evidence that there was no polling at Kolopa 1, that the ballot papers and boxes were taken into the First Respondent's campaign house at Kolopa where all of the ballot papers were marked in favour of the First Respondent. Then he said about 5:30 a.m. Luke Minjukul drove over and he assumed that he took the boxes away. He said there was no voting at Kolopa 1. Apart from seeing Luke Minjukul's car and that there was no voting, most of this witness’s evidence was hearsay.

30. Titus Kakipae gave evidence that he was appointed presiding officer for Kolopa 1 On the morning of 4th July 2007 he went to Kolopa with Pastor John Timothy. At Kolopa main field there was no sign of voting. There were people hopelessly standing around. They walked further on towards Kambia, but before reaching Kambia main field he was told by people coming towards him that there had been a death and there was a big fight going on. So he and Pastor John Timothy decided it was too risky and turned back. The next day he and Pastor John Timothy went back to Kandep station and reported the matter to Naipet Keae.

32. Masala Tepai said that the Kolopa 1 and 2 Boxes arrived 8pm on 3/7/07, polling commenced on 4/7/07. There was orderly polling at Kolopa 1, which ended at 3pm. Kolopa 2 finished before Kolopa 1. At 3:30pm they started walking with boxes to Kandep with Kolopa 1,2 & Kambia boxes. A Police vehicle took the boxes from Imali. Wesley Wapunaik gave similar evidence although he said it was 9pm when the boxes arrived and polling commenced at 8 AM on 4 July 2007 at Kolopa 1 and ended at 2 PM.

33. Buka Kep, businessmen, whose 10 seater Toyota vehicle was hired by the Electoral Commission, said he dropped the boxes for Kolopa 1 & 2 a little way apart at Kolopa at approximately 9:30 PM on the 3 July 2007.

34. Lesley Wapunaik who is from Kolopa but lives in Mount Hagen said that on 3/7/07 the boxes came & were kept in councillor’s house overnight. The next day during voting scrutineers stood at the back of the voters and could see how they voted. There was proper voting start to finish. They took the Kolopa boxes to Imali with other boxes. 300-350 people accompanied the boxes.

35. Okep Lel Kaio from Kolopa 2 said that in respect of Kolopa 1&2 Boxes were dropped off about 8pm. Could have been 8:30 or 9pm. Boxes for 1 & 2. Both boxes were kept in the councillor’s house. Polling for both Kolopa 1 & 2 started 4/7/07 at 8am. Kolopa 2 polling finished between 2-3pm.

36. John Naze Buison, District Project Officer, was Presiding Officer for Kolopa 2. He said he left Kandep about 7 PM on 3 July 2007 and arrived at Kolopa 2 about 8:30 PM. He overnighted at Councillor Masala Tepai's house. They started preparing for voting at 6 AM on 4 July 2007 and polling commenced at 7 AM. Polling finished at 1130-12 PM. There were no problems, no fighting, no gunshots. The scrutineers were 2 m behind the voting booth and could see what was going on. They walked the boxes to Imali where a vehicle from Kandep picked up the 5 boxes (Kolopa 1 & 2, Kambia 1, 2 & 3) with the Presiding Officers and took them to Kandep arriving about 4:15 PM. The handwritten report on the back of the Presiding Officers form 58, which he lodged, is not his. He does not know who wrote it. He presented the box for counting at the Counting Centre at Wabag on the 14 July 2007. There was no objection and the box was counted.

37. Paragraph b1(c) of the Petition alleges that about 2 a.m. on the 4 July 2007 the ballot boxes and papers for the two polling places Kambia 1 & 2 were taken to Lyarop's house man and the ballot papers all illegally marked with the first preference votes for the First Respondent and stuffed into the boxes. The ballot papers and boxes involved were:

38. Ess Pondololo from Kambia 2 gave evidence that he was at Taikipak mens house near the designated polling place for Kambia 2 where the boxes on ballot papers for Kambia 1 and 2 had been placed when they had arrived about 2 a.m. on the 4 July 2007. He said that some time a little later that morning the two boxes were loaded onto a double cabin Toyota hi Lux and taken to Kolopa where they were taken into Lyarop men's house. He said he followed the vehicle on foot went into the men's house and saw Alop Yakam signing ballot papers for Kolopa 1, John Bui signing ballot papers for Kolopa 2 and James Kunda signing ballot papers for Kambia 2 after which the signed ballot papers were passed to other persons, to fold and place in the ballot boxes. About 6 a.m. the box for Kambia 3 was brought in from Wapmandak. Soon after a group of about 60 men began escorting the ballot boxes along the road. At Pulya a large number of tribesmen from Kambirip tribe, the First Respondent's tribe, joined them swelling the numbers to 200. At Imali they were met by the security forces that put the boxes on a vehicle and took them away.

39. Constable Bradley Makaula attached to the Police or the Special Services Division, said he was deployed at Kandep for election duties during the National General elections. On the 4th of July 2007, about 10 a.m. when he was returning with other policemen from a run towards Mendi; at Pindak they came across a white Toyota LandCruiser which was overloaded. They stopped it and the passengers on the rear tray started to jump off and run away. Two were with high-powered rifles, one was captured but he later escaped. After the rifle was confiscated they drove about 1 km along the road and came across about 50 men, carrying five ballot boxes. It was about 10:30 a.m. and they picked up these boxes and took them to the Kandep Council, Chambers. He gave no evidence of the source of these boxes in terms of polling places. He did not indicate that any polling officials were picked up with the boxes.

40. Pastor Joseph Was said that about midnight on the 3rd of July 2007 he saw the ballot boxes, papers and officials for Kambia 1 and 2 being unloaded at the roadside. He said no polling took place at Kambia 1. He also said no polling took place at Kambia 2, but the basis of his knowledge for that statement seems mostly hearsay. He said none of the polling officials stayed at his house on the night of the 3 July 2007

41. Jonas Minjokan, Presiding Officer for Kambia 1 and resident of Kambia 2 said that there was no polling at Kambia 1, the ballot box and papers were taken away in the night of 3 July 2009.

42. Buka Kep, businessman whose 10 seater Toyota was hired by the Electoral commission said that he dropped the box for Kambia 3 at Wapmandak and Presiding Officer for Kambia 1 & 2 at Kambia 2 at 10 PM; and in oral evidence the box and Presiding Officer for Kambia 1 at Kambia 1 at about 10:20 PM.

43. James Kunda, schoolteacher, was appointed Presiding Officer for Kambia 2. He was dropped with his box around 930-10 PM at Kambia 2. He spent the night in the Tinjapak men's house with his box. His team of polling officials were already there, although he met only one of them that night and the others the following morning. On the 4 July 2007 he conducted polling from 7 AM to 1 PM then he walked with the box to Imali where a security vehicle picked him and the box up at about 4 PM. Kambia 1,2 and 3 and Pura 1 and 2 boxes and polling officials accompanied them and those boxes and the Presiding Officers got on the security vehicle at Imali with him. They arrived at Kandep station about 4:30 PM. He was at the Counting Centre at Wabag on the 14 July 2007 when the box was counted. There were no objections. He was also part of the counting team for the purity check on 15 July 2007.

44. Paragraph B1 (d) of the petition alleges that the box for Kambia 3 was dropped at Wamdaka and taken to Opale Omeol's house with all of the ballot papers which were illegally marked with first preferences for the First Respondent and stuffed into the box. The box and ballot papers involved were:

45. Jude Nolo gave evidence that there was no polling at a Kambia 3. He gave other evidence of being told that the box for Kambia 3 was offloaded left in the custody of some persons overnight, that the ballot papers were all illegally marked and put into the ballot box at night and early the following morning the ballot box, taken away to Kandep. He said, Buka Piri, one of those in whose custody the box was supposed to be in that previous night, told him that the security forces had taken the box to Kandep. Apart from the conversation with Buka Piri most of this evidence was hearsay.

46. Pastor Joseph Was from Kambia 1 gave evidence that there was no polling for Kambia 3.

47. Ben Pirin subsistence farmer from Kambia 2, was Presiding Officer for Kambia 1. He came from Kandep on the evening of the 3 July 2007. There were 2 vehicles, a Toyota 10 seater which contained the ballot boxes and 7 polling officials and the following police vehicle in which he was riding. They arrived at Kambia 1 at 9:10 PM according to his watch. He spent the night at Pastor Joseph Was's house. Pastor Joseph Was asked him to mark all of the ballot papers in the night for the Petitioner. He refused. I am dubious about this allegation. It is in the same vein as the allegations that witnesses were drunk. I consider it has been made to discredit Pastor Joseph Was, who denied that any polling officials spent the night at his house. Ben Pirin continued that the polling officials gathered to prepare for polling at 6 AM on 4 July 2007 and polling started at 7 AM and finish at 11:30 AM. After polling he walked with the box to Kambia 3, then together with those officials they walked to Kambia 2 and from there to Kolopa. At Kolopa they waited for the people to finish polling there, then with those polling officials and boxes and a large gathering of people (over 1000) they went to Imali where a security force vehicle coming from Kandep picked up the 5 boxes and the Presiding Officers and took them back to Kandep. He was at the Counting Centre at Wabag on the 14 July 2007 when the box was presented for counting. There was no objection to the box which was counted.

48. Buka Kep, businessman whose 10 seater Toyota vehicle was hired by the Electoral Commission said he dropped the box for Kambia 3 at Kambia 3 at approximately 10 PM on the evening of the 3 July 2007.

49. Momende Tep from Kambia No. 3 (Kola) said that the Box arrived Kambia 3 at 9pm 3/7/07. He was at Kambia 3 Kola on 4th July 2007 when they cast their votes normally. Box had been kept o/night at Kola rest haus. After voting they waited for the box & people from Papali then they walked together to Kambia 2. From there with Kambia 1, 2 & 3 they went to Kolopa. They went on to Imali where the security force met them & took the boxes.

50. Gideon Cletus from Lagalap village and a teacher at Lagalap primary school was Presiding Officer for Kambia 3. On the 3 July 2007 he left Kandep about 7 PM arriving at Koloa (Kambia 3) at 9:10 PM. There were 7 Presiding Offices in a Toyota 10 seater +8 boxes when they left Kandep. One polling official was in the following police vehicle. He stayed overnight in the Kambia 3 house man with the box, his officials, village leaders and some young men. Polling started on the 4 July 2007 at 7:30 AM and end at 12:30 PM. A message was received from the police that a bridge was down and the box would have to be walked out. They reached Kolopa about 1:30 PM and left about 1:40 PM and arrived at Imali at 4-4:30 PM. They were picked up by a security vehicle coming from Kandep and taken to Kandep. After filing his Presiding Officers report and just before he left Kandep for his home he checked his watch; it was 4:45 PM. At the Counting Centre at Wabag the box was presented on the 14 July 2007. No one objected to the box being counted.

51. It is convenient to deal with the grounds relating to Kolopa 1 and 2 and Kambia 1, 2 & 3 together because the Petition's evidence of events relates to all of them in a combined way.

52. In a sea of contradictory evidence it is essential when analysing it to find some facts which are agreed or for which the evidence is the same between the parties or at least some evidence which is most likely to be true because none of the parties have in cross-examination challenged that evidence. So that by the application of logic and common sense and an analysis of the wider picture establish by the evidence it can be seen which evidence is consistent with and which evidence contradicts the evidence most likely to be true.

53. Buka Kep is the only witness whose evidence falls into that category. His evidence was examined in cross-examination, contradictory versions of what he said were put to him, but it was never put to him that he was mistaken, failing in his recollection or lying

54. There is only one obstacle to accepting that all of his evidence is true and accurate. That is Buka Kep's affidavit which reads "at Kolopa, I stayed 30 minutes and then went to Kambia at 10 PM and left the Kambia box 1 at Waomunduk with polling officials. (4) I stayed another 10 minutes, and then I went to Kambia and left two (2) boxes with polling officials." In his oral evidence he said he left one box at each of 2 separate places in Kambia after dropping the Waomunduk box . This discrepancy was not put to Buka Kep in cross-examination. It might be explained simply as being shorthand for his oral evidence, a simplification because there was no significant distance between the 2 polling places at Kambia, being only 2 or 3 minutes apart by vehicle. However, another possibility is that Buka Kep tailored his oral evidence because he was concerned he may not have done what he was paid to do or for some other reason, such as persuasion by others. The petitioner now draws attention to this discrepancy, which is an important one because it goes to the very heart of one of the Petitioner's contentions, namely that there were 2 boxes at the Taikipak men's house. I therefore have to treat this part of Buka Kep’s evidence with some diffidence. He did not retract the affidavit evidence. The oral evidence contradicts it.

55. The discrepancy has even further significance because the Petitioner’s case is that the ballot papers were filled in and stuffed into the boxes in the night and brought to Imali by men walking in the morning and then taken to Kandep by a police vehicle coming from Pindak direction which picked the boxes up from Imali about 10 to 10:30 AM. The Respondents evidence is that there was proper polling at all those polling booths and the boxes were brought to Imali between 4:15 at 5:30pm when they were picked up by a police vehicle with the Presiding Officers. However, in cross-examination, Buka Kep said he saw the boxes brought into Kandep by police. When asked by the court what time that was, he said between 10 and 11 AM. Of the boxes that Buka Kep dropped off the previous evening, the Pura boxes we know were returned to Kandep by helicopter so that it would only be the Kolopa and Kambia boxes which Buka Kep saw. Therefore Buka Kep, the 2nd Respondent's own witness, corroborates that part of the case for the Petitioner that the boxes were returned to Kandep mid-morning and not late afternoon as contended for by the Respondents witnesses. Counsel were given the opportunity to ask further questions on the evidence elicited by the Court but no counsel suggested to Buka Kep that he was mistaken or did not positively identify the boxes arriving at 10-11am. We know the Pura boxes were not included because they went back by helicopter. In the contetx of Buka Kep’s evidence he could only have been speaking of the other boxes he delivered the previous night, being the Kolopa 1, &2 and Kambia 1, 2 & 3 boxes.

56. Buka Kep’s evidence that the boxes for Kolopa 1 & 2 and Kambia 1, 2 & 3 arrived at Kandep on 4th July 2007 between 10-11am cannot stand with the Respondents other evidence, because there is no way that boxes which arrived in the night of the 3rd so that polling could commence the following day, could be ready and carried by walking men to Imali by 10 or 11 am. By ready I mean proper polling conducted, the boxes sealed and carried.

57. There is no rule that a trial judge must reject all of a witness’s evidence because he finds some of it inconsistent. A judge is free to accept some evidence from a witness and reject other parts of the evidence, even if it relates to closely linked events: Ano Naime Maraga & 2 Ors v The State (2009). In my opinion, when the evidence of the opposing parties co-incides, that part of the evidence is very likely to be true. I therefore accept the evidence of Buka Kep that the 5 boxes for Kolopa and Kambia arrived at Kandep between 10-11 am on the 4 July 2007 in a police vehicle because that agrees with the evidence for the Petitioner from Ess Pondololo. I accept Buka Kep’s evidence that he left Kandep at about 8:30pm on 3 July 2007 because that accords with the evidence of Johannes Minjokan, witness for the Petitioner. I reject Buka Kep’s evidence that he dropped one box each at Kambia 1 & 2. I consider his original evidence which agrees with the evidence of Minjokan and Pastor Was is most likely the truth. I accept as far as Buka Kep is concerned he might not have seen the 3rd vehicle the Toyota hi Lux vehicle, if he stayed in his own vehicle, as Ess Pondololo says he did, at Kambia 2.

58. There are alleged discrepancies between the evidence of the Petitioner's witnesses. Ess Pondololo and Johannes Menjokan said they heard shouts when the boxes were taken away from Kambia 2. Pastor Joseph Was said he did not hear any shouts. But it has to be remembered that Pastor Was was sleepy and walking away from Kambia 2 to his house 1 km away, whereas the other 2 stayed in Kambia 2, so that it is quite reasonable that Pastor Was would not hear shouts from Kambia 2 on the way to his house.

59. The timing discrepancies I do not consider significant. Ess Pondololo and Pastor Was were making a guess as to the time, Ess Pondololo said he was assisted by the clouds. Even though there is a discrepancy of 5 hours between his times and those of Menjokan and Buka Kep, whose times I accept as more accurate, when the witness had no means of accurately determining the time wild inaccuracy can be expected, and I do not consider that those discrepancies go to the truth or otherwise of the evidence.

60. I would have hesitated to accept the evidence of Ess Pondololo on its own because of his admitted past criminal record. However in my view aspects of his evidence are sufficiently corroborated by the evidence of Bradley Makaula, Buka Kep, Johannes Minjokan, pastor Timothy and Titus Kakipae to be accepted.

61. I should comment on the discrepancies in the evidence of other witnesses. Titus Kakipae, witness for the Petitioner and appointed Presiding Officer for Kolopa 1 said that at 9 PM the Returning Officer told him and pastor John Timothy to go home and rest and they would be picked up at the house. As the fact that the vehicle left with the ballot boxes from Kandep at 8:30 PM is one of the few facts on which witnesses for the Petitioner and for the Respondents agree, I have accepted that Buka Kep's vehicle did leave Kandep at 8:30 PM and I do not accept that Kakipae and Timothy were still at the Council Chambers at 8:30 PM. I find that they left earlier. The next morning the 2 men walked to Kolopa main field and saw no sign of voting. I accept that evidence.

62. The Respondents submit that if Kakipae and Timothy had been on the road on the morning of 4 July 2007 they could not avoid seeing a big group of men carrying 5 ballot boxes. However, Ess Pondololo's evidence is that in the early part of the walk they did not follow the main Road. I do not find in the evidence any basis for saying that the 2 men and the large group must have passed each other or must have seen each other. Pastor Timothy did say they passed a group of about 40 young men between 9-10am on 4th July 2007 on their way to Kolopa but thought it best to say nothing to them.

63. The respondents have submitted that the evidence adduced by the Petitioner does not prove the facts alleged by him in the Petition. A petitioner is bound by the facts pleaded in his petition of which there can be no amendment after 40 days from return of the writ: Kopaol v Embel SC727 at page 16. However, it does seem to me that, for example, a pleaded set of facts may establish one or more illegal activities. And where that is the case and the facts proven in accordance with the pleading are sufficient to establish one of those illegal activities, that evidence will not be vitiated by the failure to prove the other facts in the pleading related to another illegal activity. And where facts are alleged which, if proven, would not constitute grounds for setting aside an election result, the failure to prove those facts is immaterial.

64. The First and 2nd Respondent’s both submit that what is pleaded in the Petition in respect of transporting the boxes after they had been stuffed with votes at Laku, Joseph Lomon's house, is that the boxes were transported by the First Respondent's wife's vehicle, whereas the evidence proves the boxes were carried by men.

65. What the Petitioner's evidence proves is that named persons placed or were privy to placing in the ballot boxes ballot papers not lawfully handed to and marked by an elector contrary to the provisions of Criminal Code s110. The carrying of the ballot boxes by persons who knew of the manner in which ballot papers had been placed into the ballot boxes may make the persons who carry the ballot boxes accessories after the fact in criminal law terms. So I accept the Respondent's submission that in respect of the carrying of the ballot boxes after the events at Joseph Lomon 's house, the pleaded facts have not been established and that evidence does not establish any further illegal activity. But that failure does not detract from the fact that the stuffing of ballot boxes has been proven by Ess Pondololo's evidence as corroborated by the other witnesses.

66. It is submitted for the First Respondent that Johannes Minjokan gave evidence that Titus Kakipae was with them on Buka Kep 's vehicle when it left Kandep at 8:30 PM on the night of 3 July 2007, that he went down with the box when it was delivered to Kolopa. A careful study of his evidence shows that this is not the case. What he said was that when the boxes were dropped at each polling place the relevant polling official went down. He was then asked "do you know who the Presiding Officers were for Kolopa 1 & 2". And he answered Titus Kakipae and John Bui. He was not asked were they on the vehicle or did they go down when those boxes were dropped. It would be dangerous to draw an inference that if he was asked he would have said those persons were on the vehicle and went down at their respective polling places, because so often witnesses take the question asked literally as a "stand-alone" enquiry and not contextually with the previous questions.

67. It is also been submitted that there is a discrepancy between the evidence of Johannes Minjokan and Pastor Joseph Was because the latter said they asked the polling officials to let them look after the boxes, whereas Johannes Minjokan said there was no such request. It seems to me that on the evidence both statements can stand. Firstly in a group of 60 or 70 people, who were said to be waiting around for the boxes to arrive, statements made by one person might be completely ignored and go unheard because a person's attention is focused on what is being said by some other person. Secondly, from the evidence Johannes Minjokan left Taikipak men's house very early in the piece, shortly after the boxes were placed there. The issue of the people looking after the boxes may have been raised after he left. I do not regard this as a serious discrepancy because the surrounding circumstances make it possible for both viewpoints to be correct.

68. It is submitted for the First Respondent that there are discrepancies in the evidence for the Petitioner with respect to the timing of the taking away of the ballot boxes from Kambia 2. It is submitted that Ess Pondololo said that the Kambia boxes were loaded onto the hi Lux immediately after Buka Kep 's vehicle left whereas Johannes Minjokan and pastor Joseph Was said that the boxes were in the Taikipak men's house and were removed some 20 to 30 minutes later after they had gone home. In fact Ess Pondololo's affidavit paragraph 4 is entirely consistent with the evidence of Minjokan and Pastor Was. He says "the boxes of Kambia and No. 1 and 2 arrived in a 10 seater. Buka Piri (candidate), Kundi Sambiru and Toli Mandasal then took them into a house man known as 'Taikipak house man'. After some time, the 2 boxes were loaded onto the double cabin Toyota hi Lux by the same buys (sic) above and took them to Kolopa". His oral evidence in chief was the same. The First Respondent's submission cannot be sustained.

69. It is submitted for the First Respondents that there are discrepancies within the Petitioner's evidence with respect to the number of vehicles which brought the ballot boxes. Ess Pondololo said the 2 vehicles came, Buka Kep's vehicle carrying the boxes and later the Toyota hi Lux. Johannes Minjokan said there were 3 vehicles, Buka Kep 's vehicle, the police vehicle and the Toyota hi Lux. It is true that Ess Pondololo does not mention the police vehicle. It was not carrying ballot boxes, he may not have considered it important. He was not directly asked about it.

70. It is also submitted that pastor Joseph Was said 3 vehicles came to Kambia No.1, 2 remained only Buka Kep 's vehicle went to Pura; whereas Ess Pondololo said there was no police vehicle and only Buka Kep 's vehicle went to Pura. Ess Pondololo did not say there was no police vehicle, he gave no evidence about a police vehicle, nothing was ever put to him about a police vehicle, nor did he give any evidence about Buka Kep’s vehicle going to Pura. It was Johannes Minjokan who said only Buka Kep 's vehicle went to Pura. The submission cannot be sustained.

71. It is further submitted for the First Respondent that Ess Pondololo said the 2 boxes for Kambia were delivered by Buka Piri, Kundit Simbaru, and Toli Mandasal; whereas Joseph Was and Johannes Minjokan said the 2 boxes for Kambia 1 and 2 were delivered by Johannes Minjokan and the Presiding Officer for Kambia 2. What Ess Pondololo said was that the named persons carried the boxes into the Taikipak men's house. He thought that Buka Piri came with the boxes but he gave no evidence that the named men were seen coming out of the vehicle which brought the boxes. Pastor Joseph Was said Ben Pirin and Johannes Minjokan took the boxes to the men's house. He saw Buka Piri there, and Ess Pondololo. He did not see Toli Mandasal or Kundit Simbaru. He was tired and headed home immediately the boxes were put into the men's house. Jonas Minjokan was not asked and gave no evidence about who he saw outside or in the men's house. Jonas Minjokan said that the light from the vehicles was the only light, so that it is quite possible that some witnesses saw some people and others saw different people, depending on where they were in relation to the light. I do not think there is a significant discrepancy here.

(1) Ess Pondololo gave evidence that no guns were fired at Joseph Lomon's house or where the illegal signing was taking place; Nelson Yupnaik said the illegal marking took place at Kolopa campaign house and that shots were fired from that house. There is a clear conflict here. The bulk of Nelson Yupnaik's evidence is hearsay. He did not see any marking of ballot papers, he did not see the ballot papers and boxes being brought to the campaign house or taken away from the campaign house. His evidence is guesses, assumptions and reliance on what other people told him. He signed an affidavit which he did not properly read. Apart from the gunshots, there being no polling at Kolopa 1 and seeing Luke Minjokan's vehicle, there is nothing in his evidence which is first-hand and on which any reliance could be placed. In my view the evidence of gunshots is a fictitious embellishment to make the balance of Nelson Yupnaik's evidence about marking ballot papers at the campaign house believable. I am not prepared to give any weight to Nelson Yupnaik's evidence except those parts which are corroborated by other believable evidence.

(2) Jude Nolo in paragraphs 2, 3, 4 and 5 of his affidavit said Buka Piri was dropped off at Wamdaka by Buka Kep with the Kambia 3 box, whereas Ess Pondololo said Buka Piri came to Kambia 2 with the boxes for Kambia 1 and 2. Firstly, apart from the evidence that on the morning of the 4 July 2007 Jude Nolo and others met Buka Piri at Kambia 2, most of Jude Nolo’s evidence is hearsay. I am not prepared to place any weight on the hearsay unless it is corroborated by believable first-hand evidence. The conversation that Jude Nolo related with Buka Kep was to the effect that the Kambia 3 box was picked up by Joe Pen and Buka Piri at Wamdaka, not that they were dropped off with the box. Ess Pondololo said he thought Buka Piri came to Kambia 2 with the boxes, but he gave no evidence of Buka Piri coming out of Buka Kep 's vehicle. So that putting all of the evidence together it is conceivable that if Buka Piri was in a separate vehicle he could be at Wamdaka and picked up the Kambia 3 box and also at Kambia 2 to pick up the Kambia 2 box. I do not think that a strict analysis of the evidence shows that there is really a conflict here. It is more of an unresolved issue.

(3) Nelson Yupnaik did not mention seeing 60 men carrying ballot boxes on the morning of the 4 July 2007 at Kolopa. He does not corroborate Ess Pondololo's evidence in this regard. That is true. However, he was not asked and we do not know whether the 60 men would have to pass through the centre of the village or pass by Nelson Yupnaik’s house. Ess Pondololo gave evidence that there was a small road that went to Joseph Lomon's house. And he also said that for the first part of the journey to Kandep they followed a bush track. Because the issue was not explored in cross-examination with either witness, the evidence does not exclude the possibility that the men could have left without passing through the village or near the ceremonial ground or Nelson Yupnaik’s house.

(4) Pastor Joseph Was said he was a registered voter for Kambia 1 but that name was not on the electoral roll. He claimed that Joe Warr on the electoral roll was his name. Pastor Joseph Was pointed to a number of "Joe's" and a number of "Warr's" on the roll who he said were related to himself. His father was "Warr". So that it is possible that he was correct in his evidence. Even if he is mistaken I do not see that anything flows from this issue. No other witnesses on either side suggested that he was not a resident of the area, or that he was not there at the relevant time.

73. It is submitted by the First Respondent that a number of matters in Ess Pondololo's evidence are unbelievable, namely:

(5) How did know that the boxes were taken to Joseph Lomon's house? Ess Pondololo answered that question in this way (1) he was on Wamda mountain and saw the lights of the vehicle, it stopped at Laku then went on to Kolopa direction. When he got close he heard people in front of him talking so he followed them.

(6) Why did Ess Pondololo leave the 2 boys that were with him behind when he went to Joseph Lomon 's house? Ess Pondololo said it was a ‘trouble place’; he himself would not have gone in to Joseph Lomon's house except that his brother had died in that tribe's cause, which made it safer for him.

(7) Why did Ess Pondololo not see Pastor John Timothy and Titus Kakipae who were dropped off at Sorengk bridge about 7 AM when Ess Pondololo and a large group were passing there about 8 AM.? Apart from the fact that they did not see each other, which was confirmed in cross-examination, nothing else was confirmed or explored in cross-examination about the possibility of meeting or the possibility that they could pass without meeting. They passed the same point an hour apart. Ess Pondololo said they took a track, not the main road, as far as Pull then they took the main road to Kandep. There is no evidence of where Pull is in relation to Sorengk bridge. So the answer to why Ess Pondololo did not see pastor Timothy and Titus Kakipae is that we do not know, because the evidence does not provide an answer. It is submitted that it is impossible for Timothy and Kakipae to pass through Sorengk to Kolopa without meeting 260 men carrying 5 boxes. That submission is not based on the evidence. There is no evidence that it would be impossible.

(8) Jonas Minjokan and Ess Pondololo said both Kambia 1 and 2 boxes were dropped at Kambia 2. Pastor Joseph Was and Max Mongal said that Kambia 1 and 2 boxes were dropped at Kambia 1. This misconstrue's Pastor Joseph Was 's evidence. His evidence was that his house is about 1 km from the Taikipak men's house. When he heard the vehicles he rushed up to the road, he saw vehicles stopped on the road and the polling materials being put down. He did not say how far away the vehicles were. However, when he went to investigate he was clearly at Taikipak men's house where he saw Johannes Minjokan and Ess Pondololo. Pastor Joseph Was 's evidence cannot be construed to say the boxes were put down at Kambia 1. There is no ambiguity in Max Mongal's evidence; in his affidavit paragraph 8 he clearly says that the boxes for Kambia 1 and Kambia 2 were dropped at Kambia 1 by Buka Kep while Max Mongal was there about 12 midnight. Because most of his evidence was related to Pura; nothing he said in his affidavit about Kambia was explored in oral evidence. All that can be said is that he was completely confused about which Pura was which and there remains the possibility that he was similarly confused about Kambia. As counsel for the first Respondent submits it does not make sense that the box for Kambia 2, which is before Kambia 1 on the road, would be brought on to Kambia 1. I could not rely on Max Mongal's evidence in relation to Pura and I would be reluctant to rely on it in relation to Kambia. I conclude that the boxes for Kambia 1 and 2 were dropped at Kambia 2.

(9) Ess Pondololo was with the crowd when the 5 boxes were delivered to security personnel at Imali, he had a good opportunity to report to the police but did not do so. It is suggested this is unbelievable. One man, surrounded by 260 others all fully supportive of bringing these 5 boxes to Kandep, reporting to police that the boxes should not be counted, would I think not last very long. He would be silenced long before police could intervene. I do not think it is at all unbelievable that Ess Pondololo would say nothing to the police.

(10) It is submitted that Johannes Minjokan cannot be believed when he said that he stayed at home on 4 July 2007, when his duty lay in informing the people about the missing box. But what would he tell them that they did not already know? His evidence was that there was a fight between supporters because of the missing box. The news had obviously travelled, anyone turning up to vote would see no box. There were obviously powerful forces at work as far as Jonas Minjokan was concerned and I can understand his nervousness of being out and about in the circumstances.

74. Because the boxes were brought in the night the only opportunity for polling was the 4th July 2007. All of the Respondents witnesses give evidence of that polling with the boxes being carried to Imali and picked up by police vehicle in the late afternoon with the polling officials. Unfortunately all of that evidence cannot stand with the evidence of Buka Kep that he saw the boxes returned to Kandep between 10 and 11 AM. That evidence simply gives the lie to the evidence that there was proper polling because it could not have occurred in the time frame. I think this view is reinforced by (1) the evidence of Ess Pondololo, (2) the evidence of Bradley Makaula and (3) the improbable result at the count, that in each of those boxes the First Respondent received 100% of the vote.

75. In respect of the pleading in the Petition I find that paragraph B1 (b) for Kolopa 1 and 2 paragraph 7 that Alop Yakam and John Bui marked the ballot papers and were privy to them being placed in the ballot boxes without polling; and paragraph 14 that there was no polling, proven.

76. In respect of the pleading in the Petition for Kambia 1 and 2 I find that paragraph B1 (c) paragraph 7, the 2nd sentence of paragraph 8 that Ben Piri and James Kunda marked ballot papers and were privy to them being placed in ballot boxes without proper polling, paragraph 9 and paragraph 12 that there was no polling, proven.

77. In relation to Kambia 3 I agree with the First Respondent's submission that the pleaded method and time of transportation of the Kambia 3 box to Joseph Lomon 's Laku house has not been established by the evidence.

78. The core of the precise pleading in respect of Kambia 3 is contained in paragraph 4 & 5 of the ground in the Petition and is as follows:

"4. At Wamdaka, the Ballot Box was taken to Opale Omeol’s house. Inside the house, Gideon Cletus, Werisi Hem, Opale Omeol, Simil Heol, Joe Ben Simil and Werisi Buka Piri, a candidate and others were there.

5. Buka Piri, Joe Ben Simil and Gideon Cletus signed the ballot papers and marked the first preference votes for Don Pomb Polye and the Second and Third preference for candidates they preferred including Buka Piri and the rest of the person in the house assisted to fold the ballot papers and put them into the Ballot Box."

79. No first-hand evidence was called in respect of any of those allegations. Jude Nolo and pastor Joseph Was both said there was no polling at Kambia 3. Nearly all Jude Nolo' s other evidence was hearsay. Pastor Joseph Was gave no evidence relevant to the above pleading. The only pleaded fact which the evidence could establish is that there was no polling. I have to find that all of the other allegations in this ground not proven.

80. Logically, if the box to Kambia 3 was delivered in the night, which is established by all of the witnesses, and I accept as I do that the box was brought to Joseph Lomon 's house at 6 AM, and I accept that evidence because Ess Pondololo Bradley Makaula and Buka Kep say 5 boxes were brought in to Kandep between 1030 and 11am on 4th July 2007 by men walking the boxes to Imali; there was no opportunity to conduct polling. Therefore I am satisfied beyond reasonable doubt that no polling took place at Kambia 3. Consequently the contents of the box were not validly cast votes.

81. In respect of the pleading in the Petition for Kambia 3 I find paragraph 1 and 8 (no polling) proven.

82. In respect of Kolopa 1 and 2 and Kambia 1 and 2 I find that all of the ballot papers were affected by breaches of section 110 Of the Criminal Code, section 190 and 191 (8), 191 (11) and 191 (14) of the organic law.

83. In respect of Kambia 3 the pleaded and proven facts are of such a limited scope that I am unable to find that they establish any illegal practice by a named person or error or omission on the part of officials.

84. This is a difficult ground to summarise to one or two sentences. The first allegation in the petition at paragraph B1 (e) is that at the pre-count, where ballot papers were counted out for each ward, prior to the elections, the local place names for Pura 1, 2 & 3 were mixed up resulting in the wrong numbers of ballot papers going to each polling station. The following table demonstrates the allegation:

a) 210 ballot papers were sent to Mamodai (electors on the role allegedly 308) and therefore 98 did not vote;

b) 541 ballot papers were sent to Sangin (electors 205) and therefore 336 votes were stuffed in the box;

c) 393 ballot papers were sent to Kolopen (536 electors), "but 143 less ballot papers were issued. Hence 243 (sic) voters did not cast their vote." The table acknowledges that ballots cast were 540 so that this pleading is inconsistent with the actual result at the counting centre.

86. Mr Rubin Sei said he was at the pre-count and at the scrutiny and counting, and he gave evidence in support and in line with the allegations in the Petition. His affidavit at page 29 subparagraph (iii) sets out a table of how the ballot papers were distributed, which he said was compiled from contemporaneous notes he took at the distribution centre. I called for production of his contemporaneous notes, and an examination of those showed a different position from that set out in his affidavit, as follows:

87. Finally it is alleged that 227 ballot papers were stuffed (it is not alleged in which box) because:

d) the total number of ballot papers issued for the three polling places was 1144, 80 more than the total number of electors on the three rolls plus 5 extra for each, and;

e) at the count 1291 ballot papers were counted. Therefore 1144 -80 = 1064; and 1291 minus 1064 = 227.

88. Matthew Lale said that at the scrutiny and count he noted that box 39 for Pura 2 (Sangin) was taken to Pura 3 (Kolopen), that box 52 for Kolopen was taken down to Sangin (Pura 2).

89. I have to say at the outset that the discovery that Mister Sei's sworn affidavit evidence did not coincide with the contemporaneous notes which he took did not impress. The Petitioner's submissions made no effort to explain or reconcile this difference.

90. The position put by Mister Sei in his affidavit is contradicted by Matthew Lale's evidence. He said that it was only a mixup between Pura 2 and Pura 3, Pura 2 being Sangin (which is wrong) and Pura 3 being Kolopen (correct). And he discovered at the counting centre that the Sangin box was taken to Kolopen and the Kolopen box to Sangin. However, Matthew Lale did not explain how he could know at the counting centre where the box had been. One way is to compare the box number with the place to which it was allocated at the pre-count and the place for which it is being counted. Matthew Lale's annexure to his affidavit purporting to be his own note of what happened at the pre count of ballot papers shows Pura 1 (Mamodai) allocated box 10, Pura 2 (Sangin) allocated box 39) and Pura 3 (Kolopen) allocated box 52.

91. There was widespread confusion amongst the witnesses as to which Pura was which. Max Mongal said that Pura 2 was Kolopen and Pura 3 Mamodai. Joe Kop said that Sangin was Pura 3.

92. The following table shows a comparison of the evidence given by Mister Sei and Mister Lale concerning allocation of boxes at the pre-count:

93. Returning to Mister Sei's evidence, he also annexed to his affidavit what appears to be an official form setting out in columns the team number and date, the ward number and date, the polling place, the polling village and a blank column. And his evidence is that he wrote down in the blank column and elsewhere the additional data that appears. I understand from his affidavit that he did this at the counting centre in Wabag at the pre-count, recording the number of ballot papers and the box allocated to each polling station. For Pura 1 he noted 210 ballot papers and box 10, for Pura 2 he has noted 393 ballot papers and box 39 and for Kolopen he has noted 541 ballot papers and box 52. This would all appear to be correct in accordance with the numbers on the electoral roll. Kolopen did not appear on the list as Pura 3. And it would seem to contradict Mister Sei's assertion that Pura 3 was called Sangin at the distribution. There was no Pura 3 on the list. And he has noted in his own hand writing that box 52 was allocated to Kolopen. Certainly it is very difficult to understand how he could assert that box 39 was allocated to Kolopen in the light of his own notes that it was allocated box 52. Matthew Lale has annexed to his affidavit (annexure ‘A’) a typed version of his list made during the distribution. It shows Pura 1 box 10, 210 ballot papers, Pura 2 Sangin box 39, 393 ballot papers, Pura 3 box 52, 541 ballot papers.

94. I must weigh against that conflicting evidence the evidence from Reuben Sei that when he signed the form 66 it contained no corrections to the Pura names. And the rather curious denial from Balo Kuringi, who was filling in the form 66 at the counting centre, that there had in fact been any change. It is absolutely clear to anyone who looks at the form that it has been changed. And it looks very much like, even though I was provided only with a photocopy, that for Pura 2, 2 has been written over 3 and for Pura 3 (Kolopen), 3 has been written over 2. But when you look at the allegations made by Reuben Sei and Matthew Lale, they both involve Sangin being allocated box number 39 or 52. Whereas Joe Kop's evidence is that Sangin was correctly allocated box 10; and he was at Sangin and Reuben Sei and Mathew Lale were not. Joel Manas witness for the First Respondent in respect of Pura 2 Mamodai, when asked in cross-examination for the box number, said it was 39 as it should be. So even if there was a confusion at the counting centre, it would have to be a confusion between Mamodai and Kolopen, not between Sangin and Kolopen, which is the allegation both Reuben Sei and Matthew Lale make.

95. Faced with this contradictory and unreliable evidence I cannot be satisfied to the requisite degree that the errors, in allocation of boxes and ballot papers alleged, actually occurred. In fact, quite the opposite, with positive evidence that boxes 10 and 39 were at their correct polling places it follows that box 52 must also have been at its correct polling place. I am satisfied beyond reasonable doubt that this alleged confusion did not occur. The witnesses have confused themselves with their own pre conceptions of which place name attached to which Pura.

96. Paragraph 10 of this ground pleads in a general way that insufficient or the wrong amount of ballot papers were sent to each of the polling stations as a result of which there was block voting, rather than voting individually by individual electors. Read with the rest of the pleaded ground the specific numbers are provided.

97. Joe Kop gave evidence for the Petitioner. He said polling started at 6 AM on 4 July 2007. He is from Sangin. He thought Sangin was Pura 3 (Sangin is Pura 1). There were very few voters about and the Presiding Officer handed out blocks of ballot papers, 60 to him which he marked for the Petitioner, possibly a few to other candidates supporters, he did not see, and the balance for the First Respondent. He confirmed that the box number allocated was number 10.

98. Jack Kirr from Pura 1, a young leader, said that the box arrived from Mamodai for Sangin Pura 1 on 4 July 2007 and polling went well. There were 205 on the common roll and 210 ballot papers issued. The helicopter picked the box up after voting.

99. I am rather dubious about the veracity of Joe Kop. He said he participated willingly in unlawful marking of the ballot papers. He knew that it was not what had occurred in previous elections. But when the Returning Officer and police arrived in the helicopter, he said nothing. There is a striking similarity of pattern between the content of his affidavit and the affidavit of Max Mongal given in respect of (he said) Pura 2 (actually Pura 3). They both say voting started early in the morning before the voters had arrived, they both say there was block voting, they both say there was no preparation for the polling. They both say the helicopter arrived at 10 AM and they both say that they did not report the irregularities, when the opportunity presented itself. Really the only significant difference in their evidence is the number of ballot papers they say they were given to complete. It could be the truth, it could be collusion on a story to tell. The onus remains on the Petitioner to prove the ground beyond reasonable doubt. The Petitioner's submissions do not draw my attention to any reason why I should prefer the evidence of Joe Kop over the evidence of Jack Kirr.

100. In this ground and in respect of Pura 3 the witnesses say the helicopter came at 10 AM. And then later in the afternoon to pick up the Pura 2 box. In Pura 2 Jeffrey Mari says the helicopter came 3 times, first to pick up the other 2 boxes, then it came after polling commenced at 2:30 PM. And then back again at 5 PM.

101. My conclusion is that the Petitioner's evidence does not establish the ground to the required standard.

102. Jeffrey Mairi, councillor for Pura 1, 2 & 3 said polling for Pura 2 started on the 4th of July 2007 in the absence of the Presiding Officer Pastor Timothy. The Assistant Presiding Officer commence polling at 2:30 p.m.. There was no proper polling. He signed batches of 50 or so ballot papers and gave them to supporters of different candidates to complete and 200 votes were signed, in favour of the First Respondent. The Police helicopter picked the ballot box up at 5 p.m., back to Kandep.

103. Pastor John Timothy said he was appointed Presiding Officer for Pura 2, he waited all day at Kandep on the 3rd of July 2007 to be dropped off at the polling place and went home about 9 p.m. to get warm. He was not picked up that night and the following morning he found out that the vehicle went without him. He retains some of the polling material such as the sex tally sheets, presiding offices returned and posters.

104. Joel Manas, scrutineer for Don Polye at Mamodai Pura 2 said the boxes arrived at 10 PM and were kept in Pastor James Salip's house overnight. The voters were assembled at 8 AM but the presiding officer pastor John Timothy was not there and the assistant presiding officer pastor James Salip commenced polling at 10 AM. The Electoral Commission helicopter arrived at 3 PM but they had not finished voting and it returned between 4 and 5 PM and brought the box and assistant presiding officer to Kandep.

105. Pastor James Salip, from Mamodai, was Assistant Presiding Officer at Pura 2 (Mamodai) in the 2007 elections. He was at the Council Chambers at Kandep from 7 AM to 8 PM on 3 July 2007 waiting for the security personnel to return so that they could take their box out. He saw Pastor John Timothy and Titus Kakipae there. In the afternoon pastor John Timothy, who is his brother-in-law, told him that he was feeling ill and would go to his house. They should collect him when the security personnel returned. When he left Titus Kakipae went with him. Just before 8 PM Pastor John Timothy sent one of his female relatives with a message that he was feeling worse, they should go ahead with the box and he would come tomorrow with the other polling materials. None of this was put to Pastor Timothy. About that time the security personnel returned, the boxes were loaded and they left the station. They arrived at Pura 2 about 10 PM and he took his box and went straight to his house. The other polling officials with the boxes for Pura 1 and Pura 3 went on towards those places on foot. About an hour later they came back and put the boxes in his house and stayed there for the night. The next morning voters started assembling between 6 AM and 7 AM and about 8:45 AM they were getting frustrated with the delay in commencing of polling, caused by the nonappearance of Pastor John Timothy. Pastor James Salip went to Kandep in a brother's vehicle, looked for Pastor John Timothy at his house but the house was locked (not put to Pastor Timothy). He also looked for him at the market and the shops with no success. He saw Naipet Keae, the District Returning Officer who issued him with further tally sheets, common role and other materials and he returned to Pura 2 and commenced polling at about 11:30 AM finishing at 4 PM.

106. The Kalenge Bridge was not destroyed when he went to and from Kandep. He did not see Pastor Timothy on the road. The helicopter, which had come at 3 PM when he was not finished polling, came back at 4 PM and took him and the box to Kandep. He was at the Counting Centre when the box was counted. Reuben Sei, scrutineer for the First Respondent, objected to the box being counted on the basis that Pura 1 was really Pura 3 and Pura 2 was really Pura 1. However his confusion was explained to him and counting proceeded.

107. Joel Manas said polling started at 10 AM, but could have been 10 or 11 he did not have a watch, the acting presiding officer pastor James Salip said polling started about 11:30 AM and Jeffrey Mairi, for the Petitioner, said polling started at 2:30 PM.

In oral evidence Jeffrey Mairi said that marking of the ballot papers commenced about 2 PM and finished at 5 PM. As I have said elsewhere, where people do not have access to a watch, wide variations in times can be expected, especially when daily events in their lives are not regulated by time; and it is not surprising that witnesses have given times 2 hours different on either side of the time given by the acting presiding officer.

108. I note that Jeffrey Mairi is the only witness in respect of Pura 1, 2 and 3 who suggests that the helicopter came 3 times to Pura, once to pick up the other 2 boxes, then to check on Pura 2 about 3 o'clock and again at 5 o'clock.

109. On Jeffrey Mairi's timing it took 3 hours to unlawfully mark less than 400 ballot papers. He said this was the case because only pastor James Salip was initially the ballot papers. Joel Manas suggested that it would take 30 to 40 minutes. I just do not consider that it would take anything like 3 hours to initial and mark less than 400 ballot papers when the polling official is initially the ballot papers and 4 or 5 others are assisting with the marking. If the polling took from 2 until 5 PM as Mister Mairi says or 1230 to 4 PM as Pastor James Salip says, to my mind that timing is far more consistent with proper polling then with ballot stuffing.

110. I am therefore not satisfied that this ground has been made out to the required standard.

111. Max Mongal said voting for Pura 2 started early in the morning of the 4th of July 2007 when no one was awake. He said Pura 2 was Kolopen (Kolopen is Kolopen but sometimes referred to as Pura 3). He also said that there was "block" voting by supporters. He said he was given 102 ballot papers to complete for the Kandep open seat. He said 393 ballot papers were signed in for the First Respondent and roughly 36 for other candidates. Polling was complete by 10 a.m.. About that time a helicopter landed and picked up the boxes for Pura 1 & 2 (Kolopen)!, it came back late in the afternoon to pick up the box for Pura 3.

112. Joseph Salip from Pura 2, scrutineer for Don Polye at Pura 3 said 2 vehicles brought the boxes on the night of 3/7/07. They were prevented from going to Pura 3 by vehicle by a broken bridge quite near Pastor Salip’s house. All 3 boxes were taken to Pastor Salip's house. Joseph then went home, what happened after that he doesn’t know. The following day at Pura 3 there was proper polling from the common roll. As scrutineer he saw & heard how voters polled.

113. Balo Kuringi from Laiagam, elementary school coordinator for the district, said that he was the Presiding Officer for Pura 3 in the 2007 elections. He and his team (clarified in oral evidence as only himself, his team members already being in place) and the ballot box left Kandep about 730 to 8:30 PM on the 3 July 2007 on a white Toyota 10 seater belonging to Pastor Buka Kep escorted by 2 other vehicles (in context he apparently meant 2 vehicles in total) and arrived at Pura 2 (Mamodai) between 10:30 PM and 11 PM. Because of poor road conditions to Pura 3 the officials for Pura 1 and Pura 3 with their boxes walked with the assistance of local youths. He and his polling officials spent the night between Pura 2 and Pura 3 at the house of Mister Isara (in the oral evidence he said only he slept at Mister Isara's house, 2 of his officials left him and with the box and went to Pastor James Salip's house, the other 2 were not there until the morning). Mister Isara's house is very close to Pastor James Salip's house (5 m). The box was at Pastor James Salip's house with the boxes for Pura 1 and 2 and their Presiding Officers. About 8 to 8:30 AM on 4 July 2007 polling started and ended peacefully about 2-2:30 PM. 540 voted, one ballot paper was spoilt. He returned with the box to Kandep station on the hired helicopter at about 3 PM. He left the box in the hands of the Returning Officer. He was appointed a permanent counting official for the Counting Centre. They brought all of the boxes to the Counting Centre on the 9 July 2007. He was there every day from the 11th to the 16 July 2007. He was recording the tally sheet in the Counting Centre and he does not believe that the headings to the columns in the tally sheet for Pura 2 and Pura 3 were changed although the Court put to him that they appear to have been changed. He said the allegations by Max Mongal, Jeffrey Murry and and Joe Kop are not true.

114. I note that I have already referred to the similarity in pattern between the evidence of Max Mongal and the evidence of Joe Kop. I find a little curious that someone would select a figure of 102 ballot papers as the appropriate number to give to a supporter in Block voting, as voting papers were issued in books of 50 or 100. I note also that in similarity with Joe Kop for Sangin, this witness says that he filled in the ballot papers given to him and placed them in the box, and made no complaint when the Returning Officer and security personnel arrived to pick up the box.

115. It is submitted for the Petitioner that the evidence of Max Mongal must be right because it is consistent with the Form 66 result of the count. While that is so, it is also a fact that the results of the election had been publicly known for 2 months before the affidavits were prepared. Max Mongal confirms he heard the results of the election.

116. I have given some consideration to the discrepancy between Mister Balo Kuringi's affidavit and his oral evidence in respect of where he and the box for Kolopen spent the night. I have decided that this is not significant because the fact that the box spent the night in Kolopen is not an issue in dispute and it can easily be explained by the errors that creep into the mammoth task which preparation for this case has been.

117. I am not convinced to my entire satisfaction that the allegations of the Petitioner have been made out. The only point which the Petitioner makes to say that I should believe this witness over the Respondents witnesses is the result of the election. But as I have said, the results were known well before the evidence was prepared. And consequently the fact that the evidence fits with the result of the election is as consistent with fabrication based on the result as it is with truth. I cannot be satisfied to the requisite degree that this ground is proven.

118. Peter Frank said that at Winja 1 voting commenced about 2:30 p.m. on the 3rd of July 2007. After about nine people had voted there was a disagreement which turned into a fight. The polling officials grabbed the box and papers and carried them away. Peter Frank said that he tried to get the box back, he removed the inner and outer sealed tags and took four ballot papers and ran away. He said he saw the polling officials carrying the ballot box with the rest of the ballot papers in the direction of Konait. He said no polling took place at Akulya (Winja 1).

119. Smith Lambert said that on his way back from Kaup village where he had been investigating what was happening to the ballot papers for Winja 3 he saw the polling officials for Winja 1 signing and marking ballot papers at Konait near Lamb Creek surrounded by Konait boys.

120. James Kay from Winja 1, and SDA church elder who resigned to be scrutineer for Don Polye at the election, said he was scrutineer for Don Polye at Winja 1. He took a record of the number of votes cast for Don Polye by listening to the illiterate voters announcing for whom they wished to cast their vote. The box arrived Winja 1 at 11:30 a.m.; there was normal polling commencing 1:30 p.m. on 3/7/07 finishing 6:30.pm. During the polling some drunken people came in and disturbed the polling and one took the outer tag from the presiding officer’s table and ran. The leaders calmed the people down, voting continued and was completed successfully. The box was then carried to Aitenges through a shortcut. The box over-nighted at a Councillor’s house with the box from Winja 3. Both boxes were picked up by security forces on 14/7/07, about 9:30 a.m.

121. Bruce Towe from Winja, school teacher at Winja Primary School said he was appointed as Presiding Officer for Winja 1. He arrived from Kandep at the polling place on a Dyna truck between 11 and 12 noon. First the Winja 2 box was dropped then 3, then 1. 2 vehicles came to Winja 1 & 3, a 10 seater with 3 policeman and an open backed LandCruiser with defence Force personnel. There were 2 policemen with his team. Polling started around 12:45 PM. During the polling Peter Frank was drunk, he was hanging around and he threatened the polling team with a bush knife and grabbed the inner seal tag from the box and ran away. Bruce Towe told the people it was a small thing and replaced the inner take with the outer tag. Otherwise polling was uneventful. None of the things that Peter Frank and Smith Lambert claimed actually happened. There was no fight or commotion and the box and papers were not taken away and marked at Kunait. After the polling the outer lid of the box was sealed with the lock provided by the Electoral Commission. Then the polling team and some members of the community took a shortcut for 5 to 10 minutes on a track that leads to the main road. Before reaching the main road the team from Winja 3 joined them. They walk to the house of the councillor near the road to Lagalap 2 and spent the night there with the 2 boxes. The security forces came around between 9 and 10 AM to collect the boxes and presiding officers. He presented the box at the Counting Centre on 12 July 2007. Peter Frank said nothing although he was there. Reuben Sei objected. He said that the box for Winja 1 and 3 have been hijacked. Bruce Towe explained that the box was clean. The District returning Officer said that Reuben Sei’s objection had no weight and the box was counted. The box was not hijacked and marked by the First Respondent's supporters, that is all lies.

122. The Petitioner submits the Peter Frank's evidence is consistent with what is shown on the form 66 A exhibit P3 that only 460 votes were present at the counting centre. It is suggested that the form 58 Presiding Offices Returned was changed from 464 to 460 to make it consistent with the count. Further, it is submitted that the fact that the form 58 is signed and dated by the Returning Officer on 3 July when it could not have been returned to the Returning officer before 4 July, is further evidence of fabrication of the document.

123. There was a good deal of inconsistency in the evidence given by Peter Frank, although he was not alone in that regard. He claimed to be from Winja 1 and was upset that he did not get the chance to vote; but it was demonstrated to him in cross-examination that in his other name, Peter Elijah, he was enrolled in Pulya Magere or Supi 3, which he agreed is many kilometres from Winja 1. He agreed that he could not find his name on the common role for Winja 1. However, he maintained that his proper polling place was Winja 1. In so far as Peter Frank purported to claim that he was not permitted to vote, the evidence cannot be admitted because he did not satisfy the court that he had enrolled to vote at Winja 1: organic law s219(b) .

124. He claimed there was a person named Janet Peter on the electoral roll for Winja 1, but there is only a Jenny Peter, he said Jenny and Janet were different persons. He also insisted that on the roll which was used the name Janet Peter was there. The Presiding Officer said there was no such name on the roll. That name did not appear on the roll produced to the court. Peter Frank said that Lucy Simil replaced Janet Peter as a voter. But in fact Lucy Simil is a registered voter for Winja 1 and entitled to vote. In his affidavit he said a commotion started when Lucy Simil replaced Janet Peter. In re-examination he said the conflict started when Lucy Simil, who had already voted, was called to double vote in the name of Janet Peter.

125. Peter Frank said in his affidavit that after 9 people voted the trouble started, in his oral evidence he said 30 or 40 had voted. However, the common roll is arranged in alphabetical order. Neither the name Jenny Peter Northern name Lucy Simil would be called 9th, 30th or 40th. He said when the polling team tried to take the box away he grabbed the inner and outer tags. In cross-examination he said he pulled the tag from the box. However, in the course of voting only the inner tag would be on the box. The Presiding officer gave evidence that Peter Frank only took the inner tag, the outer tag was in his sight in front of him. This is contradicted by James Kay for the First Respondent who said several times that the outer tag was on the table and Peter Frank took it. He was insistent that the inner tag was still there. He did not see Peter Frank take any ballot papers. Unexpected events which happen on the sudden are bound to create discrepancies in recollection. I do not consider that the differences are significant. What might be significant is if the box had no inner tag at the counting centre, as the Petition pleads, but in respect of which no evidence was given.

126. Peter Frank said in his affidavit that the boxes for Winja 1 and 3 were taken up to the polling stations by a vehicle belonging to the First Respondent; in cross-examination he agreed the vehicle was not property of the First Respondent. He agreed his evidence that the ballot papers were marked at Kunait by supporters of the First Respondent was hearsay. He did not see it.

127. The First Respondent submits that Peter Frank lied in saying he went to the counting centre on 14 July 2007 to dispute the Winja box, because the Winja boxes were counted on the 12 July 2007. What Peter Frank said was he went to the counting centre on Thursday the 14th July, Thursday was the 12th. So I think it is fairly obvious that he just got the date wrong.

128. James Kay did not agree with the evidence of Denson Karre, Presiding Officer for Winja 3, that they met up on the track while carrying their respective boxes to the road after voting was complete. James Kay said that he went first and was already in the councillor's house and Denson Karre came later. Bruce Towe, Presiding Officer for Winja 1 said they did meet up on a track with the Winja 3 team.

129. While there are miscellaneous discrepancies in the evidence of all witnesses, what stands out is that Peter Frank was not a registered voter at Winja 1, yet he went there and interfered with the electoral process by removing a tag from the ballot box. I think his credibility is severely damaged by those facts. What was he doing there at Winja 1 on the first day of polling when his polling place was kilometres away at Supi 3? He did not deny his association with Supi 3 but maintained, against the evidence of the electoral roll, that he was a voter at Winja 1. That to my mind makes his evidence suspicious and lacking in credibility.

130. Smith Lambin said in his affidavit that he comes from Winja 3. Under cross-examination he conceded that neither he is nor his family's names were on the roll for Winja 3. However he said his father is from the Supi 3 area but his mother's village is Winja 3 and had spent his whole life there. I find it curious that a politically interested university graduate had not applied to get his name on to the electoral roll to the area which he is residentially qualified. He said late in the afternoon of 3 July 2007 he went to make a complaint to the police because he was an eyewitness to the fact that the ballot papers for Winja 1 were filled in by electoral officials and supporters of the First Respondent.

131. It seems to me therefore very curious at the least that the letter which he co-authored, typed and signed directed to the Kandep District Returning Officer dated the 11 July 2007, the first day of counting, says "Winja 1, 2 & 3 These boxes were hijacked and filled in by Mr Polye's supportes (sic). Polyes Personal Police Escort took these boxes away to his Rest House, at Konait and signed the papers depriving the rights of the eligible voters". Yet subsequent in cross-examination he said only Winja 1 was taken to Konait. None of his evidence mentions anything about the box being transported by the First Respondent’s police escort vehicle, nor does he mention the First Respondent's rest house. He is very specific about the place at which he saw the marking being undertaken. He explained some of the discrepancy by being rushed. But how could anybody having seen an event 8 days earlier, which so concerned them that they were going to report it immediately to the police, type & sign such a different version a little over a week later? The conclusion I reach, being as kind as I can, is that Mister Lambin's evidence is unreliable and I can place no weight on.

132. As to the discrepancies between the Respondents witnesses concerning the taking of ballot papers and tags, when something unexpected happens, on the sudden, it is not surprising that witnesses of the event will give different versions according to their understanding and recollection. Nor do I think the discrepancy between James Kay, Bruce Towe and Denson Karre significant in relation to whether or not they met up on the bush track on their way to the highway. With the night coming on and people spread out along a track, particularly if there is a good many people, observation at one end of the line could be completely different from observation at the other end. So that I think it is quite possible that both versions are honest accounts of what those witnesses observed, without the witnesses being in any way intentionally dishonest.

133. The Petitioner submitted that there were serious inconsistencies in the evidence of Bruce Towe firstly because he appeared to say that Janet Peter was a made up name and then said that her name was on the common roll. We know from production of the common roll that Jenny Peter is on the common roll and Janet Peter is not. Therefore Bruce Towe could only have mentioned that Jenny Peter is on the common roll. Then he was asked if anybody shouted out their preference and he answered "no"; later that illiterate voters "called out names". I think that is simply a matter of interpretation. "Shout" connotes a very loud sound, "call out" is more ambiguous as to volume. His evidence was that he could not hear what the voter was saying to the Assistant Presiding Officer.

134. My conclusion is that I cannot be satisfied to the required standard that this ground has been proven because the evidence of Peter Frank and Smith Lambin is lacking in weight.

a) electors names were not called alphabetically during the election, more supporters of the First Respondent were called;

b) when an elector came to vote five extra ballot papers were completed and stuffed in the box by the officials;

c) by marking the Regional ballot paper when the elector thought the Open electorate ballot paper was being marked, he fooled the elector by marking 16 for Peter Ipatas when the elector thought the Assistant Presiding Officer was marking 16 for the Petitioner;

d) after 100 electors had voted polling ceased and the officials marked the remaining 534 ballot papers for the First Respondent and stuffed the box.

136. Depo Emenol and Tumulya Pondo, a former councillor, both gave evidence that there was improper polling at Winja 2, 4 votes were stuffed into the box for every vote cast plus an additional 120 votes were stuffed into the box.

137. Kepas Tavi, community leader from Winja said the polling started at Wasa (Winja 2) at 11:48 a.m. where he was gatekeeper. There was only a small argument prior to polling when one person said the box should be taken to Magap. There was proper voting.

138. Winch William, employed as a teacher at the Winja Primary school, said he was Presiding Officer for Winja 2 in the 2007 elections. The polling went smoothly except for an argument outside the polling booth that he heard but did not see. It did not interrupt polling. 2 policemen were in the polling booth. At the conclusion of polling when everyone present on the common role had voted, there were 7 ballot papers left and 11 people whose names were not on the common roll had not voted. As he was trained to do he created a supplementary list and allowed 7 of the 11 to vote. At Kandep on his return he registered the box with Joseph Yangau. He presented the box at the Counting Centre on 12 July 2007. No one raised any objection to the box being counted. He recalls Reuben Sei objecting to the counting of the boxes for Winja 1 and 3, which was overruled by the District Returning Officer when Reuben Sei produced no evidence. He also recalls the Presiding Officers for Wert 1 and 2 objecting to the counting of their boxes on the basis that there had been no polling, and those boxes were set aside.

139. No preliminary objection was taken to the form of this ground. It is obvious that there is an internal inconsistency in the allegation. If indeed for every voter 5 extra ballot papers were stuffed in the box, after 100 voters there would be 600 ballots in the box, and there would be insufficient ballot papers left over to stuff an additional 534, there would only be 34 ballot papers left.

140. This numerical inconsistency carried forward into the affidavit of Tumulya Pondo where he says at paragraph 6 after 100 people voted the 629 ballot papers in the box were already signed and marked. However in the next paragraph he goes on to say "I got up and held on to the last 120 ballot papers left".

141. Tumulya Pondo was a little prevaricating in cross-examination and I had to direct him to keep his answers to the point and listen to the questions. I do not draw any inference from this; some people can never keep to the point, no matter how honest. The evidence in his affidavit was given in the same broad general terms as the Petition. In chief in oral evidence he said after 500 ballot papers had been put in the box he took the remaining 120. He was precise in his affidavit that the First Respondent had received 534 votes, but when asked in cross-examination he said he had been told it was between 500 and 600. When it was suggested that someone else had given him that figure he said " this figure was not given to me this is the figure I counted when the papers were being counted and put into the box". I find it very difficult to accept that as a statement of truth. Just as a matter of logic and common sense I cannot accept that a scrutineer watching, as he says, both the Presiding Officer and the Assistant Presiding officer marking ballot papers 5 at a time could keep track of total numbers with any precision. When it was put to him that the Presiding Officer Winj William would say proper voting occurred, he was not prepared to say that was a lie, he simply said "he will tell his story I am telling mine". Although he was quite prepared to say that if Toale Lasep said polling was conducted according to law he would be lying. He had been a councillor for 27 years and I felt that some of his answers in cross-examination may have been framed to protect his dignity, but there was no real indication that he was being dishonest.

142. Turning to the evidence of Winj William, the Presiding officer, it is also not free of difficulties. The principal ones are firstly that his affidavit and the form 58 return originally referred to the total number of ballot papers issued as 634. That number agrees with the the records of Reuben Sei and Matthew Lale taken at the Distribution Centre at Wabag. The form 58 has been changed rather obviously and the figure 634 over written with 636 in 5 different places. At the commencement of his evidence Winj William changed the figure 634 appearing in his affidavit to 636. In his report attached to the form 58 dated 3 July 2007 Winj William said that the total number of votes cast were 634. The number of ballot papers in the box when it was counted at the counting centre was 636. It seems rather remarkable to me that the Presiding Officer should make a mistake on the form 58 and correct it 5 times in different places on the form, omit to correct his report then make the same mistake on his affidavit prepared some months later requiring a further correction. I find that these alterations were made after the event, after the results of the count were published and after it was realised that the discrepancy might point to a more sinister problem than 2 extra votes.

143. The other difficulty is the time for commencement of the voting. Tumulya Pondo said voting commenced about 2:15 PM. It was not suggested to him that he was guessing about that time or had no means of telling what time it was. Winch William made a written report to the Returning Officer attached to his form 58 return in which he said that voting commenced about 2:15 PM. In his affidavit evidence and oral evidence he said that voting commenced at 12:15 PM and in the written report he had simply missed writing the figure "1" in front of 2:15 PM in his rush to complete the report before lodging it that evening. At the risk of being boring I say again that my view is that when the evidence for all parties coincides that is where the truth lies. So I find that voting did in fact commenced at 2:15 PM as Winj William originally deposed and reported. Simil Wain, Presiding Officer for Winja 3 said polling started at Winja 3 at 2pm so there is some correlation with Winja 2, although because the box had to be walked to Winja 3 it would not have been unreasonable for Winja 2 to have started earlier.

144. No one called evidence on average voting times and so I do not know if over 600 people could vote in the 4 1/4 hours available according to Winj William or the 2 3/4 hours available according to Tumulya Pondo, although I think the latter highly unlikely. Even at one minute per voter it would take 6 hours, but there are variables such as one voter being in the private booth while another voter is being assisted to vote, making a parallel process. However I have not been equipped with the information and I will not hazard a guess.

145. If as I find, Winj William was not honest about the time of the commencement of voting, why was he being dishonest? The inference I draw is that he concluded that it would not be believable that over 600 people voted in the period 2:15 to 6:10 PM. And he drew that conclusion because in fact 600 people did not vote in that time.

146. His corroborator, Kepas Tavi, extended the voting period further by saying it commenced at 11:50 AM.

147. I conclude that the evidence for the Respondents has far more concrete problems than the evidence for the Petitioner and I do not believe Winj William or Kepas Tavi. I prefer the evidence for the Petitioner and I consequently find the facts of this ground have been made out to the required degree of complete satisfaction of the court. And I find that the facts establish illegal activities in the terms of section 110 of the Criminal Code and section 190 of the organic law.

148. Paragraph B1(h) of the petition alleges that the polling officials and others took the ballot box and papers for Winja 3 to Kaup where the ballot papers were illegally marked with first preferences for the First Respondent. The First Respondent polled all 487 first preference votes at the count.

149. Smith Lambin said on the 3rd of July 2007 about 1 p.m. the polling officials and ballot boxes for Winja 1, 2 and 3 were dropped off at Winja. Immediately a white open backed land cruiser and a 10 seater belonging to the First Respondent took the ballot boxes and papers and officials to Winja 1 and 3. There was no polling at Kaep which is the normal place for Winja 3. The boxes were taken over to Kaup. He and others followed the boxes and found armed men guarding the polling officials who were signing the ballot papers without calling the voters names from the common roll. He saw that the officials were signing and marking the first preference votes for the First Respondent

150. Eddie Dickson of Kaep village said the ballot boxes for Winja 1 and 3 reached the main field at Kaep aid post about 1:15 p.m. on Tuesday the 3rd of July 2007. The polling officials and some villagers took the ballot box and went over to Kaup. About 2 p.m. he reached the area where the polling officials were at Kaup, with Smith Lambin. Under heavy guard by armed men the polling officials were marking the ballot papers without calling voters names to come forward and cast their votes. He said there was no voting at Winja 3.

151. Moses Kii Menan former councillor and community leaders said that he Was at Winja 3 3/7/07. Voting started between 12-1 p.m. there were no major disruptions. Polling went smoothly and closed at 6:30 p.m.. The box was carried to Aitenges through a bush shortcut arriving at a Councillor’s house after the Winja 1 box. Denson Karre, a student, who was scrutineer for Don Pom Polye at Winja 3, gave similar evidence. He said the polling started at 1:50 PM and end at about 6:30 PM. The box was taken by a short cut to the main highway where boxes for Winja 1 & 3 were kept safely until the morning when they were picked up by a security personnel vehicle.

152. Simil Wain, primary school teacher at Winja from Winja 1, said he was appointed Presiding Officer for Winja 3, Kaup. He was transported to the polling place by a Mitsubishi Dyna with a total of 8 boxes with the presiding officers and assistant presiding officers. He arrived at Winja 2 at approximately 11 AM. There were 4 vehicles that arrived at Winja 2, the Mitsubishi truck, 2 LandCruiser open backed trucks and a 10 seater. The Mitsubishi turned back; the 2 Land Cruisers and the 10 seater drove on to Winja 1 with the boxes for Winja 1 & 3. There were defence Force and police personnel in the vehicles with the 2 boxes with the 2 presiding officers and other team members. He arrived at Winja 1 about noon. Then the team walked to Winja 3 with the box. He prepared for polling and started polling about 2 PM. During the polling Smith Lambin, Edmund Yaka and Eddie Dickson and some others he cannot remember disturbed the polling. They said polling should be at Kaip. They wanted to take the box and papers to Kaip. They did not have any bush knives. The village leaders settled them down and those who were on the common role voted. Polling ceased around 6 PM. They went with the box to Winja 1 and found that the polling team had left. So they walked onto Lagalap 2 with the team and some voters from Winja 3. The ballot papers were not marked by him for the First Respondent under security from armed supporters of the First Respondent. There was proper polling. When the box was taken to Kandep he handed it and his report over to Joseph Yangau who was then in charge of registration. It was then around 10 PM. At the counting centre at Wabag on 12 July 2007 the Winja 2 box was not disputed. Rubin Sei disputed the Winja 1 and 3 boxes. The District Returning Officer asked Rubin Sei for documentation for his dispute. He did not produce it. The District Returning Officer said there was no evidence therefore the box will be counted.

153. Smith Lambin's credibility continues to suffer from the dual factors of his claim to be a resident of Winja when his family are registered to vote in Supi 3; and the factual conflict between his evidence concerning the illegal marking of ballot papers and the letter he co-authored and which he typed on the first day of polling which said:

"Winja 1,2 & 3 "these boxes were hijacked and filled in by Mr Polye 's supporters. Polye 's Personal Police Escort took these boxes away to his Rest House, at Konait & signed the papers depriving the rights of the eligible voters. Kaup/Akulya weapons were used to threaten voters and Don Polye was physically present and ordered the gun men to take the box to Konait & signed (sic) the papers in favour of Polye".

154. There was no evidence given of the allegations contained in that letter apart from the box for Winja 1 having been taken to Konait near Lamb Creek for signing of the ballot papers and that the First Respondent’s vehicle and the First Respondent were at Winja 3 briefly. Typing errors and rushing are not adequate explanations of how an eyewitness could get the facts to which he later deposed in such a different form. I do not consider that I can rely on his evidence, except to the extent that it is corroborated by witnesses for the Respondents.

155. Eddie Dickson laboured under the mistaken view that Kaep was the proper polling place for Winja 3 when in fact the designated polling place was Kaup. However, he established that he is enrolled to vote at Winja 3 and he said that he did not vote nor did his family.

156. Denson Karre' s evidence that Smith Lambin and Eddie Dickson were drunk is refuted by the Presiding officer Simil Wain who said they were not drunk nor disorderly and that Eddie Dickson voted. Denson Karre called himself a student but under cross-examination it was revealed that he withdrew from studies. I do not draw any adverse inference from this, everyone wants to maintain a little dignity and "student" sounds a lot better than unemployed dropout. However, I was very suspicious of his claim that he is the same person as Waro Imbuni, a name on the common roll. His evidence in support of the First Respondent that as scrutineer at the polling he could hear every voter calling loudly their first preference for the First Respondent, I found difficult to believe. Even more difficult to believe was the claim that he counted all of the voters as they voted and realised that the First Respondent had received 482 votes, 100% of the vote. This "calling loudly" claim was contradicted by the First Respondent's 2nd witness, Moses Kii Menan, who said that illiterate voters all had little children with them that went into the polling booth and assisted them with the voting. Simil Wain said that some shouted and some secretly voted. I am sure that is right. My assessment of Denson Karre is that he came to court to support his candidate and wanted to give evidence which would do that even if not entirely true or supplemented by facts which he did not see or hear. I do not consider that I can rely on his evidence.

157. The Petitioner submitted that there cannot be 2 or 3 types of voting, either the illiterate voters shouted or they voted secretly, therefore I should find that both witnesses are lying, that is Denson Karre and Moses Kii Menan. This submission does not stand up to any form of critical analysis. Commonsense and life experience suggests that what Simil Wain said is the more likely scenario in a large group of people, there will not be uniformity. Some people will vote secretly on their own, some will vote secretly with the assistance of a person of their choosing and some will vote with the assistance of polling officials. Of those some will make public for whom they are voting by speaking loudly (which is really a form of campaigning and should not be permitted) and others will not. I think it would be not a rational judgement for me to conclude that the 2 witnesses were lying because they gave evidence of different aspects of the methods people choose to use to vote.

158. The Petitioner also submitted that I should find that Simil Wain was lying because some aspects of his evidence contradict the evidence of the First Respondent's witnesses. Partly for that reason just mentioned in the previous paragraph, that his evidence differs in respect of the method of voting it has been submitted that there cannot be 3 different versions of how electors voted. In my view not only could there be, but there is likely to be. It is submitted that he was evasive. There were a number of "I cannot recall" answers during cross-examination, but they were not in response to questions relating to matters in respect of which one would expect the witness to have perfect recall a year after the elections.

159. It is submitted that Simil Wain should not be believed because his evidence contradicts the evidence of the First Respondent's 2 witnesses in respect of the behaviour and conduct of the Petitioner's supporters. Simil Wain said that there were drunken youth. He said Smith Lambin and Eddie Dickson, the Petitioner's witnesses, were not drunk. I do not think Denson Karre can be believed on this issue. That does not make Simil Wain's evidence untrue because it contradicts Denson Karre. Smith Lambin and Eddie Dickson said they were not drunk, Simil Wain said they were not drunk, I accept that they were not drunk. I accept Simil Wain's evidence on this point.

160. The Petitioner also submits that I should not believe Simil Wain because of the evidence he gave in respect of 3 ballot papers. There were 3 ballot papers left over because 3 of the polling officials were already on the roll. His evidence was that he received training to make a supplementary list if there were persons who were not on the roll but qualified to vote in that electorate. He consulted the leaders and allowed 3 persons to vote with those left over ballot papers. There was no evidence to the contrary. I do not find this to be a reason that I should disbelieve Mister Simil Wain's evidence.

161. I concluded that the case of the Petitioner and the case of the respondents are equally balanced and consequently the Petitioner has not discharged the onus of proof on him in respect of this ground.

162. Paragraph B1(i) of the Petition alleges that the polling officials took the box into the bush and marked all of the ballot papers with first preference votes for the First Respondent, and stuffed them into the box; with the exception of 30 ballot papers a supporter of the Petitioner managed to grab, mark for the Petitioner and stuff into the box. At the count of the First Respondent polled 409 first preference votes and other candidates 34. The box number was ENG 037 and the total number of issued ballot papers 443.

164. Paragraph B2(a) of the petition alleges that box ENG 0050 with 385 ballot papers were dropped off at the Lai Bridge. The polling officials and others then carried the box and papers to Wapmandak where all of the ballot papers first preferences were illegally marked for the First Respondent and stuffed in the box. The First Respondent polled 384 first preferences. No other candidate polled any first preference votes.

165. Gae Kareong witness for the Petitioner was under the strong impression that the proper polling place for this area was Mugaip, whereas the gazetted polling place was Wasa. A lot of his answers to questions in cross-examination were not directly responsive to the questions. The following are examples:

166. Question: "From where you were could you see what was happening in the Mugaip house man?" Answer: It is all my people doing it, I feared for my life, I went away". And another example "question: did you know Wasa was the official polling place? Answer: the polling places usually fenced in and proper voting conducted at this one it was filled in the house man. Question did you know the official polling place was Wasa not Mugaip? Answer: If the voting had been conducted where it was supposed to be I would have voted".

167. Mr Kareong was not a man to be put off message by confining his answers strictly to the question being asked. However he said he was a voter for the area, which was not challenged, and that he could not vote because the supporters for the First Respondent prevented anyone from voting. There is therefore no explanation as to how his name could have been crossed off the roll as having voted, which it was, if this evidence is accepted.

168. The notable differences between his affidavit evidence and his oral evidence are that he said in his affidavit evidence that the ballot papers and box were taken to Waipmanduk and marked on the veranda of a house man, neither Waipmanduk nor a verandah were mentioned in his oral evidence; except in cross examination when he said that Waipmanduk is his houseman.

169. The 2nd Respondent submits that there was also some difficulty with pinning Gae Kareong down on the times that he was actually at Wasa. He said he was in Kandep about 4 o'clock reporting to the Returning Officer and then going to the hospital. He said he was in Wasa about 3 o'clock. While they were putting the votes in he was scared and went to report to the DRO. So he was probably in Wasa for about 40 minutes. I do not see any problem with that version of events. The 2nd respondent suggests that on the evidence Gai Kareong could not have been in Wasa at 3 o'clock. This is based on the suggestion that the witness said he did not follow the polling team but went to the hospital. In my view this is not the effect of the evidence. Shortly after the passage relied upon by the 2nd Respondent the witness was asked "how do you know Peke Lambain was Presiding officer?" And he answered "he is from the same place and I saw him filling the box with my own eyes". There is no statement that the witness did not follow the box.

170. The First Respondent submits Kenneth Andrew said he saw a polling booth, contradicting Gae Kareong. The First Respondent submits that Gae Kareong cannot be believed because of this contradiction. What Kenneth Andrew said in his affidavit was:

"I saw the Sawa No. 2 (Wasa) and Imali No. 2 boxes in the same area and only a few people armed with Bush knives, home-made guns were guarding the polling booth. When I approached the polling booth, Mr Solomon Tutu Lake, Peke Lambin, Salap, Aum Kiakage, Ala, Philip Yaia and several people stopped me and said they were waiting for people to go and vote. They told me that out of the 300 registered voters; they would put 150 votes for me and distribute the rest among other candidates. They also told me that they had no say on the other box that belonged to Imali No. 2..."

171. In cross-examination Mr Andrew said that he arrived at Wasa at 4:30 PM. He saw no polling, the people there told him they (Solomon Lake) would put 180 (later mentioned 150) votes for him and distribute the others to other candidates. There were not many people there, no adults and women, only young armed men.

172. So I agree with the submissions for the First Respondent that there is a mention of a polling booth, but in the context of Mister Andrew 's evidence it is hardly a ringing endorsement of proper polling. In fact quite the opposite. However a close examination of my notes of evidence of Gae Kareong I do not find a direct statement of there being no polling booth. He said what usually happens is that the polling officials are fenced in and voting takes place, but in this case there was no fence and the ballot papers were filled in at the house man by the polling team. While it was being filled in he fled for his life.

173. There does however remain another possible conflict between the evidence of Gae Kareong and the evidence of Kenneth Andrew. Kenneth Andrew said at 4:30 the box was on the field, Gae Kareong said that between 3 o'clock and when he left, possibly around 3:45 PM, the box was in the houseman. These versions could still be consistent if in fact, when Kenneth Andrew saw the box at 4:30 PM instead of waiting for people to come to vote, completion of the stuffing of the box had occurred and the people guarding it were simply waiting for it to be collected to go back to Kandep.

174. Solomon Tutu Lake for the First Respondent could offer no explanation as to why there were no first preference votes for Mister Yaka, a candidate from Wasa nor why the Petitioner and Kenneth Andrew scored no first preference votes when their mothers came from Wasa. There is no obligation on the witness to know why the voters allegedly voted as found at the count.

175. It is though troubling that the First Respondent received 100% of the vote. Logic and common sense tells me that it is simply not human nature for a group consisting of hundreds of people to be so completely unified on their view in a secret ballot. And I think that would apply even in the Kandep electorate where the general evidence suggests tribal affiliations are very strong and there might be greater unity as to the suitable candidate to receive the first preference vote than otherwise might be the case. Counsel for the First Respondent has submitted that there are many reasons why 100% of the first preference vote might go to a single candidate; unfortunately he has not put forward any examples for my consideration.

176. Solomon Tutu Lake in his affidavit evidence said the polling finished at 5:10 PM having commenced at 11:48 AM. This contrasts with Kenneth Andrew saying he saw the box and no voting taking place at 4:30 PM with very few people around. Although parts of Mister Kenneth Andrew's evidence were self-serving and in relation to other matters I do not entirely accept his evidence, I find no reason to doubt that he saw the Wasa box being guarded by armed youth about 4:30 PM, with very few people about, no older men and no women. This to my mind is completely inconsistent with active polling finishing shortly after 5 PM. For those reasons I am not prepared to accept the version of events put forward by Solomon Tutu Lake. Notwithstanding the difficulties in Mister Gae Kareong’s evidence in my view his version of events is much more in keeping with logic and common sense than the version of Mister Lake.

177. The First Respondent's submission that Gae Kareong should have been able to see Kenneth Andrew at Wasa at 4 PM on the 3 July 2007 is wrong in 2 respects; firstly Gae Kareong said that he was in Kandep at 4 PM and secondly Kenneth Andrew said that he did not reach Wasa until 4:30 PM. So it is clear on their evidence that they were not at Wasa at the same time.

178. I find that there was no polling at Wasa, that the Presiding Officer and other polling officials with the assistance of armed village youth filled in the ballot papers and stuffed the box.

179. The Petitioner submitted that the facts of the ground established an offence pursuant to Section 110 of the Criminal Code and Section 190 of the organic law. Both sections require the "person" to be identified. The Presiding Officer was the only person specifically identified by Gae Kareong. I find the Presiding Officer stuffed or was privy to the stuffing of the ballot box for Wasa and that this ground is proven beyond reasonable doubt. I find also that he committed an offence pursuant to s190 of the organic law.

180. Paragraphs B 2(b)(7) to (10) petitioner alleged that the armed supporters of the First Respondent prevented electors from voting and that they then marked 696 ballot papers of the 707 issued, with 5 missing, for the First Respondent. The First Respondent polled all 696 first preference votes.

181. Muli Tolao, an elector for Kokas 1 said that instead of the Kokas 1 box being left at the Kokas Mission Board, the usual polling place for Kokas 1, the boxes for both Kokas 1 and 2 were taken to Wapis at Don Polye's Malai Junction camp. When the voting commenced the polling station, containing the boxes and the polling officials for both voting places, was surrounded by armed supporters of the First Respondent. They only admitted to the area supporters of the First Respondent to vote. The presiding officer for Kokas 2 and the supporters of the First Respondent signed and completed the ballot papers. The voters did not vote.

182. Kupiaro Kembri from Wapis said The box for Kokas 2 was located just outside the fence of Don Polye's bush material house beside the field at Wapis. Yandalo Alenke, Las Paka and Pit were all at the box signing and marking the ballot papers for the First Respondent and filling the box. Kupiano Kembi asked to cast his vote and they said " you will cast your vote later" and continued to fill the ballot papers and put them in the box. One of James Tubin's supporters went at the back and realising that they had already filled the papers he grabbed hold of some of the completed ballot papers. Sepet Yakapo (or Lale Bus, it is not clear on the evidence) broke James Tubin's supporter's arms. Kupiano Kembi asked those marking the ballot papers "why are you doing this" and Sepet Yakapo swung an axe at him but he avoided it. He ran towards the road. James Naipe fired a home-made gun at him but he also managed to avoid that. The people who had gathered to vote escaped to their villagers. Kupiano Kembi escaped to Kandep running on foot. It was about 1:45 p.m. when he left Wapis. There at Kandep he saw Naipet Keae and Martin Lakari. He told them that there was a fight at Kokas 2 and that Don Polye's supporters were marking the ballot papers for Don Polye. They made no reply and walk off. Kupiano Kembi reported to Alfred Manase and then stayed at Kandep station as he was frightened of the people who had attempted to wound/kill him.

183. David Kiss, from Kokas, a leader in the village said there was proper voting at Kokas 1. The ballot box arrived from the station at 10:30 AM. The polling place was 30 m from witness’s house. Voting to Kokas 2 takes place at Wapis which is about 500 m away. Kokas 1 and Kokas 2 did not vote together. Kunaip voted at Kokas. 469 people voted at Kokas 1. Voting finished at 5 PM. He was told that Kokas 1 and Kokas 2 boxes went together to the station. The box was taken up to the junction.

184. Yandal Alenge from Sawi 1, employed as an elementary school teacher at Sawi community School, said he was Presiding Officer at Kokas 2 in the 2007 elections. He left Kandep station about 11:30 AM transported on a white Isuzu (in oral evidence arrived about 11:30 AM). There were 3 stops including Kokas 1 before he and his box were dropped and the vehicle went on to other polling stations in the Lai constituency. Kokas 1 and Kokas 2 are about 700 m apart and one is not visible from the other because of buildings and trees. Kokas 1 is a mission station. He conducted polling normally starting about midday, 700 cast votes, one was spoiled and 6 were unused. The polling team was 48 and the box was PNG 00 48. He was at the polling Centre on the 13 July 2007 when the box was counted. On the blackboard the polling station was written as Kokas 2 although on the tally sheet the polling stations are Kokas 1 and Kokas. He recollects on the blackboard the total for Kokas 2 was 700. He does not know why on the tally sheet that figure does not appear under Kokas or Kokas 1. Box 48 does not appear on the tally sheet.

185. The First Respondent submits that Muli Tolao said that the boxes for Kokas and Wapis (Kokas 2) were inside the yard for Don Polye before there was a fight whereas Kupiaro Kemb said the 2 boxes were outside the fence and only taken in after the fight. That is not entirely correct; it is true Kupiaro Kemb said the boxes were outside in the field right in front of the First Respondent's house when they first arrived but the boxes were later taken into the fenced area, the boxes were moved during the fight. It also has to be noted that in examination in chief Muli Tolao said that the boxes were at the corner of the field close to the First Respondent's house, they were 75 m from the First Respondent's house. In his affidavit Muli Tolao said "When the 2 ballot boxes and the ballot papers with the polling officials were inside the fenced area..." He is not saying that they were initially inside the fence. He said there was no fence when the boxes were in the field, the boxes were fenced in by men only. He does not say when the boxes moved from the field to inside the fence.

186. The first respondent submits that Muli Tolao said there was a gate to the fence around Don Polye 's yard whereas Kupiano Kemb said there was no gate, it was an open space. Muli Tolao did refer to a gate in his affidavit, what he meant by the term was not explored in oral evidence. It does not seem to me to be a major discrepancy of importance. He refers to it as the point to gain entry, to go in and in the context I consider he could well mean simply the entry point, and not a mechanical device designed to close the entry point.

187. It is submitted by the First Respondent that there is a discrepancy between the evidence of Muli Tolao and Kupiaro Kemb with respect to whether or not the polling officials were wearing the Electoral Commission T-shirts. This is true, Muli Tolao said they were wearing T-shirts and Kupiaro Kembi said they were not. I prefer the evidence of Muli Tolao because he was there much longer than Mr Kembri and Mr Kembri’s powers of observation and recollection may have been affected by the stressful situation he found himself in.

188. The First Respondent submits that there is a discrepancy between Kupiaro Kembri's evidence and Alfred Manase's evidence as to whether Mister Kemb was threatened not to give evidence, which Mister Kembri denies. I do not think that discrepancy, which exists, bears on the truth or otherwise of Mister Kembri's evidence in relation to the ground of the petition.

189. It is also submitted by the First Respondent that there is a discrepancy between the Petitioner's witnesses as to whether or not there were armed men at the gate of the First Respondent's house. What Muli Tolao said was that the First Respondent had his private armed police guarding the gate. I took that to mean not government police. The question put to Kupiaro Kemb was "Muli Tolao said armed police were there" to which the answer was "I didn't see any armed men there, Muli Tolao is lying". But the question misled the witness because Muli Tolao never said that there were policemen i.e. Government policemen. It was not put to Kupiaro Kembri that there were private policemen. And that exchange came after Kupiaro Kemb had related how an axe had been swung at him and he had been chased and a home-made gun fired at him. So it is just impossible that he intended to say that there were no armed men at all. I do not accept that there is in fact a discrepancy as submitted.

190. The First Respondent submits that there was a lot of confusion as to the exact location of the boxes where the alleged illegal marking was taking place. The view I take of the evidence is that it is fairly clear that when the boxes arrived they were in the new field towards the First Respondent's house but not very close. While the boxes were in the field the First Respondent's supporters were preventing supporters of other candidates from going in to vote. Certainly according to the evidence of Muli Tolao and Kupiaro Kembri there was illegal marking going on in the field.

191. At some unspecified time according to Muli Tolao, and during the fighting when he was attacked according to Kupiaro Kemb, the boxes were moved into the fenced yard of the First Respondent's house. That was when Kupiaro Kembri was chased and left for Kandep. He really has no more to say about the subject. Muli Tolao in his affidavit says that once the ballot boxes were inside the fence entry was restricted to supporters of the First Respondent. He was not further cross-examined on the point.

192. Next the First Respondent submits that Kupiaro Kembri was very inconsistent in the timing he mentioned. It is submitted he said that polling started at 12:30 PM, a fight started he arrived at Kandep 1:45 PM. In chief he said the box arrived at 12:30 PM, in cross-examination polling started at 12:30 PM, he said he arrived at Kandep 1:45 PM, he saw the boxes arrived at Kandep at about 5 PM. Subsequently he said he could not recall the time he arrived in Kandep, he thought he left Wasa at 1:45 PM.

193. In re-examination he repeated that the box arrived 12:30 PM and he left at 1:45 PM. He seemed to have a good appreciation of time, he correctly estimated that he had been in the witness box for 3 hours. The First Respondent submitted that the witness said he left for Kandep at 2:45 PM at one point, but I have no note of that statement. I am not convinced that the discrepancy is of much significance. He certainly gave me the impression that he had the times 12:30 PM and 1:45 PM well memorised. He appeared to find cross-examination stressful, there were long pauses and several requests for the question to be repeated in relation to times and he visibly relaxed once cross-examination was over. I do not think much can be read into that reaction.

194. The First Respondent submits that 2 reasons were given for the fight which both witnesses said occurred during the polling. Kupiaro Kembri said Samuel Kaskus grabbed some ballot papers, Sepet Yakapo broke his hand and when Kupiaro Kemb asked him what he was doing that Sepet swung an axe at him. Muli Tolao said the fight started when supporters of other candidates saw how he had forced his way in to vote and they tried to do the same. He said the first man to go in, Samuel Kaskus, had his hand broken. Now Kupiaro Kembri said that he was leading his people in to vote. So really the 2 versions fit together and are not contradictory, although the detail is not identical. Muli Tolao does not mention that Samuel Kaskus grabbed some ballot papers, perhaps he did not see that. But the stories coincide with Samuel Kaskus having his hand broken and that being the start of the fight. The differences do not appear to me to be significant because it is the sort of variation in detail one could expect from different observers of the same set of circumstances, especially in a tense situation.

195. Muli Tolao gave evidence that the presiding officers for Kokas 1 and Kokas 2 swapped functions. He said Stanley Polye signed for box 1 and Alenge signed for box 2. This was just after saying that the Presiding Officer for Kokas 2 changed to Kokas 1 and the Presiding Officer for Kokas 1 went to Kokas 2. The petition pleads that the presiding officer for Kokas 2 was Stanley Pohai. Muli Tolao said that Stanley Pohai signed the ballot papers for Kokas 1 and Yandal Alenge signed the ballot papers for Kokas 2. Kupiaro Kembri said that Stanley Pohai signed the ballot papers for Kokas 1. Yandal Alenge gave evidence that he was the Presiding Officer for Kokas 2. I find that Yandal Alenge was the Presiding Officer for Kokas 2 and that he marked the ballot papers for Kokas 2. I consider that the evidence of the presiding officers swapping cannot be believed.

196. The First Respondent points to inconsistencies between the Petitioner's evidence on this ground and an annexure to an affidavit of Matthew Lale and evidence given by Kenneth Andrew. I do not consider that those discrepancies are relevant and I would not give any weight to the evidence of Matthew Lale and Kenneth Andrew on this point because it is clearly hearsay.

197. The Petitioner has submitted that his evidence establishes the commission of an offence contrary to the provisions of Section 110 of the Criminal Code and sections 190 and 191 of the organic law. It is an essential element of those offences that "a person" is identified by the pleading and that pleaded person then be proven to have performed the prohibited conduct. The Petitioner has pleaded that the person is Stanley Pohai and has then proven that the person is Yandal Alenge. Consequently in my view the evidence cannot prove the pleaded illegal conduct, at least so far as those sections of the Criminal Code or the organic law are concerned.

198. What troubles me about the evidence of Muli Tolao is that from being the brave man with 32 others forcing his way into vote, and being very close and being able to count how many of his group actually voted, he suddenly says he was scared when asked for particulars of who was signing and marking for Kokas 2 and claims to have retreated to the far side of the field away from where the polling was being conducted. I have what I would say is a reasonable doubt; that this was simply a device to avoid answering questions to which he did not know the answer. In respect of the evidence of Kupiaro Kembri, on his own evidence he was simply not at the polling place from 1:45 PM onward. So he said he does not know what happened in respect of polling after he left.

199. I have not overlooked that there was a substantial discrepancy between the Respondents witnesses David kiss and Yandal Alenge in respect of how the ballot box was transported back to Kandep and there were discrepancies within the evidence of David kiss on the same topic. My assessment is that David kiss gave evidence in his affidavit of matters of which he had no knowledge in respect of transporting of the ballot box. I find it most probable that the evidence he gave in his affidavit about motor vehicles taking the boxes away was inserted by the draughtsman of the affidavit without instructions of David kiss. In oral evidence he did not really seem to have any knowledge of how the box went back to Kandep. My conclusion is that his answers in oral examination were a guess. It was quite late, 8:45 PM, according to Mister Alenge, when the box was picked up. I infer that David kiss had by then gone home. Apart from that discrepancy the Petitioner does not point to any discrepancy in the evidence of Yandal Alenge.

200. This is another polling place where the First Respondent received 100% of the vote, and as I have previously said, I consider that to be a very unlikely outcome in a free, fair and secret ballot, notwithstanding the First Respondent’s popularity and contribution to infrastructure in the electorate. My deduction is therefore that evidence which shows that the polling was not free and fair and secret is far more likely to be the truth than evidence which shows that it was free and fair and secret. Obviously the evidence still has to be believable.

201. There was no suggestion of any collusion between the Petitioner's 2 witnesses. Indeed at times they were inconveniently independent as far as the Petitioner's case was concerned. I therefore consider that I can accept as the truth that there was some disturbance at the polling and that the boxes were on the field at Wapis. The difficulty I have been with Mister Kiss and Mister Alenge's evidence is their denial of these facts. I cannot accept that in almost 700 voters there was not one who wanted to cast a first preference vote for another candidate. That is simply not the nature of mankind.

202. I prefer the evidence of the Petitioner's witnesses so far as it goes, and I find that supporters of the First Respondent prevented supporters of other candidates from voting in Kokas 2. Those persons, the supporters of other candidates, did not vote at all and were prevented from doing so in breach of section 50 of the Constitution. An unknown number of ballot papers were stuffed into the box. As a result I hold that the integrity of polling at Kokas 2 was a completely compromised and the votes from this box ought not to have been counted.

203. Matthew Lale said that polling started at Poketamanda 1 at approximately 1 p.m. and was conducted peacefully until about 4:30 p.m. after some 296 voters had cast their votes. Then a fight broke out, officials and supporters of the First Respondent took the ballot box and papers into a house next to the polling area and the remaining 135 voters did not get the opportunity to cast their votes. Nambuli Magekali gave similar evidence. He said that when the officials took the unmarked ballot papers away they eventually went to Aleyok where the ballot papers were filled in for the sitting member, the First Respondent.

204. Piuwali Yaka, a leader from Pogeramanda said there was proper voting at Pogeramanda. There was no trouble during the voting. After the election was over two women fought quite some distance from the voting place. The boxes arrived at 11 AM, polling commenced at 11:30 AM and finished voting at 5 p.m.. Allegations that there was a disturbance during the polling and that the box and unmarked ballot papers were taken into his house and marked, is a lie.

205. Yaku Kupis from Pogeramanda, employed as a Primary School Teacher, said he was Presiding Officer for Pogeramanda in the 2007 elections. He and his officials were taken on 3 July 2007 to the polling place by a white Isuzu vehicle hired by the Electoral Commission. Polling commenced at 10:30 AM. Polling was completed 4 PM. After the polling was completed there was a fight in the field which had nothing to do with the polling. It was between 2 women and it only lasted 5 minutes. 15 ballot papers were spoiled because towards the end of the polling it started to rain. The village leaders brought a tarpaulin, but the ballot papers left over got wet. When the voters tried to write on them they tore. There were only 416 good ballot papers. The box was locked in a nearby store waiting for transport to Kandep. About 8:25 PM a blue hired truck loaded with other boxes and presiding officials stopped and he got on board with his box and returned to Kandep. He returned the box and his report to Naipet Keae. He went home between 10 and 11 PM, there were still lights on at the station when he left. He was at the Counting Centre on 14 July 2007 when the box was counted. He reported that it was a good box, the scrutineers agreed, there was no dispute about the box being counted.

206. The witnesses for the petitioner said the polling went well until 296 voters had cast their vote, then a fight broke out when 135 ballot papers were left and those 135 voters did not get to vote. The Respondents witnesses said polling went smoothly, everyone voted, one witness said there was a fight after the polling had closed which did not affect the polling.

207. The First Respondent has raised a number of matters alleged to be discrepancies in the evidence of the Petitioner by reason of which I should not believe the Petitioner 's witnesses. The first is that the Petitioner's witness Matthew Lale said that John Mangi was a polling official at Poketamanda No. 1 whereas Depo Emanuel said John Mangi was a polling official at Keso (Pogeramanda No. 2). I have checked the affidavit testimony of Depo Emmanuel and this submission is true. I do not see this discrepancy as of much signifigance, unless together with other evidence it might suggest the witness did not see the events in respect of which he is giving evidence.

208. Next the First Respondent submits that the list of polling officials provided by Matthew Lale does not agree with the list provided by Nambuli Magekali. That is true. Both name Yaku Kupis as Presiding Officer. The others are as follows:

209. Some of these people might be the same person known by slightly different names. The last 2 on the list are clearly not. There is no particular reason why every voter should know the names of all the polling officials. If one or other of the witnesses has made some mistakes in naming the officials I do not consider that is the basis of a drawing an adverse inference.

210. Matthew Lale it is submitted said that Piuwali Yaka punched Apkas Yangala where as Nambuli Magekali said Piuwali Yaka only opposed Apkas Yangala. This is true. This could be attributed to confused recollection or an inaccurate recording of a story given to him by someone else.

211. It is also submitted that Mathew Lale in a report he co-authored to the Returning Officer (annexure D to his affidavit) said Martin Lakari supervised the illegal marking of ballot papers) whereas Nambuli Megakali said Martin Lakari only arrived after the fight started. This is true. The report reads "Field Commander Martin Lakari was also physically present and supervised the filling in of this box without voters casting votes". Mathew Lale’s affidavit gives no evidence of filling in the 135 ballot papers. In his oral evidence he said when the fight broke out the First Respondent’s supporters took the box and remaining papers away, he did not follow. I think it can be concluded that the allegation against Martin Lakari in the letter did not come from Mathew Lale.

212. It is further submitted that when the fight broke out Matthew Lale said the box was taken to the house of Piuwali Yaka whereas Nambuli Magekali said the box was taken to Aleok village. Magekali actually said that the box was first taken to Piuwali Yaka's house and then to Aleok village. He said he saw them take it. The inference I draw is that Mister Magekali has drawn a conclusion, based on his belief that there were 135 ballot papers still to be cast when the box was taken away, and all of the ballot papers were in the box at the counting centre. He gives no evidence that he saw the ballot papers being marked. He just "new" that it was being done. Matthew Lale makes much the same deduction when he gave evidence that he expected there to be only 296 ballot papers in the box at the counting.

213. Mister Magekali was asked why he did not report the incident to the police and he said there was no one to report to. However, he gave evidence that Martin Lakari came around while they were fighting, and they told Martin Lakari that they were fighting. It does raise the question as to why no complaint was made when the opportunity presented itself. Mister Magekali said in his evidence the had to pay K1400 compensation to one of the First Respondent 's supporters the day after the fight. I infer from that, he was at fault, and not in a position to make a complaint when Martin Lakari came around. Matthew Lale does not mention anything about Martin Lakari coming round.

214. The First Respondent submits that Mister Magekali said he was not educated and, cannot read or write words or number. Yet he was able to use English words like "majority" during oral evidence, record numbers such as 296 and 135 and registration number LAS 680 and keep a record using a scrutineer's tally sheet. What he actually said was that he cannot read or write words, he can see but not write numbers. I have serious doubts about whether Mister Magekali can in fact read numbers. When he was asked by Mister William whether he would be able to read the number 296 if it was written and shown to him, he failed to answer the question. I conclude that that he cannot read numbers and that the numbers which he has given in evidence have been memorised after being given to him by someone else.

215. In this respect, that is the number 296, Mister Lale gave the convenient answer that he kept a record of how many were voting as they went in to vote, but did not bring it with him to court. I find that unusual in a man whose affidavit has a number of schedules attached of what he says are contemporaneous records of what occurred at the pre-count and at the counting centre. Why would such a meticulous record keeper not have attached to his affidavit or bring to court for production the evidence of his count of the number of voters who had gone into vote? I consider that this omission casts doubt on Mister Lale's credibility on this point.

216. The First Respondent criticises Matthew Lale's evidence that the ballot box was brought on a blue Isuzu. However I note that Piuwali Yaka said the box was brought on a white Dyna and Yaku Kupis said the box was brought on a white Isuzu. So they only agree on the colour. The First Respondent has suggested that Matthew Lale lied. I cannot see any advantage to the case for the Petitioner in lying about the ownership or colour of the vehicle, which is not an issue in this ground. It might show that Mister Lale has a faulty recollection or was not there when the box arrived and is relying on some other report.

217. The First Respondent’s witness Piuwali Yaka gave straightforward evidence and stood up fairly well under cross-examination. There was half an hour variation between his estimate of when polling started and when the Presiding Officer said it started, and an hours difference as to when it ended. Both sets of times provided a little over 5 hours polling. Piuwali Yaka flatly denied the punching allegation made by the Petitioner's 2 witnesses.

218. The principal criticism which the Petitioner has in respect of the evidence of the 2nd respondent's witness Yaku Kupis is twofold (1) he gave evidence that he delivered the form 58 late in the evening of 3 July 2007 but Naipet Keae has dated receiving the form on 4 July 2007; and (2) there are 2 different signatures on the form where the Presiding Officer is to sign and on his affidavit. Yaku Kupis explained that he has to bank accounts and 2 signatures; that is why the 2nd signature is different. That explanation is quite specious because a cursory glance at the form 58 (exhibit P 79) shows that it is signed "Luai" or "L u ai". The writing bears no resemblance whatever to the signature of Yaku Kupis on his affidavit. I do not accept his explanation. The witness is not telling the truth about this. On the evidence available it is also not the signature of the Assistant Presiding Officer.

219. If there was a logical and reasonable explanation for this unidentified signature on the form 58, I would have expected Yaku Kupis to provide it. As he has not done so I conclude that the reason is one he does not wish to make public. The form 58 has obviously been in the possession of some other person than the Presiding Officer or the Assistant Presiding Officer. That could not happen on the evidence given by Yaku Kupis. I therefore conclude that the evidence which he has given is not the truth. It must follow that the evidence which Piuwali Yaka gave is also not the truth.

220. And as to the dating of Naipet Keae's signature, it was quite late when the box was delivered. The Returning Officer could easily have put the form 58 on his desk and attended to it in the morning.

221. Despite the discrepancies which I have discussed in the Petitioner's witnesses evidence, it has an overall consistency and neither of the Petitioner's witnesses has been caught in a blatant lie. I must prefer the Petitioner's witnesses evidence to that of the Respondents, with some reservations. I find that late in the polling, a fight did erupt at the polling booth, and the remaining ballot papers and the box were taken away by the polling officials. I am not prepared to say that the remaining ballot papers number 135 because of my reservations as to the witnesses accuracy on that point. I do not find that any ballot papers were stuffed into the box because I cannot be confident as to the point at which the box was taken. I cannot find that the box was taken to Aleok village although I find it was taken in that direction. I cannot find that Las Lapen had anything to do with the matter as there was no evidence.

223. Paragraph B 2(c) of the Petition alleges that the box number 0047 and 431 ballot papers were delivered to the polling place. The first voter indicated his choice to the polling officer who marked the First respondent's number instead of the elector's choice. The scrutineers observed this. An argument ensued, electors were chased from the polling area, the ballot box and papers were taken to the Presiding Officer's house and all of the ballot papers marked with a first preference for the First Respondent. The First Respondent polled 346 first preference votes, no other candidate polled a first preference vote.

224. Depo Emmanuel, scrutineer for James Tubin at Keso said that voting did not follow the usual process. Voters were just ordered to walk past and a polling official marked the box of the candidate of the choice of the polling official, the First Respondent. He challenged the officials. A fight broke out. The ballot box and ballot papers were taken to the Presiding Officer's house where he signed all of the ballot papers for the First Respondent, surrounded by supporters.

225. Yapai Angan, a teacher at Kiripiso Elementary School, said he was the Assistant Presiding Officer to Keso polling place in the 2007 elections. Sometimes he is known by the name he used at school, Frank Angale. Puspai Pakaup, was the designated Presiding Officer, but he had a bad leg and delegated Yapai Angan to conduct the polling. Puspai Pakaup called the names and marked the tally sheet. The team arrived at the polling place about 10:20 a.m. polling commenced about 10:30 AM and ending at 4 PM. There were many not on the common role so he made a supplementary list and 4 were allowed to vote with the left over ballot papers. At the end of polling the box was locked in a store near the road for safekeeping and was picked up at 8:35 PM by a blue Isuzu which had been loading other boxes in the Lai constituency. He went with the box to Kandep. Depo Emanuel was neither in the village nor at the polling place during the voting and there was no foul play or argument or secret marking of the ballot papers as claimed by him. He is a next-door neighbour to Yapai Angan and he did not see him in the polling period. At that time Depo Emanuel was working at Ramu Sugar. Yapai Angan believes Depo Emmanuel's son came forward and voted in his place.

226. Only 2 witnesses were called on this ground. The Petitioner's evidence was that 15 minutes into the polling an argument erupted because the polling officials were just asking voters to walk through and just marking the ballot papers and completing them as they the polling officials chose. The witness for the 2nd Respondent said voting went smoothly and there were no incidents.

227. In the petition it is pleaded that Depo Emanuel wanted to vote for James Tumbin candidate N0.17 but the Presiding Officer Mister Puspai wrote. No. 27. The evidence given by Depo Emanuel is that an argument started when he complained about other voters ballot papers being marked against their wishes. He said that he did not vote.

228. The First Respondent submits that the petition pleads that it was the Presiding officer Puspai Pakuap who grabbed the ballot box and papers and ran off. In his affidavit Depo Emanuel says that it was the supporters of the First Respondent who ran off with the box and papers to the house of the Presiding Officer. The evidence of Depo Emanuel says both, in his affidavit he further says the supporters of the First Respondent ran away with the ballot box and papers and towards the end of his affidavit he says "... the Presiding Officer executed his desire by running away with the ballot papers and the box with the help of Don Polye supporters..." I do not consider there to be a contradiction in this evidence.

229. In his affidavit Depo Emanuel said that the Presiding Officer was Mister Puspai and assistant presiding officer Yapai Angan. In cross-examination he says that even up to that day he did not know who the Presiding Officer And Assistant Presiding Officer were. He only guessed because they were signing the ballot papers.

230. It has submitted for the First Respondent that Depo Emanuel said there were no scrutineers because none other candidates were going to get a vote. This is not correct, he said those candidates who had no support at that polling place had no scrutineers; those who had support had scrutineers.

231. It was submitted for the First Respondent that Depo Emanuel said that he did not vote because his name was not at Keso. He did not say that. He said he did not vote at Pogeramanda because his name is not there, it is on the common roll for Keso, where he also did not get the opportunity to vote. It is submitted that he gave evidence contrary to the evidence in his affidavit concerning the vehicle which brought the ballot box. That is not correct. He was asked twice what vehicle brought the ballot boxes and consistent with his affidavit he said a blue Isuzu. It was also submitted that Depo Emanuel said that there was no objection to the illegal voting because everyone was a supporter of the First Respondent. He never said that.

232. It is submitted for the First Respondent that Depo Emanuel said polling started at 12:15 PM and finished at 12:30 PM, just 15 minutes and that this is a very ridiculous answer. What Depo Emanuel said was that a fight broke out after 15 minutes and the ballot box and papers were taken away by supporters of the First Respondent. It was also submitted that when asked whether he was at the pre-count at Wabag he first said "yes" and later said "no". This did not occur. The witness said he was at the pre-count on 29 June and that the pre-count went over 2 days; the boxes were brought to Kandep on 2 July 2007.

233. It is submitted for the First Respondent that when asked who was the scrutineer for Don Polye he answered Ipata Isot but that man was in fact a polling official to Keso. There is a Sepet Isoto on the list of polling teams exhibit P 63. There is no evidence that Ipata Isot and Sepet Isoto are one and the same person. I do not consider that inference can be drawn.

234. The 2nd Respondent submits that paragraphs 4, 5, and 6 of Depo Emanuel's affidavit suggested polling was in progress when the argument erupted. Then it is suggested that because the witness said in cross-examination "only 5 people voted" there is some contradiction. If 5 people voted the polling was in progress; there is no contradiction.

235. The 2nd Respondent submits that the petition alleges that it was the Presiding Officer who was marking ballot papers contrary to the wish of the voter. In his evidence Depo Emanuel said that it was Frank Yangane who was marking the ballot papers. This submission is correct and there is a significant divergence between the evidence and the petition. There is no evidence to prove the facts pleaded in paragraphs 4, 5 and the first sentence of paragraph 6 of the Petition.

236. There is evidence in paragraph 11 of the affidavit of Depo Emanuel to prove paragraph 7 of the Petition. Paragraph 8 of the Petition alleges that at the Presiding Officer 's house all the ballot papers were marked for the First Respondent. There is no pleading as to the identity of who did the marking, or in whose presence the marking was done. These are necessary facts to be pleaded. They would be essential facts in an indictment under section 110 of the Criminal code or section 190 of the organic law. It is not sufficient that those facts be inferred from the evidence stated in the Petition or the evidence adduced. I find that the facts pleaded in the Petition cannot establish an offence under those 2 provisions.

237. However I consider that the facts pleaded in paragraph 7,8 and 9 of the Petition are sufficient to establish the offence of unlawfully taking the ballot box and the ballot papers contrary to section 191 (14) of the organic law. The taking is established by the facts pleaded in paragraph 7 and the unlawfulness by paragraphs 8 and 9. Depo Emenol has given evidence to prove those facts.

238. On the premise that in a free fare and secret ballot no candidate would receive 100% of the vote, I prefer the evidence of the Petitioner to the evidence for the First Respondent. I find that the ballot box was unlawfully taken away from the polling booth with the uncompleted ballot papers by the Presiding Officer with the assistance of the Assistant presiding Officer and supporters of the First Respondent and that the major part of the contents of the box were not placed there by the electors exercising their right pursuant to section 50 of the Constitution. I find the ground proven beyond reasonable doubt.

239. Paragraph B2(e) of the Petition alleges that box Eng 0025 with 590 ballot papers was dropped at the polling place. The Presiding Officer wrote the First Respondent's number on the ballot paper when an elector indicated a wish to vote for another candidate. The scrutineers observed this. An argument ensued. The Presiding Officer took all of the remaining ballot papers to his house and they were never returned. As a result 500 electors were deprived of a right to vote because at the count it was found that there were only 89 ballot papers in the box.

240. There are 3 allegations of fact contained in this ground (a) that the Presiding Officer marked a ballot paper contrary to the express intention of the voter; (b) that the Presiding Officer tried to interfere with the voting process by taking the ballot papers to his house; (c) that there was a general failure of the polling in which 500 people did not get to vote.

241. Iminj Kaipas gave evidence for the Petitioner and Stephen Waka for the First Respondent. Iminj Kaipas was the Assisting Presiding Officer, he said he was standing behind the Presiding Officer and saw him mark a ballot paper with the First Respondent's number rather than the number chosen by the voter. That initiated a disturbance. Stephen Waka said Iminj Kaipas was marking the ballot papers and the supporters of James Tumbin attacked the Presiding Officer because they wanted to destroy that rest house voting. When questioned about the identity of the scrutineers who were present witness Stephen Waka said "I was outside the fence for the polling officials and scrutineers and I did not see who's scrutineers were there. I was staying with the voters at the back of the scrutineers waiting to hear my name" Clearly this man had a restricted view of what was happening inside the polling enclosure. For that reason I consider I should prefer the evidence of Iminj Kaipas in respect of events within the polling enclosure. So I find as a fact that the Presiding Officer did mark a ballot paper contrary to the wish of someone. I think that view is supported by the fact that it was the Presiding Officer who was attacked, not the Assistant Presiding officer.

242. It is submitted that this conduct is a breach of sections 110 of the Criminal Code, and sections 190, 191 (14), 134, 136, 138 and 139 of the organic law. Sections 134, 136, 138, and 139 provide for procedural administrative matters. They do not create offences. A breach of one of those provisions is only an illegal practice if some other provision of the organic law makes it so.

245. It is an essential element of s110 that it is pleaded and proven that the ballot paper was placed in the ballot box. That element of s110 was neither pleaded nor proven and so I find the conduct complained of is not a breach of s110 of the Criminal Code.

246. It is an offence to mark a ballot paper of an elector, except as authorised by the organic law: organic law: s190. s126 authorises the Presiding Officer to initial the back of the ballot paper and s140(1A) authorises a polling official to "complete a ballot paper for the voter in accordance with the voters instructions". It is an essential element of the offence that the ballot paper marked is the ballot paper of an elector. It must be pleaded that the person whose ballot paper was marked was an elector and it must be proven that he was an elector. The facts pleaded do not do that; consequently the conduct complained of cannot be established as an offence under s190.

247. Pursuant to s191(14) it is an offence to be "unlawfully... interfering with... ballot papers". The only time it is lawful for a Presiding Officer to place a mark on the ballot paper other than his signature, is in accordance with s140(1A) or s143. Therefore the evidence could support a finding that the Presiding Officer had committed an illegal act within the meaning of section 215 of the organic law.

248. However, the Petitioner is not free to prove any set of facts that the evidence to hand might establish, he is confined by his pleading in the petition: Sir Barry Holloway v Aita Ivarato and Electoral Commissioner [1988] PNGLR 99 and Kopaol v Embel (2003) SC727 at page 16. If further particulars are required to properly understand the petitioner's ground, the petition has not complied with Section 208 (a) to plead the facts on which he relies: Thompson v Pokasui [1988] PNGLR 210. The only fact in paragraph 5 of the Petition for which there is evidence is that the Presiding Officer wrote the number 26 on a ballot paper. The evidence called by the Petitioner goes outside the pleading and because an election petition is not an ordinary cause, such evidence cannot be relied upon.

249. It is common ground that David Sakarao, the voter whose ballot was being marked as pleaded in the petition, was not involved. Michael Mapitu and another man entered the polling booth and punched the Presiding Officer as a result of which the ballot box and unmarked papers were taken away. The box was returned but most of the ballot papers were not. Iminj Kaipas said most of the open seat ballot papers were taken by the Presiding Officer and the regional seat papers taken by other candidates’ supporters. The Presiding officer took the box to his house. In cross-examination he conceded he did not really know how many papers each person had taken. And the disturbance was instigated by the supporters of James Tumbin. Also in cross-examination he said "the box was taken by somebody, Tony and Jim brought it, the box was brought back, the Presiding Officer said he would bring the papers back". Other people also held onto open seat papers.

250. So that the actions of the Presiding Officer as described are just as consistent with trying to protect the voting materials as with any other explanation. The witness was sure only 6 votes had been cast and therefore could not understand how at the counting 89 votes were counted. The difference between 6 and 89 is not relevant because the Petition does not challenge the difference of 83. I am not satisfied that this allegation has been made out.

251. The ground is also alleging that 500 people were deprived of the right to vote. This is not contested. What is contested is that it was the Presiding Officer's conduct which deprived the voters of their right to vote.

252. The right to vote is a fundamental right of the citizen entrenched in the Constitution by s50. In Baki Reipa v Electoral Commission & Yuntivi Bao (1999) SC 606 the Court said at p.3- 5:

"The Constitution provides in section 126 that Elections to the Parliament shall be conducted in accordance with an Organic Law by the Electoral Commission. And further the provision states that the Organic Law shall make provision for and in respect of the appointment, constitution and procedures of the Electoral Commission and for safeguarding its independence, and the electoral system, and safeguarding the integrity of elections .....

The Constitution clearly provides in Section 50 for the right to vote as a fundamental right of all citizens. So how can this right have any meaning if the State and the relevant State authorities do not ensure that all eligible voters can exercise their right and for the complete security or integrity of the poll. It must be implied in the reference to the integrity of elections in the Constitution section 126 that this must include the full protection and security of the poll. Whilst it should not be open to a single disgruntled individual to completely invalidate an election by a simple criminal act, there must be a very high obligation on the Commission and its officers to provide a full security. And if the State authorities and the Commission itself do not ensure such a complete security then they must bear the consequences of failing to ensure the integrity of every citizen’s vote. Constitution Section 50 creates a heavy responsibility and onus on the State through its instrumentality the Electoral Commission to ensure that the right to vote is meaningful such that the vote of every citizen has a meaning and effect on the result of an election. If the Electoral Commission and the State fails in its duty to guarantee the integrity of the Poll and all votes cast then it is clearly in breach of its constitutional responsibilities and this is more than errors and omissions but a clear breach of the Constitution. So to put these failings in the same bracket as petty mistakes is misleading. ....."

253. It is not disputed that 500 ballot papers were destroyed or stolen. And there are a number of offences which are committed by persons stealing or destroying ballot boxes or ballot papers. The facts pleaded in paragraph 7, 8 and 9 of the Petition under this ground do not amount to an allegation of destroying or stealing the box, nor the ballot papers. The evidence goes against the facts pleaded in paragraph 9, that the Presiding Officer did not return the ballot papers he had. There is no pleading that the Electoral Commission failed to provide adequate security. Therefore within the confines of what has been pleaded in the Petition I cannot find that the loss of the 500 ballot papers was an error or omission of the Electoral Commission or an illegal practice committed by a candidate or by a person other than the candidate without his knowledge.

254. The Petition pleads that 500 voters on the common roll were deprived of their right to vote. Iminj Kaipas gave evidence that the number on the common roll was 585 & 590 Ballot papers were issued. There is no evidence to the contrary so that this fact is established. No evidence was given as to whether the polling officials were or were not entitled to vote using the 5 additional ballot papers. Confining the calculation to the number on the common roll I find 496 electors were deprived of the right to vote. On the basis of the law stated at [260] this ground is proven.

255. Paragraph B2(f) of the Petition pleads that box 0022 and 725 ballot papers were taken to the polling place. Before polling commenced a disturbance occurred during which the ballot box was destroyed and the ballot papers lost. All of the electors were deprived of their right to vote.

256. Lisa Pepom from Yapum said that the polling team, ballot papers and box were dropped off with the polling officials about 3 p.m. As the officials were organising themselves to commence the polling a fight broke out amongst supporters of the First Respondent which appeared to be deliberately planned. Someone attempted to carry the ballot box away, there was a scuffle over the box, while missiles rained down on them from supporters of the First Respondent on the other side of the river. The box was broken and all of the ballot papers scattered. The 720 people from the polling place were unable to cast their votes.

257. I am not satisfied that the evidence given by the witness in respect of the fight being deliberately planned establishes that fact. I am satisfied on the evidence that Bonipas Lyakin and Awali Kem committed illegal practices contrary to the provisions of Section 178 (1) (h) of the organic law, encouraging disturbances to interfere in an election, Section 191 (12) (misconduct in the polling booth) & (14) (interfering with ballot box) of the organic law, which facts were pleaded in the Petition. It was these illegal practices which led to the loss of the ballot papers.

258. The First and Second Respondents submit that the Electoral Commission cannot be held responsible, there is no pleading of inadequate security. I agree. However, section 215 of the organic law does not require an illegal practice to have been committed by the Electoral Commission before it can be one which affected the result of the election. Further it is submitted that "here is a clear example of destruction of the ballot boxes by people themselves who later come to the Court to seek redress in their favour for an illegal act they committed. The Court should not let them win over their own illegal conduct". That submission overlooks the fact that this is the Petitioner's petition, not the people of Yapum's petition. There is no suggestion that the Petitioner had any hand in the destruction of the box.

259. The people of Yapum were deprived of their right to vote pursuant to section 50 of the Constitution and the candidates in the election were deprived of such votes as they may have received. The cause was a pleaded and proven illegal practice by named persons.

260. In the case of Ephraim Apelis v Sir Julius Chan (1998) SC 573 the court said:

"in our view, it is possible as a matter of law for a candidate to petition the result of an election on the ground that the right to vote and the right to stand for elected public office under section 50 of the Constitution has been breached. This ground would come within the wide powers given by section 212 (3) of the Organic Law on "such grounds as the Court in its discretion thinks just and sufficient."

261. The court went on to say that in the particular circumstances of that case, where it was alleged that a list of persons sent to the Electoral Commission was not added to the common roll, the petitioner needed to plead that those persons had made a claim to be enrolled, because only persons who had made a claim had a right to be enrolled. In this case consistent with the requirement to plead facts, the Petitioner has pleaded that 725 people were on the common roll. Lisa Pepom deposes in her affidavit there are 720 voters in Yapum. She gives no evidence about how many voters were on the common roll. The roll was not produced in evidence. A voter is entitled to vote in the electorate for which he is enrolled: organic law section 132 and 136 (right to receive a ballot paper). While section 219 of the organic law (the requirement that a voter claimed to vote in the election) may not be applicable to the situation of the total failure of the poll in a particular polling place, if the petitioner is seeking to have a specific number of votes counted or not counted, the minimum requirement in my opinion is that it be pleaded and proven by evidence that the number claimed is the number on the common roll. Because no evidence was given to prove the allegation in the petition that 725 voters were on the common roll, I find that this ground has not been proven

262. Paragraph B2(g) of the Petition alleges a disturbance and fight caused the ballot box and all of the ballot papers to be destroyed and 476 electors were deprived of the right to vote.

263. Sepik Topin of Lepongo village in Muyen rest house said the ballot boxes and ballot papers arrived at Muyen rest house at 4 p.m. on the 3 July 2007 and polling commenced immediately. A fight broke out, the ballot box and ballot papers were destroyed and the 476 electors did not get to vote.

264. Waro Angili gave similar evidence although he said he did not know Sepik Topin.

265. That the ballot box and ballot papers were destroyed is not disputed. The Petitioner submits that the evidence shows that 476 electors were deprived of their constitutional right to vote, as pleaded, contrary to Section 50 of the Constitution and section 212 (3) of the organic law. It is also submitted that the evidence proves unlawful destroying ballot papers and the ballot box contrary to section 191 (14) of the organic law.

266. I note that the Petition does not plead and the evidence does not establish who by name was responsible for the destruction of the ballot box and the ballot papers. Section 191 (14) of the organic law is a criminal offence. In my view if the Petitioner is to make out an illegal activity by establishing the commission of a criminal offence, then one of the essential elements to be established is, against whom is the allegation being made. There is no named person in the allegation consequently the evidence does not establish that a person named in the petition is guilty, the allegation of a breach of s191(14) is not made out. It is pleaded that there are 476 on the common roll. Sepik Topin, the very young witness for the Petitioner (a young man of 18 or 19 years of age) gave no evidence of how many people were on the common roll and the roll was not produced in evidence. For the reasons I give in respect of Yapum polling place I find that this ground is not proven.

267. Paragraph B2 (h) the Petition alleges that box Eng 0020 with 550 ballot papers were brought to the polling place. After 19 voters cast their votes the Presiding Officer, who was marking a ballot paper for an illiterate elector, marked the First Respondent as first preference when the elector had asked for the First Respondent to be marked as her third preference. A disturbance followed and the ballot box was destroyed and the ballot papers taken and there was no polling. However, at the counting centre box 0075 containing 322 ballot papers all marked with first preference for the First Respondent were counted.

268. Watali Mauwi of Walupim village said that polling at Walupim 2 commenced about 5 p.m. on the 3rd of July 2007. The Presiding Officer was seen to mark a ballot paper contrary to the voter’s request. An argument started. The Presiding Officer grabbed the ballot papers and ran away. The ballot box was completely destroyed. The ballot papers were illegally marked by the Presiding Officer for the First Respondent.

269. Kese Magap, reserve policeman, said he escorted the box for Walupim 2. On 3/707, voting for Walupim 2 took place at Walupim 1 with Walupim 1, together a little way apart. After some people cast their ballots there was a disturbance and the ballot box was completely destroyed. He and the presiding officer with some village leaders returned to Kandep in the late afternoon and saw the DRO Naipet Keae and requested a reserve box. On the morning of 4/0707 they were given a reserve box and returned and conducted polling at Magap Bridge which is the same place as Walupim 2. Lilly Cletus was the presiding officer on both days. On the fourth they used the leftover ballot papers from the third. The voting did not continue on the third after the disturbance.

270. Diti Ipakan from Walupim 2, former councillor for 5 years, now not holding office, said they started polling for Walupim 2 on 3/07/07 at Walupim 1 and gave similar evidence to Kese Magap. There were no arguments with Lilly Cletus before the trouble. No one threatened her.

271. It is not in dispute that there was a fight, that the ballot box was destroyed and some of the ballot papers stolen. What is in issue is what the cause of the fight was and whether polling commenced again the next day.

272. There were 540 persons on the roll and 322 ballot papers in the box at counting.

273. The First Respondent submits that the evidence of Watali Mawe was that he went away on the 3 July 2007 and did not return. He did not say that. He did say he went home on the afternoon of 3 July 2007. When questioned about voting on the 4 July 2007 he said that it did not happen. The 2 witnesses for the First Respondent mentioned that on 3 July polling was at Walupim and then they specifically mention that on the 4 July 2007 they arrived at Magap bridge, and that was where polling took place. It was not explored by counsel as to whether Walupim and Magap bridge are precisely one and the same place or so close to each other that it does not matter. However I draw the inference from the fact that the point is made that polling on the 4th July took place at Magap bridge, that it is geographically a different place from where polling took place on the 3rd.

274. It was never put to Watali Mawe that he was or was not at Magap bridge on the 4th July and he did not volunteer that he was there. The impression left with me was that the suggestion that there was polling on the 4 July 2007 was a complete surprise to Watali Mawe. Although I continue to hold the view that 100% of the vote to one candidate is a very unlikely result in a free fare and secret ball of several hundred people, the burden of proof is on the petitioner and I am not satisfied that Watali Mawe was at Magap bridge on the 4 July 2007 and could give evidence of what did or did not take place there. Therefore the ground must fail in so far as it relates to the 322 ballot papers in the box at counting.

275. As to the balance of 118 ballot papers which went missing, firstly there is an internal inconsistency in the pleading in the Petition. In paragraph 11 it is said that the ballot box and the ballot papers were destroyed completely. Then later it is said that they were filled out. Secondly paragraph 11 of the petition pleads that a supporter (unnamed) of the First Respondent took away the ballot papers and then paragraph 12 pleads that Yoran Kaio has some ballot papers. No evidence was given concerning Yoran Kaio. The evidence is that Watali Mawe, witness for the Petitioner has some ballot papers. This was not pleaded. The position is just not sufficiently clear for me to be in a position to make a ruling in favour of the Petitioner in respect of the 118 ballot papers.

276. Paragraph B2(i) of the Petition alleges that box ENG 0021 and 313 ballot papers were delivered to the polling station. Polling commenced at 5 p.m. and 125 electors cast their votes. 185 papers remained unused when polling stopped at 6:30 p.m., to resume the next morning. During the night the 185 ballot papers were illegally marked for the First Respondent and the box carried away the next morning with no further polling conducted. The First Respondent polled 286 first preference votes and other candidates 26 first preference votes. The integrity of all 313 votes was affected.

277. Robert Tauwel, ward councillor for 10 years at Testes, said polling commenced about 5 p.m. on the 3rd of July 2007 and stopped at 6:30 p.m. when approximately 125 voters had cast their votes. The Presiding Officer then advised the voters that voting would continue the following morning. He said that there was no voting on the following morning the 4 July 2007.

278. Joseph Waiyon, Primary School teacher of Titip Primary School, said that he was Presiding Officer at Testes 1 in the 2007 elections. He left Kandep station on a white Toyota Dyna together with the 8 upper Waghi ballot boxes. Polling commenced 11:30 AM and ended at 5 PM. There were a number of people who wanted to vote and were not on the common role. He created a supplementary list and allowed 3 people to vote with the 3 leftover ballot papers. At the close of polling the box was kept in a nearby trade store. About 9:15 PM a green 10 seater vehicle with defence Force personnel took him and the box to Kandep arriving about 10 PM. He left the box with Thomas Ingapingi and Joseph Yangau. He came back to Kandep on 4 July 2007 to register the box. The allegation that the polling team arrived at the polling place at 4:30 PM, that voting started at 6:30 PM, that only 125 people voted, that the box was kept in Peter Alop Pales house overnight and that he assured the people that voting would continue on July 4, 2007 are all lies. He presented his box on 13 July 2007 at the Counting Centre, for counting. There was no objection to the counting of the box. He was at the Counting Centre again on the 15th July 2007 for the purity check when the counting was rechecked.

279. It is submitted for the First Respondent that the evidence of Leo Talipan, a witness for the Petitioner contradicts the petitioner's witness for this polling station because (1) it is submitted Leo Talipan said Testes was the first box to be delivered. Leo Talipan never said this. He never mentioned Testes in his evidence. (2) it is submitted Leo Talipan said the boxes left Kandep between 11 AM and 12 noon. This is true. Robert Tauwel said on a straight run it would take one hour from Kandep to Testes, longer stopping to drop off boxes. It is submitted that Testes is close to Lapis junction and would be the first box to be dropped. There is no evidence to support the submission. Leo Talipan' S evidence is that on his vehicle there were 2 boxes for Lai and 7 for Upper Waghi. He did not mention Testes. However he did say that there were 10 boxes on the vehicle, but we do not know from his evidence for which polling place the 10th box was destined. It would make sense for the Testes box to be placed on one of the vehicles going through Lapis junction. In cross-examination Joseph Waiyon for the 2nd Respondent said that on 3 July there were 8 boxes for Waghi being dispatched plus Testes.

280. It is submitted for the First Respondent that Robert Tauwel's evidence does not support the facts recited in paragraphs 5 and 6 of the Petition on this ground, which are (1) marking of the ballot papers in the night, (2) the box being carried to Yapum early next morning where it was allegedly uplifted by a police vehicle and (3) that there was no voting on the 4 July 2007. That submission is correct insofar as (1) and (2) are concerned. There is evidence from Robert Tauwel that there was no polling on the 4 July 2007.

281. So the position is this is far as the Petitioner's evidence is concerned. The court would have to draw inference of ballot box stuffing from the evidence that polling stopped on the 3 July 2007 after 125 votes were cast and never recommenced, yet there were over 300 votes in the box when counted.

282. The Petitioner submits that I should not believe Joseph Waiyon for the 2nd Respondent because he changed his testimony from saying he delivered the box and the Presiding Officer's return on the night of the 3rd July 2007 to returning on 4 July to sign and lodge the return because there was no light on the evening of the 3rd. The signature for the Returning Officer is dated 3 July 2007. I would not call it a change of evidence, more a clarification. Joseph Waiyon was asked when he delivered the form 58 and the box and he answered "3 July 2007 10 PM" and added "had to come back on 4 July and register the box". There was no initial evidence that Joseph Waiyon signed the form 58 on 3 July, only that he delivered it.

283. On the evidence before me I find that it is more likely than not that the Testes box went out with the 8 upper Waghi boxes and would have arrived at Testes no later than 12:30 PM. This not only contradicts the evidence of Robert Tauwel, but makes the whole scenario put by him untenable. Therefore, the weight of the evidence simply is not in the Petitioner's case to convince me beyond reasonable doubt that I should draw the inference that the ballot box was stuffed. I find this ground not proven.

284. Paragraph B2(j) of the Petition alleges that box 0044 with 502 ballot papers was delivered to the polling place and polling commenced at 5 p.m. 96 electors cast their votes and polling closed at 6:30 p.m. The box and remaining papers were taken to Kandep and returned the following morning to recommence polling. Before polling could commence armed men forced the Presiding Officer into a school classroom where the remaining 406 ballot papers were illegally marked with first preferences for the First Respondent. The First Respondent polled 415 first preference votes and other candidates 86 first preference votes. The integrity of the 501 ballot papers was affected.

285. Timothy Kilimin councillor for Lawes 2 said that on the 3rd of July 2007 polling commenced about 5 p.m.; polling stopped about 6:30 p.m. when of 19 voters had cast their votes. Security personnel took the marked and unmarked ballot papers back to Kandep station. On the 4th of July the ballot box and team came back to continue polling. When polling was about to commence a team of about 20 men came and got the ballot box and papers and took them to the Lawes community School. The presiding officer Piuk Omnai was threatened and forced into the classroom and he was ordered to mark all of the unmarked ballot papers for the First Respondent. 400 voters were denied their right to vote.

286. Sal Yakenda Paul, youth and church leader from Lawi 2 gave evidence. He was an electoral official for Lawe 2, he was assistant polling clerk. Polling commenced 3/07/07 and completed 4/07/07 at the Lawe community school field. There was proper polling. Allegations that on 4/07/07 the box was taken are a lie.

287. Piuk Omnai, recently retired as a community school teacher at the age of 60, said that he was the Presiding Officer for Lawe 2, in the 2007 national elections. Where he had been teaching and living for 14 years. On the 3 July 2007 he left Kandep with his box and ballot papers arriving at Lawe rest house at about 2 to 3 PM. There was a lengthy argument of about 40 to 50 minutes as to whether to start polling or defer it until the next day. He explained to the people that he was instructed to commence polling that day. He commenced polling at 3 PM and finished at 6 PM when exactly 100 people had voted. A security vehicle picked up the polling team and the box and papers and took them back to Kandep. The following morning they went to get the box at 6 AM from the Council Chambers, they left Kandep at 7 AM and commence polling again at 8 AM, finishing at 12 noon. 502 papers were issued to the polling station, one was unused, 2 used by electoral officials and 2 by persons whose names were not on the roll. He was not forced or threatened by anyone and ballot papers were properly marked. He was at the Counting Centre when the box was counted. Counting started at 1 PM on the 11 July 2007 (became a bit confused as to whether there was any counting in the morning--getting visibly tired towards the end of his evidence). Lawe 2 was the 2nd box counted. There was no objection to the box.

288. It is not disputed that the box and polling officials arrived on 3 July 2007 in the afternoon and that there was some polling on that day, and that the box then went back to Kandep and was returned on the 4 July 2007 to continue polling. The issue in dispute is whether there was free and fair polling on 4 July 2007 or whether the Presiding Officer was threatened to mark all of the ballot papers for the First Respondent.

289. To establish this ground I must accept the evidence of councillor Kilimin who gave evidence for the Petition over the evidence of Sal Yakenda Paul and Piuk Omnai, the Assistant and Presiding Officers, who gave evidence for the First and 2nd Respondents respectively.

290. I find I cannot place sufficient weight on the evidence of councillor Kilimin to find this ground proven to the requisite degree because of the following matters:

(1) His evidence claims it took 1 ½ hours for 19 people to vote, which I cannot accept;

(2) the Petition and councillor Kilimin's affidavit suggest that Piuk Omnai was threatened to sign the ballot papers. In his oral evidence he said that Piuk Omnai was a supporter of the First Respondent and it was only his own people doing it so that Piuk Omnai had no reason to resist. These seem to be inconsistent concepts, force as against co-operation;

(3) he did not report the alleged illegal signing of the ballot papers to the police when they came back to collect the ballot box at midday on the 4 July 2007, he only reported to Piuk Omnai, the person he said was not resisting the illegal signing. The police are the people to whom illegalities are reported, why would councillor Kilimin make a report to a person implicated in the activity he is complaining about? The evidence does not stand logical examination;

(4) he said the people were angry that they missed out on being able to vote. When the police vehicles came back to pick up the ballot box on the 4 July 2007 these angry people were not mobbing the police vehicle with complaints, according to councillor Kilimin they were selling betel nut and playing cards;

(5) the petition alleges that Piuk Omnai was signing ballot papers in the classroom. Councillor Kilimin said he was outside the building, the windows were shut, and he could not see what was going on in the classroom. He appears to be stepping back from the allegations in the petition.

291. I was impressed with the evidence given by Piuk Omnai. Apart from getting a little tired towards the end of his evidence, he gave his evidence in a relaxed and straightforward manner. He had retired into the community in which he had served as a schoolteacher until retirement date. He was obviously very comfortable in that community. I consider that if he had been threatened he would not hesitate to say so and would be supported by his community.

Allegations in the petition

The evidence

On the 3rd July 2007 between 3.30pm and 4.00pm the following Ballot Boxes with Ballot Papers arrived at Kanean Road Junction on Chief Kuale Yaro’s White Isuzu Truck. The details are:-

Polling Place
Ballot Box No.
Total Ballot Papers issued

1.
Kinduli
ENG 0061
746 (741+5)

2.
Laguni
ENG 0062
683 (678+5)

3.
Imipiaka
ENG 0063
643 (638+5)

Total Issued:
2997

2. The other Lower Wage Boxes including Kanean Box No. ENG 0060 with 925 (920x5) Ballot Papers came on the Isuzu Truck driven by Buka Nokop.

3. There were no security personnel escorting the above ballot boxes and the Lower Wage Boxes together with the polling officials to the polling places. Four vehicles followed the two Isuzu Trucks. They are candidate Michael Marabe’s Vehicle Reg. No. HAG 557 driven by himself, Martin Sapala’s Blue Land cruiser Utility, supporter of Be Pepo, Don Polye’s Blue Ten Seater, Reg. No. LAT 412 driven by Don Polye’s cousin George Was and John Gap’s White Tea Seater Reg. No. HAC 020 driven by himself. He is a strong supporter of Don Pomb Polye.

4. At Kanean near the Basket Ball Court, the Kanean Ballot Box No. ENG 0060 and the Polling Officers for Kanean Polling Place were dropped off by Buka Nokop and thereafter left for Titip and other Lower Wage Polling Places.

5. At Kanean Road Junction, Chief Kuala stopped and refused to drive his Dyna Truck to Kinduli, Laguni and Imipiaka Polling Places with the ballot boxes for these three polling places.

6. After a while, Lopi Anga went up and took the Laguni Ballot Box No. ENG 0062 down from Chief Kuala’s Truck and went towards Pala Luwai’s store with the box but the people there asked him to return it to the truck. When he came to return it Yapis Kaia, Don Pomb Polye’s ministerial staffer together with Yasuwa Waro (Pomb’s brother) Ben Propis, Kengeran Open and others, all supporters of Don Pomb Polye surrounded him and took the Ballot Box towards the Basket Ball Court where the Kenane (sic) Box was.

7. Sometime later, Yapis Kaia and the supporters of Don Pomb Polye put Kanean and Laguni Ballot Boxes into the Blue Ten Seater Reg. No. LAT 412 while rest of the Don Pomb Polye’s supporters went to the Dyna truck and got the Kinduli Ballot Box towards the Basket Ball Court and was loaded with the Kanean and Laguni boxes.

8. After a while, Imipiaka Ballot Box was taken down by the polling officials and kept near Pala Luwai’s Trade store. Hence, Cr. Paiteali Komai, the Imipiaka Councillor requested Michael Marabe to drop off the Imipiaka Box at Laguni but he refused, so Martin Sapala was trying to take the officials and the Box to Laguni.

9. After a couple of minutes, when the Councillor and officials were talking to Michael Marabe and Martin Sapala Yapis Kaia and Don Polye’s supporters mentioned in paragraph 5 above, drove the Blue Ten Seater Reg. No. LAT 412 down to where the Imipiaka Box was, threatened the polling officials and grabbed it and loaded it into the vehicle and drove back to Tope Village which is Don Pomb Polye’s so called father Pomb’s village.

10. The 4 ballot boxes with ballot papers inside were hijacked by Don Polye’s supporters and relatives with the acquiescence of most of the polling officials who were supporters of Don Polye as well and taken to Tope Village. When this happened a fight ensued and one person was shot with an arrow.

11. The following officials were present when this happened but did nothing to stop the illegal practice from being perpetrated.

1.
Dorcas Balo
Presiding Officer
Kanean

2.
Pala Luwai
Presiding Officer
Laguni

3.
Albert Luwai
Presiding Officer
Kinduli

4.
Paul Wanaga
Assistant Presiding Officer
Kinduli

5.
Dominic Anai
Assistant Presiding Officer
Kanean

6.
Gini Kolo
Assistant Presiding Officer
Laguni

12. At Tope Village, during the night until the next morning, the Laguni ballot papers (should be 683 ballot papers but 925 ballots papers were marked) were illegally signed by Presiding Officer, Pala Luwai, without polling and Don Polye’s supporters marked the first preference votes for Don Polye and the second and third preference votes were marked for candidates they preferred and placed them into the Kanean Box No. 0060.

13. Also, during the night until the next morning at Tope Village, the Kanean Ballot Papers (should be 925 Ballot papers but 683 ballots papers were marked) were illegally signed by Presiding Officer, Dorcas Balo and the Don Polye’s supporters marked the first preference vote for Don Polye and the Second and Third preference were marked for candidates they preferred and placed them into the Laguni Ballot Box No. 0062.

14. Consequently, at the scrutiny at Wabag Counting Centre, Don Pomb Polye polled 920 illegally cast votes from the Laguni Box No. 0062 and polled 683 illegally cast votes from Kanean Box No. 0060.

15. This is wrong because only 683 Ballot Papers were issued to the Laguni Polling Place, in accordance with the electors on the Common Roll plus five extra, whereas 925 ballot papers were issued to the Kanean Polling Place in accordance with the electors on the Common Roll plus five extra but the Kanean Ballot Box contained 683 ballot papers which was meant for Laguni Polling Place and 920 ballot papers were in Laguni Ballot Box which was meant for Kanean.

16. This mix up occurred because they were illegally marking the ballots in the night and did not know what they were doing. Despite this error, the Returning Officer allowed the number of vote cast in these two Boxes to be added to Don Pomb Polye’s tally instead of declaring them informal.

17. Consequently, Don Pomb Polye obtain 1603 illegally cast first preference votes from Kanean and Laguni ballot boxes. All other candidates did not receive any first preference votes from these two boxes.

18. As a result, there was no polling at Kanean and Laguni Polling Places and the voters such as Cr. Pap, Martin Sapala, Nao Ulane, Jackson Hilai and Peraki Pero and others from these two polling places whose names are on the respective Common Rolls did not vote and their constitutional rights to vote for candidates of their choice was breached.

19. Further, at Tope Village, Albert Luwai, Presiding Officer, Kinduli illegally signed all the 746 ballot papers for Kinduli and Don Polye’s supporters and officials sent to Kinduli marked the first preference votes for Don Polye only and the second and third preference were marked for candidates they preferred and placed into Ballot Box No. ENG 0061.

20. Further, at the time of scrutiny at Wabag Counting Centre, Don Pomb Polye polled all the 746 illegally cast first preference votes from Kinduli’s Ballot Box No. ENG 0062. No other candidate polled any first preference votes from this Ballot Box as well.

21. As a result, there was no polling at Kinduli polling place and the voters from Kinduli polling place whose names appear on the Common Roll did not vote and their Constitutional Rights to vote for a candidate of their choice was breached.

22. In the premises, Don Pomb Polye polled 2349 illegally cast votes from Kanean, (683 votes) Kinduli (746 votes) and Laguni (920 votes) Ballot Boxes, which votes are likely to affect the results of the election because there are first preference, second preference and third preference votes making a total of 7047 votes which were affected by the illegal practice which other candidates would have polled.

23. The Presiding Officer, Mr. Joe Erap did not participate in the illegal practice in the night at Tope Village were the ballot papers for Kanean, Kinduli and Laguni were being signed and marked for Don Polye by the polling officials. Hence, the 643 Imipiaka Ballot Papers with Serial Nos # 32501-33000 (500) # 34201 – 34300 (100), # 34301 – 34343 (43) were illegally marked and put into Ballot Box No. 0053 belonging to Andokoe polling place.

24. The Imipiaka Ballot Box No. ENG 0063 is still at Yasuwa Waro’s house at Tope Village whilst the Ballot Papers were put into Andokoe Ballot Box and where counted at the time of scrutiny. Don Polye polled all the votes in this Ballot Box. The Andokoe Ballot Papers were destroyed.

25. Consequently, 643 voters from Imipiaka polling place whose names are on the common roll for this polling place including Cr. Paiteali Homai were denied their constitutional rights to vote a candidate of their choice at their own polling place which is also likely to affect the result of the election as there are three preference votes to three different candidates making a total of 1929 preference votes which the candidates would have polled and when added to their tally, the results would be different.

Gini Koko said the boxes arrived about 3:30 PM. Joe Erap said the boxes did not leave Kandep until 2 PM.
Nau Ulnae said the boxes arrived about 4:30 PM. The respondents witnesses were all fairly consistent in saying that the boxes arrived at Kenean at about 11 AM
it is not an issue that the Kinduli, Laguni and Imipiaka boxes were on chief Kuala's vehicle.
It is disputed that the Kenean box was on Buka Nokop’s vehicle. The Respondents case is that the box was on chief Kuala's vehicle. Gini Koko said the Kenean box came on Buka Nokop’s truck. Joe Erap in cross-examination appears to say Imapiaka Laguni Kinduli at Kenean boxes were on chief Kuala's vehicle.
This is disputed. The Petitioner's case is that there was no security. The Respondents case is that there was a police vehicle with armed policeman and 14 unarmed policemen on each Dyna truck.
That Michael Marabe's vehicle followed is not an issue. The other vehicles are all in issue. Gini Koko at paragraph 5 of his affidavit said 3 vehicles followed, Martin Sapala came later; Joe Erap said 2 but added another 2 (Michael Marabe and Martin Sapala) in oral evidence.
Nao Ulane and Gini Koko say Buka Nokop's vehicle dropped the Kenean box
The Respondents say chief Kuala's vehicle dropped the Kenean box at the Road junction; the balance of this paragraph not in issue
This is denied by the Respondents. Joe Erap said the 2 hired trucks were blocked by 2 of the following vehicles. Gini Koko said as pleaded. Nau Ulane said saw Gini Koko asking chief Kuala would he help. Gini Koko said he did not ask, he only thought of asking Michael Marabe
Gini Koko and Nau Ulane give this evidence, Joe Erap does not mention the incident, the Respondents denied the incident
Nau Ulane said the Laguni box was then taken to a blue 10 seater LAT 412
Nau Ulane said the Kenean box was taken to Tope by hand, the Laguni and Kinduli boxes were put into LAT 412. Gini Koko said Laguni, Kinduli & Imapiaka boxes were put into the dark blue 10 seater as did Joe Erap
there is no evidence of this allegation of the box being kept near Pala Luwai's trade store
Nau Ulane said that the councillor and Joe Erap were trying to take the box to Martin Sapala's vehicle and the hijackers collected it later. Gini Koko said that the boxes for Kinduli, Laguni and Imapiaka were taken in one go and placed in the blue 10 seater LAT 412
the Respondents denied this allegation and the whole of paragraph 10.

The whole of paragraph 11 is denied

The whole of paragraph 12 is denied

The whole of paragraph 13 is denied

The whole of paragraph 14 is denied

The whole of paragraph 15 is denied

The whole of paragraph 16 is denied.

The whole of paragraph 17 is denied

The whole of paragraph 18 is denied

The whole of paragraph 19 is denied

the votes were illegally cast is denied

The whole of paragraph 21 is denied

Denied

Denied, the Respondents say Joe Erap was Presiding Officer for Mambala

Denied

293. The Respondents have made a number of submissions about the credibility of individual witnesses for the Petitioner which I now deal with.

(1) the 2 trucks driven by Buka Nokop and chief Kuala waited several hours at Lakis junction, as does Gini Koko, which Joe Erap does not mention. The Respondents witnesses deny this. It is an important issue because the consequences flow into many polling places. It makes a difference between there being no time to commence polling on 3rd and there being half a day for polling. I have not been able to resolve the conflict to my satisfaction;

(2) that he left Kandep at 10:30 AM and arrived at Kenean junction at 2:30 PM, he gives no explanation, for why a 1 1/2 hour journey took 5 hours, but this is not relevant to the pleading;

(4) he met Leo Talipan at Kenean at 8:30 AM on 4 July 2007 although Leo Talipan said he was at Kenean at 12 PM and in cross-examination that it might have been anywhere between 9 and 12. Based on Solomon Tayu's evidence that Nao Ulane and Leo Talipan were at Waipe at about 9:30 AM I prefer Nao Ulane's times to those of Leo Talipan;

(5) he gives a detailed list in his affidavit of the polling officials said to have been at Kenean on the evening of 3 July 2007. When asked how he knew this he claimed to have interviewed them serially which I find unbelievable. As a matter of common sense and logic why would he do that? He did not advance any reason. I consider it most likely that he obtained these names later when preparing his affidavit;

(6) in his affidavit that Joe Erap was the Presiding officer for Mambal and Jeffrey Kundal Presiding Officer for Imipiaka (as shown in the published list of polling officials). In his oral evidence he reversed those positions, explaining it as a typing error. The reversal coincided with evidence from Joe Erap that he was at the last minute changed from Mambal to Imapiaka. Further reference was made to some hand drawn arrows on the official list of polling officials perhaps indicating that the roles were reversed, but no authorship was established for those arrows. The inference I draw is that Nao Ulane had no independent knowledge of who the presiding officers were for the respective polling areas and took the information from the official list of polling officers, only to find later that this conflicted with the evidence of one of his fellow witnesses; and to avoid conflict he changed his evidence;

(7) that the box for Mambal was dropped off but the officials for Mambal were driven past Mambal and came on to Kenean to look at the market because they were not voting until the next day. I prefer the evidence of Gini Koko and the witnesses for the Respondents that the officials for Mambal were offloaded at Mambal. Why Nau Ulane woud say that the Mambal officials came to Kenean is a mystery. Perhaps he felt that if it was not accepted that Joe Erap was Presiding Officer for Imapiaka it would explain his claimed presence at Kenean;

(8) he saw and heard Gini Koko ask Michael Marabe at Kenean Road junction to transport boxes to Laguni and Michael Marabe's response; whereas Gini Koko said in chief that he asked. In cross-examination that he only thought about it and did not actually ask Michael Marabe; and he claimed that the statement to the contrary in his affidavit was a typing error. So if Gini Koko did not ask then Nao Ulane could not have heard him asking. I deduce that Nao Ulane is just repeating something that he heard from Gini Koko or another rather than something that he observed;

(9) that the hijackers took the Kenean, Laguni and Kinduli boxes first to Tope village and later came back and picked up the Imipiaka box, whereas Joe Erap said the Imapiaka box was taken by the hijackers from the truck at the same time as the Laguni and Kinduli boxes. I discuss this later.

(10) He said that the Kenean box was unloaded by the Presiding Officer Dorkas Balo and the other ballot boxes were unloaded by the polling officials to those places, except Imapiaka and Kinduli which were still on the truck; whereas Joe Erap said all boxes were taken off the truck by the hijackers. I take this into consideration when assessing the credibility of Joe Erap;

(11) he said when the polling officials unloaded their boxes from chief Kuala's vehicle they walked towards the other Dyna truck to be dropped off to Laguni. But the other Dyna truck driven by Buka Nokop was loaded with boxes going in the opposite direction. In cross-examination he said he meant chief Kuala's vehicle, which in the context of the phrasing his affidavit is a change of story. However I note that a lot is sometimes lost in translation and I do not put much weight on this discrepancy;

(12) he said the Kenean box was taken to Tope by hand whereas Joe Erap said the Kenean box was the first to go into the high-jackers dark blue land cruiser;

(13) He claimed that his name was on the typed official list of polling officials and he denied that he was only appointed at the last minute on the morning of the 3rd July 2007 by Leo Talipan; whereas Leo Talipan confirmed that with authority from the Returning Officer he made that and other appointments on the morning of the 3 July 2007 and the names were added by hand to the official list of polling officials, not typed. The list was produced and showed Nau Ulane’s name added in hand writing. The document establishes that what Leo Talipan said is most likely correct. Why Nau Ulane denied the timing and method of his appointment I do not understand. However, it has nothing to do with the pleaded facts and therefore I consider it does not have much importance in assessment of the evidence.

295. I do not put much weight on the discrepancy in times apart from time for the arrival of the hired Electoral Commission vehicles at Kenean, but the other matters I think raise doubts as to the reliability of Nao Ulane's evidence. I find I cannot rely on his evidence, particularly in relation to the story of the hijacking, unless corroborated by other evidence.

(1) the first respondent submits that Gini Koko lied about his name being on the common role. That I think is taking what he said too far. What Gini Koko said was that his name should be there but that it was not. It is also submitted that he lied in claiming that Mary Sai was on the Kenean common role. He never made the claim. It is submitted that he said his affidavit that he stayed overnight on 3 July 2007 with his cousin brother but in his oral evidence that he stayed with his cousin sister. This is wrong, in the affidavit he said he stayed with his ‘cousin’;

(2) in his affidavit evidence he said nothing about Imapiaka ballot papers being put into the Andakoe box at Tope village, which was what he later said in oral evidence. His explanation for the omission in the affidavit was he must have forgotten. This is a significant point and its omission from the affidavit needs to be satisfactorily explained. "I must have forgotten" is not to my mind an adequate explanation. Although the Petitioner submits that the absence of the Imapiaka box at the counting centre corroborates the point, the fact is the evidence is just as consistent with the realisation by Gini Koko that the absence of the Imapiaka box at the counting centre gave him a further opportunity to embellish his evidence. It is however significant in relation to the allegation that the Imipiaka ballot papers went into the Andokoe box, that the number of ballot papers in the Andokoe box at the counting was 1 less than the number allocated to Imipiaka and several hundred less than issued to Andokoe;

(3) he said, as did Joe Erap (who included the Kenean box), that the hijackers grabbed the ballot boxes and papers for Kinduli, Laguni and Imipiaka and put them in the dark blue 10 seater and drove over to Tope village. This conflicts with Nao Ulane's evidence that only the Kinduli and Laguni boxes were taken and the hijackers came back 5 minutes later to get the Imapiaka box. While it is conceivable that in the urgency and stress of the situation witnesses might differ as to how many boxes first went into the vehicle, I consider that the return of the vehicle to collect another box would be an event causing alarm and apprehension so as to be noted by everyone present.;

(4)he said that the box to Kenean was offloaded at the basketball court before the hijacking. From Joe Erap's evidence all the boxes were still on the truck at the hijacking;

(5) in his affidavit he said that he and the councillor for Imapiaka rest house requested Michael Marabe to assist them with his LandCruiser to drop them at Laguni. He repeated that in examination in chief, then in cross-examination he retracted that statement, said he only thought of asking Michael Marabe but did not actually ask him and that the statement in his affidavit to the contrary must be a typing error. The inference I draw is that it suddenly occurred to Gini Koko in the witness box that Michael Marabe may be called to give evidence which would differ from his own, so he decided to change his evidence to be on the safe side;

(6)in his affidavit he said that chief Kuala refused to go on from Kenean for no good reason although the road condition was good. Then in cross-examination he said Dyna's do not drive to Kinduli. He seemed to want to have it both ways;

(7) he said that Martin Lagari took 7 boxes from Tope and drove to Kandep via Mambal at 9:30 AM, a journey of one and a half hours giving an arrival time of 11 AM. Policemen witnesses for the Petitioner Steven Kolopa and Jonathan Povae said Martin Lagari dropped 6 boxes from the lower Waghi at Kandep station between 2 and 3 PM. So there is a discrepancy with the number of boxes and a discrepancy with regard to timing. If Martin Lagari left Tope at 9:30 AM and went directly to Kandep he would arrive in Kandep at 11 AM, not 2 PM, with 7 boxes not 6;

(8) he said he heard gunshots or a gunshot from Mambal shortly after Martin Lagari left at about 9:30 AM. Joe Erap said that he was at Mambal all day where there was peaceful polling, and it was only after the polling was complete that a police vehicle came through and someone was shot from the vehicle. So the shot that Gini Koko says he heard about 9:30 AM could not have been the shot that killed the student. The inference I draw is that Gini Koko was simply trying to provide further details to enhance the probability of his own evidence being true. But as there is a high probability that the further details are not true, it has the reverse effect and casts doubt on the truth of the rest of his evidence;

(9) he said in his affidavit that he confirmed with the updated common role issued by the Electoral Commission for Laguni that the total eligible voters were 675 "but I found 255 extra ballot papers were being signed and put into the box". When giving his oral evidence he changes 675 to 678 and 255 to 242, the correct figures according to the Laguni and Kenean rolls. I do not know how anyone could make such a mistake when they were confirming their figures with the common roll. And of course the figure 242 could only be known by referring to the common rolls endorsed with the note that ballot papers were being transferred to accommodate the Sakar people displaced by tribal warfare; or from the polling results at the counting room. The inference I draw is that he did not know the precise figures until someone showed them to him on his arrival in Mount Hagen to give evidence in the trial.

(10) He said that he found on the tally sheet that the extra ballot papers had been placed in the box. If that is the case I do not understand how the figure 255 could be mistaken for the figure 242, although it is necessary to add figures together from several tally sheets because one sex tally sheet only caters for 350 males and 350 females. A calculation error could creep in there.

(11) Counsel for the Petitioner submits that the fact that 678 and 242 add to 920 which is the total number of electors on the roll for Kenean, but that 920 ballot papers appeared in the Laguni box at the counting centre is "proof" that Gini Koko is telling the truth. But the figures which were originally in Gini Koko's affidavit added to 930; and his amended evidence is just as consistent with the witness tailoring his evidence to fit the results at the counting centre as it is with the story he is telling being true, subject to other evidence which may corroborate it.;

297. It is true, as the Petitioner’s counsel submits that Gini Koko stood up well under cross-examination in respect of what happened at Tope village on the night of the 3rd and early morning of 4 July 2007. However, there is no evidence of any other witness of those alleged events with which Gini Koko's evidence can be compared. Therefore the reliability of this evidence in general I have to assess by comparing it with the evidence of other witnesses for the Petitioner where they give evidence on the same topic as Gini Koko i.e. the hijacking allegation, and such other evidence as I feel is reliable, such as documents.

298. The overall inference that I draw with respect to Gini Koko's evidence is that he is a man who adds embellishments or particulars to his evidence to make it more believable, but when those particulars are not believable, it makes the body of his evidence suspect and not sufficiently reliable from which to come to a conclusion to my complete satisfaction or almost beyond reasonable doubt unless corroborated by other credible evidence.

299. The First Respondent submits that Joe Erap gave evidence that Mister Leo Talipan appointed him presiding Officer for Imipiaka and that Leo Talipan denied having done so. Joe Erap said he was appointed just as they were leaving on 3 July 2007 by the District Returning Officer. Then in re-examination he said the ARO Leo Talipan appointed him. Leo Talipan did say in cross-examination that Joe Erap was the presiding officer for Imapiaka. He said Joe Erap and Jeffrey Kundal asked to change and he told them to see the boss. He did not approve the change the DRO approved it. He said "yes" because the DRO said "yes". I do not see any major conflict here from which an adverse inference can be drawn.

300. There was a very curious exchange during cross-examination with Joe Erap. He said he saw Jeffrey Kundal at Kandep just before they left, so he obviously knows Jeffrey and he confirmed that directly. He knew that Jeffrey was a Presiding officer because they attended training together. He knew that Jeffrey was originally appointed to Imapiaka but did not want to go there for security reasons. He did not know to which place Jeffrey was appointed. He does not know if Jeffrey was on the vehicle with him. The vehicle did not stop at Mambal, there was no need to stop. He did not know who the Presiding Officer was for Mambal although he knew the Assisting Presiding officer. Because there was no polling at Imapiaka he went home and spent the whole of the next day, 4 July 2007, at Mambal watching the polling.

301. Joe Erap’s story is a complete contradiction of the Leo Talipan version, which put the approach to exchange polling places as a joint request by Joe Erap and Jeffrey Kundal to swap. If that was the case Joe Erap would obviously know that Jeffrey Kundal was the Presiding officer for Mambal. If he spent the whole day at Mambal on the 4 July 2007 during the polling he would observe who the Presiding Officer was for Mambal.

302. This version by Joe Erap also contradicts the evidence of Gini Koko who was on Chief Kuala’s vehicle with him and gave evidence that the vehicle stopped at Mambal and the box and officials were offloaded. He said the Presiding Officer for Mambal was Jeffrey Kundal.

303. The Respondents put to Joe Erap that he was not the Presiding officer for Imipiaka but the presiding Officer for Mambal, which he denied. Some evidence was called to the effect that Joe Erap got down from the vehicle when it stopped at Mambal to offload the Mambal box. No evidence was called by the Respondents from the District Returning Officer to deny the appointments swap, but the burden of proof remains with the Petitioner;

304. Joe Erap said that although he was appointed to Imapiaka he did not know the names of the other polling officials. As the Presiding Officer he would have the responsibility of allocating the work. As a matter of common sense I would consider that the first thing about which he would enquire if there was a change of polling place, was the identity of his fellow polling officials so that he knew whom he had to work with and the roles to which they had been appointed. Even if this information was not given before departure I would expect he would make some enquiries on the truck as to the identity of the people going with him to Imapiaka. It seems to me an odd lack of curiosity or enquiry.

305. Joe Erap said that he signed his affidavit in Wabag. But under the signature of the Commissioner of Oaths is the stamp of a commission of Oaths at Porgera, making it doubtful that the affidavit was duly sworn.

306. Joe Erap’s evidence was impliedly to the effect that the Kenean box was on Chief Kuala’s vehicle, whereas Gini Koko said it was in Buka Nokop’s vehicle. As they both rode in the same vehicle one would expect they could agree on this point;

307. There are other conflicts between the evidence of Joe Erap and the evidence of Gini Koko and the evidence of Nau Ulane to which I have already referred.

308. It is a reasonable inference to draw on the evidence of Joe Erap that both the Dyna trucks driven by Buka Nokop and chief Kuala were at the Kenean road Junction when the hijacking took place. He gives no evidence of the hijackers surrounding vehicles. Gini Koko gave evidence that the hijackers surrounded the vehicles of chief Kuala and Michael Marabe. Nao Ulane said that the hijackers surrounded the vehicles of chief Kuala and Martin Sapala. It was for the Petitioner to clarify in evidence in chief from the 3 witnesses as to how this triple conflict came about and to resolve it if possible. As Michael Marabe and Martin Sapala’s vehicles were Toyota Land Cruisers, a recognition or recollection error could occur.

309. So there is left this conflict of evidence and unexplained lack of knowledge or denials on the part of Joe Erap about the Presiding Officer from Mambala and whether the vehicle stopped at Mambala and how the boxes were stolen at Kenean Road Junction from which I draw the inference that his evidence generally is unreliable. He may not have been at Kenean road junction.

310. The First Respondent submits that Leo Talipan said he collected Nao Ulane at Kenean about 12 noon and later in cross-examination when confronted by Nao Ulane’s evidence of something to 9 he said it could have been 9, 10 or 11 AM. He said he left Mambal on the 4 July 2009 between 1 PM and 1:30 PM. Nau Ulane said it was about 9:30 AM. For the reasons I give later I consider that Leo Taliban’s evidence of times can only be relied upon if corroborated by others. It is also submitted that Leo Talipan said he left Nao Ulane at Mambal whereas in re-examination of Nao Ulane said that Leo Talipan left him at Kenean. I do not have a note of that response.

311. The First Respondent submits that Leo Talipan said that the Presiding Officer at Waipe asked him to get some police security and that Solomon Tutu a witness for the Petitioner for Waipi said there was no security problems, he was only 9 m or so from Leo Talipan and the Presiding Officers talking and did not hear the Presiding Officer ask for security. This must be intended to be a reference to Solomon Tayu, he gave evidence for the Petitioner. There was no Solomon Tutu. Of course, asking for police security may have been something which the Presiding Officer thought was best not to speak too loudly about so as not to injure local feelings. The fact that Solomon Tayu did not hear it is not conclusive evidence that it did not happen. In fact Solomon Tayu qualified his own evidence by saying "I don't know, I didn't hear, there were a lot of people talking and gathering to cast their vote". He also said that he did not see whether the Presiding Officer accompanied Leo Talipan to his vehicle or not. So is quite possible that things were said which he did not hear. I am not prepared to find that there is a discrepancy here.

312. The First Respondent submits Leo Talipan said that it was an overcast day at Waipe and consequently he could not accurately tell the time, whereas Solomon Tutu (sic) said that it was a fine sunny day. It is not a fact in issue and I think it is very clear from all the evidence that people who live in rural areas and do not wear watches can be very inexact with the time, perhaps more so on overcast days. I do not see this discrepancy as an issue from which I can draw an adverse inference against Leo Talipan. However, 2 points are worth noting (1) Solomon Tayu said that Leo Talipan came at about 9:30 AM, which is close to Nao Ulane's estimate of the time he and Leo Talipan were not that far away at Titip, and (2) Solomon Tayu said that "in the afternoon there was no rain, it was sunny". The only evidence of what it was like in the morning (on Ulane/Tayu timing) came from Leo Talipan who said it was overcast. There is no clear evidence of a discrepancy.

313. The First Respondent submits why did not Leo Talipan meet up with Gini Koko an official from Laguni, at Kenean and get a report from him on the morning of 4th July 2007? But there is no evidence that Leo Talipan went down Laguni way nor is there any evidence that Gini Koko was at Kenean early the following morning. Gini Koko said he went to Tope village. Titip and the other polling places down to Waipe and Andakoe are in the opposite direction after leaving Kenean. It is also submitted why did not Leo Talipan meet up with Kenneth Andrew? Kenneth Andrew's evidence was that he was at Titip from the night before until 11:30 AM on 4th July 2007 (or according to Dii Akpas 9:30 AM or 10 AM) he did not say that he spent all that time standing at the polling place. He may have been in a house and Leo Talipan would have no way of knowing whether he was there or not. He was not asked. I conclude no adverse inference can be drawn from the fact that they apparently did not see each other.

314. The First Respondent also submits that Leo Talipan said he saw Martin Lagari only once on the 4 July 2007, he was coming from the direction of Kandep and he saw him at Porokali while Leo Talipan was returning to Kandep about 12 noon. This timing would fit with the evidence from the 2 young policemen that Martin Lagari returned to Kandep between 2 and 3 PM. It would not fit with the boxes being picked up at 9:30 AM as alleged by Gini Koko, if they were directly returned to Kandep because they would be back at Kandep by 11 AM; unless Martin Lagari was making a 2nd trip after having dropped the boxes for Kenean Kinduli Laguni and Imipiaka. And that is possible if Leo Talipan was still mistake about times and actually saw Martin Lagari much earlier than 12 noon, closer to 9:30am which I consider to be very likely.

315. One aspect of Leo Talipan's evidence which I find just a little curious, is that he said he met Nao Ulane at Kenean on the 4 July 2007, and accepting the evidence of Nao Ulane and Solomon Tayu, he would have been at Kenean at about 8:30 AM; Leo Talipan makes no reference to receiving a report from Nau Ulane. His reference to noting no signs of voting at Kenean is made both in respect of his arrival when he said "there was no polling when I arrived there " and in respect of his return there later in the day and speaking to the Assistant Presiding Officer Simon Milo. In his affidavit Nao Ulane says of Leo Talipan "He witnessed what had happened and noted down the situation as we have reported what had actually happened to our ballot box and ballot papers". In his oral evidence he makes no mention of making this report or of Leo Talipan making any notes. On the other hand neither Nao Ulane nor Leo Talipan say anything which would be inconsistent with the affidavit evidence of Nao Ulane on this point. I have decided that it is not a discrepancy and I draw no adverse inference.

316. My impressions of Leo Talipan are, that he was a man who found himself out of his depth in the role of Assistant Returning Officer. He had previous experience of elections as Presiding Officer but I conclude that he was a rural public servant not used to working under pressure and was feeling overwhelmed by his allocated roles in the administration of 74 polling places and helpless and frightened by some of the things he observed from which he concluded that things were going wrong with the election process with the co-operation of senior public servants. His reaction was to go home (when he saw ballot boxes being returned from areas where he believed there was no polling) or stay away (he missed the first 2 days of counting) or to just shut down and not observe what was going on around him (his lack of knowledge of what happened in the counting room when he was there, and his silence when ballot boxes were produced for polling places he visited and believed he observed no polling). I did not consider him to be deliberately dishonest in any of his evidence. But having worked for a substantial period of time in very remote areas and not being the owner, or at least the wearer, of a watch his evidence of times cannot be relied upon.

Submission by the Petitioner as to the Credibility of Respondents Witnesses and the Evidence

317. It is submitted for the Petitioner that Yapis Kaia and Tutu Sai said Lopi Anga was not at the Kenean Road junction on 3 July 2007. Dorkas Balo said that he was. Nau Ulane said that he was there. There are several possibilities as to why Yapis Kaia and Tutu Sai said Lopi Anga was not at Kenean Road junction, the first is that they simply did not see him in the crowd of over 100 people. A 2nd is that he was involved, as Nau Ulane says, in temporarily taking hold of a ballot box and Yapis Kaia and Tutu Sai wanted to negate the possibility of that allegation being proven. However the name in Dorkas Balo's affidavit is slightly different, mentioning the name ‘Angu’, she gave no oral evidence about Lopi Anga and because the possibility remains that she was speaking of a different person I am not prepared to draw any adverse inference.

318. Counsel for the Petitioner submits that the evidence of Dorkas Balo that she had a meeting with Pala Luwai, Tutu Sai and other leaders and they unanimously agreed to 242 ballot papers to be given to Laguni presiding officer for the Sakar tribe, contradicts the evidence of councillor Tutu Sai that he went to Kandep station and arrangement with Naipet Keae to give 237 ballot papers for the Sakar tribe to be collected at Kenean Road junction.

319. What Dorkas Balo said in her oral evidence was that representatives of the Sakar people had previously met with the DRO and that before she left Kandep Leo Talipan gave her an envelope and instructed her that if the Sakar people came to Kenean that they were to be allowed to vote. If they did not come to inform the leaders at Kenean that the envelope contains 242 ballot papers for the Sakar people and give the envelope to the Presiding Officer for Laguni. So that her oral evidence neatly joined together the evidence given in her affidavit (amended as to the number of votes) and the evidence given by Councillor Tutu Sai.

320. The oral evidence Dorkas Balo gave, to the effect that she was following instructions of Leo Talipan, and that at the counting centre Leo Talipan explained what had happened when an objection was raised to the counting of the Kenean and Laguni boxes, was not evidence contained in her affidavit, it was new information not available to the Petitioner before trial. It was not put to Leo Talipan in cross-examination during the Petitioner’s case. This has deprived the Petitioner of the opportunity of meeting the case for the 2nd respondent. This is a breach of the rule in Browne v Dunn (1893) 6 R 67 .

321. In this instance the new evidence given by Dorkas Balo completely changes the tenor of the evidence given in her affidavit. It is not just an additional matter. The clear inferences to be drawn from the statements in her affidavit were that (1) the approach to transfer ballot papers to Laguni for the Sakar people was instigated at Kenean by representatives of the Sakar people after she had briefed the people on the LPV system; (2) the decision taken to transfer the ballot papers was not one authorised by the DRO but taken by the leaders and the Polling Officials at Kenean. This contrasts and conflicts with her oral evident that the ballot paper exchange took place immediately she got off the truck. I do not believe this statement about instructions from Leo Talipan. A polling official taking this extraordinary step, would not be taking the responsibility for making the decision herself or with others, if she could point to some higher authority that had in fact made the decision. And logic and common sense tells me that this would be a universal reaction. I am quite satisfied, that if Leo Talipan had given instruction for ballot papers to be transferred from one polling place to another, Dorkas Balo would have said so in her affidavit.

322. The same observation can be made about the evidence of councillor Tutu Sai, which purports to corroborate the evidence of Dorkas Balo. His evidence, of going to Kandep and seeing the DRO in advance of the elections to arrange the transfer of ballot papers, was a completely new matter not referred to in his affidavit and not put to Leo Talipan during the Petitioner’s case. His affidavit was quite specific in saying "We the people and representatives from Laguni ward requested Kenean polling team and the voters to give about 237 ballot papers from the Kenean ballot box... at the request, the polling officials and the village leaders decided to give about 237 ballot papers...". There was no suggestion that this was authorised by the DRO. And again I observe that the natural reaction I would expect would be to invoke the highest authority that authorised the transfer. Further he makes the same numerical error that Dorkas Balo made regarding the number of votes. I do not believe this evidence.

323. Another aspect of this Sakar people story is why 242 ballot papers? How has it been possible to go through the common roll and select the Sakar? There is no evidence that it was done. And it is such a striking coincidence that the Sakar people number exactly the numerical difference between the number of voters on the Laguni roll and the number of voters on the Kenean roll.

324. Dorcas Balo was calm and confident in the witness box. Despite her appearance, I conclude that Dorkas Balo made up the evidence that she was acting on the instructions of Leo Talipan, because she knew he had given his evidence and would not be back. It appears to me that both Dorkas Balo and Tutu Sai have been coached to give fabricated evidence in this regard.

325. Chief Kuala gave evidence that he saw an envelope changing hands. That does not make an inherently untrue story more likely to be true. Nor do I believe the evidence of Pala Luwai corroborating the evidence of Dorkas Balo for the reason that in my opinion it could not be true, because Dorkas Balo’s evidence is not true.

326. Further, I consider it highly unlikely that an electoral official of Presiding Officer ranking would take it on themselves to do something as radical as transferring ballot papers from one polling place to another. The precise number of ballot papers exchanged, which both the Petitioner's witness and the 2nd Respondent's witness got wrong in their affidavit evidence, raises questions about the veracity of the evidence. If the displacement of the Sakar people took place in 2005 or 2006 as per the evidence, then that would have been noted when the electoral roll was subsequently updated. There should be no need to transfer ballot papers.

327. Counsel have not dealt in their submissions with the evidence of Matthew Lale, witness for the Petitioner, to the effect, that at the counting he noted that the serial numbers of the ballot papers issued for Laguni polling place were in the Kenean box.

328. He annexes to his affidavit his record of the ballot paper serial numbers issued at the pre count at Wabag on the 1st & 2nd July 2007. There were several such lists produced in evidence during the trial, one by Mathew Lale, one by Rueben Sei, both witnesses for the Petitioner and one by Noel Sandal, witness for the First Respondent. There was also a computer generated list produced by the Electoral Commission which went into evidence by consent, but there was no evidence given in respect of it. That is, no witness came and said that was the list used to distribute ballot papers. I have compared all of the lists. Those produced by Mathew Lale, Rueben Sei and Noel Sandal appear almost identical; the computer generated list produced by the Electoral Commission appears quite different. I conclude that the list produced by Mathew Lale, Rueben Sei and Noel Sandal is the actual list of ballot papers distributed.

329. Mathew Lale said in his affidavit that at the counting he saw ballot papers serial numbers 34001-34183 and 34501 – 35000, total 683, issued to Laguni, in the Kenean box when its contents were distributed. He also saw that the ballot papers serial numbered 35001 - 35900 and 35 901 - 35925, a total of 925, which at the pre-count had been issued to Kenean polling place in the Laguni box number 0062. Mathew Lale was not questioned in oral evidence concerning this statement and Dorcas Balo gave no evidence regarding it.

330. The Petitioner also submits that Dorkas Balo's evidence was that the Presiding Officer for Laguni would use 2 common rolls; councillor Tutu Sai said only 2 pages of the common role were sent. Councillor Tutu Sai's evidence is not logical. The common roll is organised alphabetically. Unless the Sakar people's names are confined to certain letters of the alphabet, which I consider highly unlikely and is shown not to be the case if one is to believe the Kenean roll tendered with names marked with an "L" to denote Laguni, 2 pages from the common roll would not serve the required purpose. However, councillor Tutu Sai was not a polling official, his knowledge of electoral matters could be expected to be limited, and I do not place any weight on his evidence about the common roll.

331. I note also that (1) Dorcas Balo said that the security escort vehicle turned back from Kenean towards Titip. Pala Luwai said that the Escort vehicle followed chief Kuala's vehicle all the way to Kinduli. Evidence of the green police escort vehicle being seen on the Titip/Waipe road would suggest Dorkas Balo is right. (2) Dorkas Balo said the only vehicles following the Dyna trucks when they reach Kenean were the police escort and the vehicle for Michael Marabe. Yapis Kaia said Be Bepo's vehicle was also following. That would be Be Bepo’s vehicle driven by Martin Sapala. I accept that Yapis Kaia is right because that agrees with the evidence for the Petitioner.

332. The Petitioner also submits that Yapis Kaia said that when chief Kuala's vehicle left Kenean between 6 and 7 people got on it to go to Kinduli and Laguni, the councillor Tutu Sai said 60 persons jumped on the vehicle. It is submitted that from this discrepancy I can draw the conclusion that the vehicle never travelled to Kinduli and Laguni. As both witnesses said they travelled on this vehicle when it left Kenean Road junction, one would expect they would notice the difference between crowded seating with an additional 60 people on board and the more spacious situation of having only an additional 6 or 7 on board. So that this is a significant discrepancy which I need to take into account in the overall picture when determining where the truth lies. I cannot conclude from this one discrepancy that the vehicle never travelled beyond Kenean.

333. The Petitioner draws my attention to the fact that Yapis Kaia conceded that the First Respondent and his family are on the electoral roll of Kenean polling place, that they were not at Kenean to vote on the 3rd or 4 July 2007; but their names have been struck through on the tally sheet as having voted. With the administrative system which usually prevails at the polling place, with one person calling names and marking them off the roll, another marking the tally sheet and the Presiding Officer initially and handing over the ballot papers, the Presiding officer is not always aware of the name to which the voter standing before him has answered. However, the door keeper and the assistant polling clerk would certainly be aware that the persons who answered to claim a vote in the name of the First Respondent and his family were not those people. This evidence does not advance the Petitioner's case in the sense that it proves any pleaded fact, except for a small number of ballot papers unlawfully placed in the ballot box. It is one more matter to be taken into account when considering credibility and whether the evidence proves the pleaded ballot box stuffing.

334. With respect to the form 58 Presiding Officers Return Of Voters and Ballot Papers the Petitioner submits that the form 58’s for Kinduli Laguni and Kenean are all only dated 4 July 2007 and not the 3rd and 4 July 2007. It is submitted that I can draw the inference from this that there was only polling on the 4th and not on the 3rd and 4th as the Respondents witnesses said. However, when those forms are examined it is clear that the printed form only makes provision for insertion of one date. The form is printed so - "Date of Polling.../.../...". To insert 2 dates would be to include information for which the form was clearly not designed to receive. So that I do not think that any inference can be drawn from the omission of 3rd July 2007 from the forms.

335. What is of interest from the forms 58 is that in respect of Laguni the DRO has signed that he did not receive the form until the 8th July 2007, 4 days after polling. In respect of Titip it is the same. In respect of Kenean the form 58 is endorsed that the DRO did not receive it until the 9 July 2007. In respect of Laguni and Kenean the handwriting of the numbers inserted in the forms bear an uncanny likeness to each other but not to the signatures on the forms. However these matters were not dealt with by the evidence nor the submissions and I therefore feel that I cannot draw any conclusions from them.

(1) Overall I do not consider that the Petitioner's evidence from Nau Ulane, Gini Koko and Joe Erap is of the standard required to establish to my complete satisfaction or close to the standard of beyond reasonable doubt the allegation of hijacking at Kenean junction and the marking of ballot papers in the night at Tope village in respect of the Kenean, Kinduli, Laguni, and Imipiaka unless corroborated in some relevant respect by other evidence;

(2) On the other hand with respect to the evidence of Dorkas Balo, Pala Luwai, councillor Sai and chief Kuala it seems to me an unbelievable co-incidence that the number of ‘Sakar people’ is the exact difference between the number of enrolled voters for Laguni and the number for Kenean. It is even more of an unbelievable co-incidence that both Ms Balo and Councillor Sai both forgot to mention in their affidavits that they were just following the instructions of Leo Talipan, and that Councillor Sai forgot to mention his meeting with Naipet Keae. And also a suspicious circumstance that that all 3 Dorkas Balo, Pala Luwai and councillor Tutu Sai made the same error in their affidavits in referring to 237 votes exchanged between Kenean and Laguni and changing the figure at trial to 242. In fact it is such a remarkable set of co-incidences that I am not prepared to believe that it is the truth. It all points strongly to there being a mastermind behind the creation of this fiction who got his or her maths wrong when creating the evidence of Dorkas Balo, Pala Luwai and Tutu Sai.

337. For those reasons I believe the evidence given by Mathew Lale is true. The Laguni ballot papers were in the Kenean box. The Kenean ballot papers were in the Laguni box. If there was proper polling this could not happen. It could only happen if both boxes were stuffed. I am satisfied that both boxes were stuffed.

338. Being satisfied that the Laguni and Kenean boxes were stuffed with a votes not properly cast, I accept the evidence of Gini Koko to the extent that the Laguni and Kenean boxes were at Tope village and that the Presiding Officers stuffed, or were privy to stuffing those 2 boxes contrary to the provisions of Criminal Code Section 110. And I am so satisfied to my complete satisfaction and beyond reasonable doubt. The fact that the First Respondent received 100 percent of the vote and the fact that the First Respondent and his family were recorded as voting even though it is conceded that they were not present, are also facts which reconfirm my finding that there was no polling. As to how the boxes got to Tope and how and when they left and were returned to Kandep are ancillary matters which may establish other illegal activities, on which I make no finding. The 683 ballot papers for Kenean and the 920 ballot papers for Laguni were affected by illegal activities.

339. In respect of Kinduli I do not find other evidence which I can add to the weight of the evidence of Gini Koko to make me completely satisfied that I can accept his evidence concerning this box.

340. The box for Imipiaka was not brought to the counting. At the distribution of ballot papers at Wabag on the first and 2 July 2007, 643 ballot papers were issued to Imapiaka polling station. 840 ballot papers were issued to Andakoe polling station. At the counting centre the number of papers in the Andakoe box was 642, one less than issued to Imapiaka, almost 200 less than issued to Andakoe. Matthew Lale gave evidence that he noted when the Andakoe box ballot papers were distributed at the counting centre, during the counting of ballot papers for the Kandep open electorate, that those ballot papers bore the serial numbers for ballot papers issued for Imapiaka. This evidence sufficiently corroborates the evidence of Gini Koko for me to accept that he did see at Tope village the ballot papers for Imapiaka being placed in the Andakoe box. And I reject the Respondents evidence to the contrary and in particular the evidence that there was proper polling at Imapiaka.

341. The Petition does not plead any names with respect to who marked the Imapiaka ballot papers. It is pleaded that the Polling Officials marked the ballot papers. Not all of the elements required to establish an illegal practice under the Criminal Code Section 110 or the organic law section 190 or section 191 have been pleaded, because the first element in each of those offences is "person" and the identity of the person must be pleaded. However there was a complete failure of the poll, the people of Imapiaka were deprived of their right to vote granted by section 50 of the Constitution. The number of persons on the roll entitled to vote is established by the number of ballot papers issued at the pre-count, which was based on the number of persons on the roll. Therefore 643 votes can be added to the pool of votes lost.

342. Paragraph B2 (b) alleges that in the early hours of the morning after the ballot box and ballot papers for Titip were left at Titip primary school people came and stole the box and ballot papers and took them to Tope village where the Presiding Officer unlawfully signed the ballot papers which were then marked with first preference votes for the First Respondent by supporters and officials. The ballot box involved was 0059 and the number of ballot papers 1046. At the count, the First Respondent received all 1046 first preference votes. The electors of Titip were deprived of the right to vote.

343. The Petitioner called no first-hand evidence in support of the allegations contained in paragraph 3, 8, 9, & 10 of the Petition in respect of this ground, which cover the allegations, (1) Parkit Yaros agreed to polling commencing on the 4th; (2) that all of the overnight security at the Presiding Officer's residence, apart from the First Respondent's supporters went home about 4 AM, (Dii Apkas said he went home, he gave no evidence about other persons providing security going home), (3) the First Respondent's supporters came at 4: 30 in the morning, threatened the Presiding Officer and took him and the box away, (4) that shots were fired. (5)There is no evidence of the box being taken to Tope village, as distinct from the box being seen at Tope village.

344. The Petition pleads that the Titip box was on the vehicle driven by Buka Nokop. Dii Apkas gives this evidence. The Respondents witnesses agree, I find this as a fact.

345. The Petitioner's evidence in relation to when the box arrived at Titip and whether there was any polling on 3 July 2007 was from Dii Apkas who said the box was dropped at the polling place at about 4:30 PM on 3 July 2007, Nao Ulane for the Petitioner said the District returning Officer ordered the boxes and polling officials to be loaded at about 10:30 AM, he went ahead to Kenean and he saw Buka Nokop 's vehicle arrived at Kenean at about 4:30 PM where it offloaded the Kenean box and officials. Leo Talipan was at Kandep and he said the boxes were dispatched between 11 AM and 12 noon, it would take about 1 1/2 hours to Kenean, and it was a further 5 km to Titip; but he had heard that they (in context Buka Nokop 's vehicle) had to wait a long time at the junction. He was in a Toyota land cruiser followed by a police vehicle going to upper Waghi. The vehicle driven by chief Kuala and the vehicle being driven by Buka Nokop were left at Lakis junction.

346. Kevin Yandaip and Gini Koko, witnesses for the Petitioner said that they were on the vehicle driven by Buka Nokop and they waited several hours at Lakis junction for security forces to join them. When the security forces did not turn up they proceeded without them. According to Kevin Yandaip they were waiting for the security forces to return from upper Waghi. According to Gini Koko they were waiting for the security forces to return from the Lai constituency. I do not think this discrepancy matters much because from the Lakis junction the same road goes to both places.

347. Kenneth Andrew said Buka Nokop 's vehicle was at Waipi, which is reached through the Lapis and Kenean road junctions and much further beyond Titip about 5 PM.

348. Joe Erap for the Petitioner said the vehicles for chief Kuala and Buka Nokop left Kandep about 2 PM and arrived together at Kenean junction. Joe Erap does not mention the wait at Lakis Junction. But then he has the boxes leaving Kandep 3 hours after all the other witnesses for the Petitioner and 5 hours after the evidence according to the witnesses for the respondents. I cannot accept Joe Erap’s evidence on this point.

349. When all of the evidence is reviewed for all of the polling places to which ballot boxes were to be delivered by chief Kuala's Dyna vehicle and Buka Nokop 's Dyna vehicle there is a very consistently opposing body of evidence from the Petitioner's witnesses and the Respondents witnesses. The Petitioner's witnesses all say that the ballot boxes arrived late in the late afternoon whereas the Respondents witnesses all say the ballot boxes arrived between 11 and 1 PM. It is a conundrum I have not been able to resolve by reference to the evidence. What it does point to is a strong orchestration of the evidence by one or other of the parties.

350. The First Respondent submits that Dii Apkas said the box arrived at 12 noon. In his affidavit evidence he said the box arrived at 4:30 PM. In cross-examination he said Sacharias Kalo wanted them to vote when it was already 4 PM. In my opinion he never accepted that the box arrived at 12 noon.

351. The First Respondent submits both Dii Apkas and Kenneth Andrew said that they reported the hijack at Titip to authorities. Dii Apkas in cross-examination said that he did not report. Kenneth Andrew said he reported at Kandep station about 11 AM on 4 July 2007 with his supporters but the police and soldiers chased them away.

352. The First Respondent submits that the allegation that the Titip box was hijacked is a recent fabrication because the letter of 11 July 2007 annexed to the affidavit of Matthew Lale says that Titip was a good box. However the letter of 11 July 2007 to the Electoral Commissioner Annexed to the affidavit of Kenneth Andrew says that Titip was one of the boxes hijacked and taken to Tope village. Further the annexure referred to by counsel for the First Respondent refers on page 2 under the heading "Waipi LLG Area" to Titip box 0059 as a hijacked box. So the First Respondent's submission cannot be sustained. There were early allegations that the Titip box was hijacked.

353. As to whether there was polling on the 3rd July 2007 Dii Apkas said polling was deferred to the 4th and on 4 July 2007 there was no polling. Nao Ulane and Leo Talipan gave evidence that they were together and they went to Titip on 4 July 2007 and saw no polling being conducted or any evidence of polling having been conducted, although there were plenty of people. Their times as to when they were at various places together are consistently 2-3 hours apart, Nao Ulane being earlier than Leo Talipan.

354. Nau Ulane said that he was at Titip at something to 9 o'clock on 4 July 2007 with Leo Talipan. Leo Talipan said he was at Kenean at 11 AM or 12 noon before going to Titip, but in cross-examination said it could have been 9, 10 or 11 AM; there were a lot of people gathered at Titip, that he saw no polling and no polling officials and no signs of polling, such as a fenced area. Those gathered said supporters of Kenneth Andrew had taken the box. Titip is about 5 km from Kenean. Solomon Tayu said Nau Ulane and Leo Talipan were at Waipe at about 9:30am. This would correlate with Ulane & Talipan being at Titip about 9am. I find Leo Talipan was mistaken as to the time and that he was at Titip at about 9am.

355. Kenneth Andrew said in his oral evidence that he was at Titip on the evening of 3 July 2007 until 11:30 AM (in his affidavit he said he was at Kandep at 11 AM) on the 4 July 2007 and saw no sign of voting. Dii Apkas said that Be Bepo came and picked Kenneth Andrew up to go to Kandep between 9 and 10 AM. Whether Kenneth Andrew left Titip at 9 or 11 AM, the effect of his evidence is that there was no evidence of polling on 4 July 2007 starting at 8am.

356. While there are aspects of the evidence of Nao Ulane, Leo Talipan and Kenneth Andrew which I cannot accept, faced with a very unlikely outcome that the First Respondent has received 100% of the vote from Titip, I accept the evidence of these witnesses that there was no voting at Titip on the 4th July 2007, and the evidence of Dii Apkas that there was no voting on the 3rd, as being the most likely explanation for this very unusual outcome. In the face of that evidence I cannot accept the evidence for the Respondents that there was proper polling on 3rd and 4th July 2007. And I think this is supported by both the evidence of Dii Apkas and Kenneth Andrew that they and their families did not vote, although their names have been struck through on the electoral roll indicating that they did vote. This is only compounded by the evidence that Kenneth Andrews family names were listed on another roll and also struck through on that roll as having voted. Contrary to the First Respondent’s submission that this evidence makes Kenneth Andrew’s evidence unreliable, I think it further establishes fraud in the polling process at Titip.

357. It is submitted for the Respondents that it is possible for people not to vote for themselves. No doubt this is true. That does not address the evidence of Apkas and Andrew that they did not vote at all because there was no opportunity to vote. They were present in Titip sometime between 8 (the Respondents case is that polling recommenced at 8 AM) and 11 AM on 4 July 2007 as were Nao Ulane and Leo Talipan and there was no sign of voting.

358. The Titip box has been tied into the story given by the Petitioner's witnesses in respect of Kenean, Laguni and Kinduli polling places, because it is said all of those boxes were hijacked at Kenean Road junction(excepting the Titip box) and taken to Tope village where together with the Titip box the ballot papers were marked in the night by the polling officials and supporters of the First Respondent. As I have said earlier to be satisfied to the required standard with regard to the testimony of Gini Koko, I would require some other evidence which corroborated what he said he saw at Tope village. I have found that there was no polling at Titip. 1046 marked ballot papers were received at the polling centre. That I find is corroboration of the evidence of Gini Koko of the sighting of the Titip box at Tope village where Sacharias Kalo was privy to the marking and stuffing of this box. There is no other explanation of how the marked ballot papers got into the box without polling.

359. The fact that there was no voting on the 3rd or 4th July 2007 means that there was a complete failure of the poll and the people deprived of their right to vote pursuant to section 50 of the Constitution. It is pleaded that there are 1046 voters on the common roll. The roll was produced in evidence (exhibit "P 59") to prove the number on the roll. I am satisfied that 1046 votes have been affected by a breach of s50 of the Constitution.

360. Paragraph b2( d) of the Petition alleges that the ballot box 0074 with 598 ballot papers was dropped off at Kitali with the officials who then walked towards Yumbis but stopped on the way at Kombekale which is not the gazetted polling place. At Kombekale the polling officials were threatened by the people to cast 587 first preference votes for the First Respondent with eight token first preference votes for other candidates. At the count the First Respondent received 587 illegally cast first preference votes. As a consequence the 598 electors of Yumbis were deprived of their right to vote.

361. Jack Lyamba was the only witness called for the Petitioner. His evidence was troubling in a number of respects. He claimed to be a long time magistrate for Taitenges and Kitali, from Kitali. However the named Jack Lyamba does not appear on the electoral roll for Kitali. There are 3 Lyamba's but no Jack Lyamba. He acknowledged that he is also known by the name Yongop Kari, but that name is not really used. That name is also not on the common role for Kitali. Jack Lyamba conceded in cross-examination that his name was not on the roll.

362. He said the 2 boxes arrived at Kitali between 4 and 5 PM and because it was late they did not vote but "we slept". Then he said that one of the boxes was for Yumbis and about 10 people started carrying that box towards Yumbis so he followed them. So first he is saying "we slept" and then he is saying that he left his own village and its box and followed the box going to Yumbis. His only reason for following along, he said, was that the Yumbis box was usually taken by helicopter but now was going on foot. He knows some of the people at Yumbis but he is not related to anyone there.

363. He said the ballot papers were marked by the light of a pressure lamp in the night at Kombekale while he and the scrutineers watched. It took about 1 1/2 hours then he, the polling team and others walked back to Kombekali, which is on the road to Kandep, arriving about 7 AM. He left them there and went to Kitali, a little over 1 km further on. The voting at Kitali commenced at 7 AM and finished at 2 PM, and then he went to sleep.

364. Jack Lyamba marked a distance which was agreed to be 42 km as the distance between Kitali and Yumbis. So if Jack Lyamba is to be believed he was awake for over 30 hours during which time he walked the equivalent of 2 marathon foot races with a 1 1/2 hour rest in between, with no sleep. Life can be hard in rural areas and no doubt it breeds hardy people. But this seems to be an exceptional effort for a man no longer in his youth. He had no connection with Yumbis and I ask myself, why would he bother to go to such extraordinary exertions from mere curiosity?

365. When paragraph 5 of his affidavit was put to him which says that those marking the ballot papers "distributed as a token a few first preference votes to other candidates..." he said that was not his evidence, he did not write that and he only knew that some votes went to other candidates after the counting.

366. Just going back to the allegation of marking ballot papers in the night at Kombekale, Jack Lyamba gives no reason as to how or why he is able to go into the house neighbouring the house where the ballot papers are allegedly being marked. While rural a people can be very hospitable I would think a group of perfect strangers camping on your doorstep in the early hours of the morning would be alarming and not to be encouraged. He avoided answering the question as to how he was able to stay in that house.

367. There is no explanation as to how Jack Lyamba knew the names of the alleged hijackers, apart from saying that he knew some of the people at Yumbis. On his evidence they never reached Yumbis. He said that these hijackers were supporters of the First Respondent because they killed pigs for Don Polye and he used to give them money. These are generalisations and there are no particulars.

368. In the same paragraph 5 of his affidavit referred he said "... the scrutineers of Herman Anep and Michael Marabe were threatened by the Angalina people to cast all the 587 first preference votes for Don Polye...". In cross-examination he said that the scrutineers were with him at the adjacent house.

369. It is submitted for the First Respondent that it was established by Caspar Kaletaka, the Presiding Officer for Yumbis, that on the direct and obvious foot route from Kitali to Yumbis one does not reach Kombekale, which is beyond Yumbis. He gave evidence that to pass through Kombekale on the way to Yumbis it would be necessary to take another much more circuitous route, which would not be taken by people travelling on foot. However, this contention was not put to Jack Lyamba and for that reason and those set out at paragraph [11-12]I do not taken into account.

370. Over all I consider the nature of Jack Lyamba's evidence raises a reasonable doubt as to whether he did in fact go with the Yumbis polling team. On his evidence it seems to me that it is a claim of a quite extraordinary physical feat undertaken in the night for no reason other than mere curiosity by a man well into his middle years to a place with which he had no blood connection at a time when, as a magistrate, one would expect him to have important responsibilities in his own village. His evidence is not corroborated by a scrutineer for any other candidate nor by any elector on the Yumbis roll. I could not find the allegations of the petition proven beyond reasonable doubt solely on the evidence of Jack Lyamba. I find this ground not proven.

371. Unrelated to the grounds pleaded in the petition I note 595 ballot papers placed in the box with 529 names on the roll. The Presiding Officer attached a report to the form 58 claiming that the Returning Officer had allocated another 60 ballot papers because representations were made to him before the elections to the effect that there were a large number of people who had missed out getting their names on the roll. The record of ballot papers, boxes and serial numbers of ballot papers issued at the pre-count at Wabag attached to the affidavits of Matthew Lale, Reuben Sei and Noel Sandal shows total ballot papers issued to Yumbis was 568. So there is an unexplained discrepancy of 28 ballot papers stuffed in the box.

372. Paragraph D1 of the Petition alleges that at Taitenges, 768 ballot papers, polling commenced on the 4 July 2000 9 a.m. and was closed by security personnel at 2:30 p.m. when only 372 persons had cast their vote and another 396 that were yet to cast their vote. Hence it is alleged 396 voters were denied their constitutional right to cast their vote.

374. Paragraph D2 of the Petition alleges that polling at Kitali commenced on the 4th of July 2007 at about 9 a.m. and was closed by security personnel around 2 p.m. when 358 voters had voted and another 317 votes were yet to be cast. It is alleged that 317 voters were denied their right to cast their vote by the early closure of the poll.

375. Don Kain from Kilak village said in his affidavit evidence there was proper polling at Kitali, everyone who was supposed to vote voted.

376. Lee Wilfred Pai, from Murip near Kandep, a schoolteacher at the Porokali community School, said that he was the Assisting Presiding Officer for Kitali in the 2007 elections. He and his team set up the polling booth, but most of the voters were not present, so after discussions with the community they decided to postpone polling until 4th July 2007. The next day 4th July, polling commenced at about 8:30 AM. Polling was proceeding well. Suddenly a fight broke out between supporters of Be Bepo and Herman Anep and some ballot papers stolen. 358 people cast their votes. And 70 ballot papers were unused because 312 voters were not present to vote. At the end of polling there were no people standing around saying that they had not voted and wanted to vote.

377. A cursory glance at the common roll used for Kitali with the application of a little common sense and logic indicates that the Second Respondent’s evidence is most unlikely to be true. For the simple reason that the roll lists the names of the electors alphabetically. The names of those who have voted have been crossed off from the roll in alphabetical order. Voting stopped in the middle of the electors with a 2nd name, family or surname beginning with the letter "N". Something clearly happened to stop the voting at that point. It is just not credible and consistent with the documentary evidence to say that everyone who wanted to vote had voted and there were no people standing around claiming to vote. Hundreds of people do not automatically organise their lives alphabetically. At voting time organising the voters present alphabetically takes some work on the part of the village leaders. It is incredible to say that the people who were not there, the people away working in Porgera, were only those with surnames starting with "N" and letters after that in the alphabet. And that is the effect of the Respondents evidence in chief.

378. Wilfred Pai the Presiding Officer said in his affidavit "some supporters came into the polling Booth and took some ballot papers". In his oral evidence he said 247 papers were taken away, a little less than half the number issued to that polling place, and a somewhat different concept than "some" ballot papers.

379. In his evidence in chief Don Kain said "all the voters that were supposed to vote voted". In cross-examination he was asked Q: "the next day did all 670 turn up? Answer: they came. Q: did they all vote? Answer: some did not because we got disturbed.... Q: by then half did not vote? Answer: those who did not vote would have voted if there was no disturbance. Q: when did the argument start? Answer: 3 PM. Q: between 3 PM and 5 or 5:30 PM what do you do? Answer: I was observing what was happening. The left over ballot papers were taken out and torn up and we locked the box and we and the 2 policemen waited. "

380. So I have to conclude, consistently with that evidence and what the common roll is telling me, that the disturbance occurred when there were still people wanting to vote and they did not get the opportunity to vote. And that the number who did not get the opportunity to vote was the difference between the 358 who did vote and the 670 who turned up to vote, that is 312.

381. It is difficult to know what to make of the evidence of Don Kain that the Presiding Officer tore up the leftover ballot papers. This seems to me to be improbable. Perhaps he saw posters or other non-accountable electoral material being torn up.

382. On the other hand I also consider the evidence of Jack Lyamba improbable, that the security forces would take it on themselves to interrupt polling, knowing as they must, that this would be an unlawful act which would be bound to be reported to the DRO.

383. I therefore find that the polling stopped at approximately 3 PM because of the disturbance caused by supporters of candidates who stole 247 ballot papers; and that there was no more polling after that despite the fact that there was 312 persons still seeking to vote.

384. Therefore paragraph 2 of the petition allegation that the polling was stopped by the security officials has not been proven. The balance of the allegation has been proven with the exception that the evidence establishes 312, not 317 voters affected. However, as there is no pleaded and proven allegation of illegal practices or errors and omissions, the evidence does not establish a pleaded ground of illegal practice, which would affect the results of the election.

385. There was a complete failure of the poll in respect of the 312 voters and on the principle approved by the Supreme Court in Apelis v Chan these lost votes can be counted as affected by a breach of s50 of the Constitution.

386. Paragraph E of the Petition alleges that The following Boxes were destroyed or hijacked at the polling places due to the illegal practice committed at the polling places perpetrated by the polling officials and supporters of Don Pomb Polye so were not brought to Wabag Counting Centre.

387. The Petitioner makes no submission on this ground. The pleading in relation to this ground goes no further than I have set out in the previous paragraph. So the pleading in relation to all 5 polling places is pleaded in the alternative. Pleading in the alternative is not permitted. Here the respondents do not know in relation to which polling place it is alleged the box was destroyed or in relation to which it is said the box was hijacked.

388. The pleading in an election petition must plead facts; it cannot plead conclusions of fact and law, unless of course the facts are also pleaded. The allegation of "illegal practice committed" is a conclusion of fact and law. Here no facts are pleaded of the illegal practice. What has been pleaded could not stand as an indictment in criminal proceedings because the facts establishing the elements of an offence have not been pleaded. This ground should have been struck out when I was considering applications pursuant to section 208 (a) of the organic law. I strike it out now.

389. Evidence was called in respect of each of the polling places. There is no point in considering the evidence in respect of this ground because there are no relevant pleaded facts which it could prove.

390. Ground E paragraph 5 of the Petition pleads that the Ballot Boxes listed in the table below containing 5223 Ballot Papers were not counted because the Returning Officer said that the Presiding Officers for each of these rest houses were not present to give a report of the polling to enable these boxes to be counted, because the Presiding Officers were initially not allowed to take part in the counting by the Returning Officer, so they had left after waiting.

391. Rubin Sei said he was at the scrutiny and count and the District Returning Officer Naipet Keae said that the above-mentioned boxes were not to be counted. The reason he gave was that the Presiding Officers were not present. No other reason was given. When each box was called the Presiding Officer for each box was called and was not present. The Presiding officers were not present because they were not issued passes to enter the counting room. He gave no evidence of actually seeing any named Presiding Officer being refused entry, he just made a general allegation.

392. Smith Lambin said he was present on the first and 2nd days of counting and the District Returning Officer said that the 8 boxes would not be counted because the Presiding Officers were not present.

393. Henry Kyakas, the Election Manager for Enga said that he was present at the scrutiny and count on the last day. On that day there was no counting. The disputed boxes were produced. As each box was produced the Presiding Officer gave his report that the box had been hijacked. Therefore they were not counted for that reason.

394. When one looks at the other evidence concerning proceedings at the counting centre it is clear that, apart from certain persons who were designated as permanent counting centre officers, Presiding Officer's were informed that they would come into the counting centre on the day that their box was being counted and remain for that day to assist with counting. To my mind then applying logic and common sense it would be nothing short of extraordinary that 8 Presiding Officers, who wanted to collect their allowances for the services provided, would be absent on the days that their boxes were to be counted.

395. My impression of Reuben Sei is that he was a man of basic education, earnest, but could easily be confused by the unfamiliar circumstances and surroundings of the counting room.

396. Smith Lambin has had a university education, he said he was being very vocal about objecting to certain boxes and because of this he was struck with one of the counting trays and punched. For these reasons I deduce that he was in a somewhat agitated state in the counting room and his powers of observation and accurate recollection thereby reduced. He also gave evidence that in the early part of the counting, together with other scrutineers he was composing and drafting a letter of protest to the Election Manager. I assume, although there is no evidence, that this took place outside the counting room. But even if it took place inside the counting room his attention was clearly elsewhere at the time and he was not focused on the counting process. The evidence of Smith Lambin about the exclusion of the 8 boxes was in general terms and very unconvincing, particularly as he could not accurately name the polling places for the excluded boxes and mentioned polling places which had nothing to do with the issue.

397. The evidence of Reuben Sei in cross-examination that each of the 8 boxes was brought in to the counting room on the last day and " when each box was put on the table, the District Returning Officer asked if the Presiding Officer was there, and there was no Presiding Officer to present the box, the District returning Officer said to set it aside, not to be counted" makes no sense and it is unbelievable. It is completely contrary to the evidence of all of the Presiding Officers, and also the evidence of the Election Manager as to what happened on the last day.

398. For those reasons I prefer the evidence of the Respondents on this ground and I find that the Presiding Officers or Assistant Presiding officers were present in the counting room on the appropriate days between the 11th and of 14th of July 2007 and objected to their boxes being counted on the basis that there was no proper polling because the boxes had been hijacked before or after the polling. The DRO did not set the boxes aside because the Presiding Officers were not present. He set the boxes aside, after hearing the reports from the Presiding or Assistant Presiding Officers, so that a final decision could be made in consultation with senior electoral officials on the 16 July 2007.

399. The events of 16 July 2007 in the counting room were related by the Petitioner's witness Henry Kyakas, the Election Manager for Enga Province and he said that there was a special meeting on that day in the counting room. He was present, as were the Assistant Police Commissioner, the PPC the Deputy Electoral Commissioner, Mr Boki Raga, and their lawyers, the Electoral Committee of Wabag, the Assistant Returning Officers and the concerned Presiding Officers. Each of the 8 boxes was again presented and the Presiding Officer or Assistant Presiding Officer gave his evidence as to why the box should not be counted. Each of the Presiding Officers and Assistant Presiding officers has given evidence in similar terms. None of this evidence is contradicted by any of the evidence led by the Petitioner, apart from the evidence of Rubin Sei referred to above.

400. Even if the evidence of Reuben Sei and Smith Lambin was accurate, and I do not think it is, it is clear that any announcement during the period the 11th to 14 July 2007 by the Returning Officer that any of the 8 boxes would not be counted because the appropriate Presiding Officer was not there, would be merely a deferral of the decision which the Returning Officer is empowered to make under section 153A of the organic law, and not a final decision, because that final decision was made on the 16 July 2007.

401. Therefore I conclude that the Petitioner has failed to prove the pleaded facts.

402. For those reasons also the question of whether the Returning Officer made a decision properly in accordance with Section 153A is not reached, contrary to the submission for the Petitioner. A specific factual circumstance was pleaded in the Petition and I have found that the factual circumstance is not proven. The petitioner is bound by his pleading in the petition and I do not consider that he can now expand what was pleaded by bringing in legal argument on the terms of the organic law based on facts not pleaded: Kopaol v Embel, SC727 at page 16. The Petitioner did not plead that "the Returning Officer failed to declare his opinion that the ballot box was tampered with and the integrity of the ballot papers in it were compromised" or "failed to declare his opinion that the ballot papers in the box were not lawfully cast" or similar. He chose to narrow his complaint down to the specific facts on which he alleged the Returning Officer made his decision, and now that I have found that it was not the ground on which the Returning Officer's decision was made, the matter cannot be taken any further. To do so would be to amend the petition to a broader pleading. It would take the evidential enquiry into what the DRO in fact did rather than confine it to an investigation into the question of whether the allegations of what he did were true or not.

403. During the trial I allowed evidence to be called about what actually happened to each of those disputed 8 boxes, although on reflection I later considered that this evidence was probably irrelevant to the ground pleaded. Nevertheless, if I am wrong on my conclusions that the Petitioner cannot argue that the Returning Officer did not apply the provisions of section 153A of the organic law, then I am satisfied that the evidence called by the Respondents in respect of the 8 disputed boxes conclusively proves that those boxes were hijacked and that there was good reason to believe either that there contents were stuffed or tampered with.

404. I note, with respect, what Justice Cannings has had to say in the case of Paias Wingti v Kala Rawali and Tom Olga (2008) N3286 about applying the administrative law rule developed in Papua New Guinea that "no written reasons = no good reasons. I have not applied that Rule in respect of this ground of the petition because:

(1) It was not pleaded in the Petition that the Returning Officer failed to give reasons in writing for rejecting a box from counting, so that the Respondents did not have appropriate notice of the issue;

(2) This was not a case where oral reasons were given for rejecting a box then the matter ‘swept under the carpet’. Half a day was set aside for a special meeting attended by senior officials of the Second Respondent to hear the evidence in relation to the 8 boxes;

(3) The election petition jurisdiction is a special statutory jurisdiction and I am not satisfied, with respect, that it is appropriate to apply to the interpretation of those laws the rules of underlying law developed in the inherent jurisdiction of the Court.

405. Finally, under the heading "Background" in part A of the Petition the Petitioner makes a number of general allegations about the manner in which the election was conducted. I do not regard those as being grounds and consequently I have not addressed them in this decision.

Steeles Lawyers: Lawyers for the Petitioner
Paulus Dowa Lawyers: Lawyers for the First Respondent
Nonggorr and Associates: Lawyers for the Second Respondent

Polling Place	Ballot Box	Total Ballot Papers Issued	First Preference Votes for First Respondent
Kolopa 1 (Kolopa)	ENG 012	542	541
Kolopa 2 (Laka)	ENG 041	481	481

Polling Place	Ballot Box	Ballot Papers Issued	First Preference Votes for the First Respondent
Kambia 3 (Koloa)	ENG 0051	548	543

Polling Place According to Returning Officer at Paragraph 29 (iii) of Sei's affidavit	Polling Place in Mr Sei's Contemporaneous Notes
Pura 1 – Mamodai	Mamodai
Pura 2 – Kolopen	Sangin
Pura 3 – Sangin	Kolopen

Reuben Sei	Matthew Lale
Pura 1 Mamodai - box 10	Pura 1 Mamodai - box 10
Pura 2 Kolopen - box 39	Pura 2 Sangin - box 39
Pura 3 Sangin - box 52	Pura 3 Kolopen box 52

Nambuli Magekali 's list	Matthew Lale's list
Timothy Epout	Timothy Kalo
Apel Kalman	Apel Kaiman
Toel Kaup	Tole Pakipen
Eliza John	John Mangi

Name Used at Distribution	Small Place Name Used at Distribution	Box Number	Number of Ballot Papers Issued	Actual Ward Name	Electors Allegedly on the Role	Number of Votes Cast
Pura 1	Mamodai	0010	210	Sangin	205	541
Pura 2	Kolopen	0039	393	Mamodai	308*	210
Pura 3	Sangin	0052	541	Kolopen	536	540

Polling Place	Ballot Box Number
Nerep (Nerap)	0056
Yapum	0022
Muyen	0018
Imipiaka	0063
Walupim 2	0020

Polling Place	Ballot Box Number	Ballot Papers Issued
Wert 1	0001	735
Wert 2	0031	356
Mumundi 1	0002	664
Mumundi 2	0032	319
Pulya/Magere (Supi 3)	0033	1008
Lumbipaka	0058	757
Maru	0055	646
Waipi	0054	738
Total:		5223

National Court of Papua New Guinea

Manase v Polye [2009] PGNC 101; N3718 (14 August 2009)