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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 55 0F 2007
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTION
PAIAS WINGTI
Petitioner
V
KALA RAWALI, PROVINCIAL RETURNING OFFICER
First Respondent
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
TOM OLGA
Third Respondent
Mt Hagen: Cannings J
2009: 12, 13, 14, 15, 16, 21 January
RULING
ELECTIONS – recount of ballot papers for electorate – effect of errors or omissions made during recount – whether errors or omissions made during recount but not relied on in election petition, are good grounds on which to avoid the result of an election – whether National Court has power to order a further recount – whether errors or omissions affected result of election – Organic Law on National and Local-level Government Elections, Section 218(1).
Facts:
The National Court ordered the recount of ballot papers for an electorate. The result of the recount was that the candidate originally declared as elected – the third respondent – again secured the most votes, but by a reduced margin. The petitioner moved the court not to ratify the result of the recount and instead declare that the third respondent was not duly elected, that the election was absolutely void and that there should be a by-election. The third respondent, supported by the first and second respondents, agreed that there were some errors and omissions made during the recount but disagreed on the nature of the errors and their effect, arguing that the errors disadvantaged the third respondent. It was also submitted that the person in charge of the recount was biased against the third respondent. The respondents submitted that the court should ratify the result of the recount or set the result of the recount aside and go back to the original count; in either case the third respondent should be confirmed as being duly elected. In the alternative, it was submitted that a further recount could be ordered.
Held:
(1) A number of errors or omissions were committed in connection with the 2008 recount:
(a) 1,210 ballot papers in Keltiga ballot box No 0386, which the Court ordered be counted, were not located or counted;
(b) 1,877 ballot papers were incorrectly rejected as informal for being initialled on the front;
(c) 511 ballot papers unaccounted for @ exclusion No 22;
(d) 46 extra ballot papers were introduced @ exclusion No 24;
(e) 465 ballot papers were miscounted in the final tally in form 66B.
(2) The person in charge of the recount was not biased against the third respondent and was not guilty of any illegal practices.
(3) As the total number of ballot papers affected by the proven errors or omissions was greater than the winning margin, and substantially so, the errors or omissions affected the result of the election and it was open to the court under Section 218(1) of the Organic Law, to declare that the election be "avoided".
(4) As there was no available means by which to check the effect of all of the affected ballot papers on the result, and as a recount of specific categories of affected votes or a total recount would be necessarily inconclusive, and as the winning margin on the recount was small (less than one per cent), the court, being guided by the substantial merits and good conscience of the case under Section 217 of the Organic Law, in the exercise of its discretion under Section 212(3) of the Organic Law, thought it just and sufficient to declare:
(a) under Section 212(1)(f) of the Organic Law, that the third respondent was not duly elected; and
(b) under Section 212(1)(h) of the Organic Law, that the 2007 election was absolutely void.
(5) Effect shall be given to the court's decision as follows:
(a) The third respondent shall, by virtue of Section 226(a) of the Organic Law, cease to be a member of the Parliament; and
(b) A new election shall, by virtue of Section 226(c) of the Organic Law, be held.
Cases cited:
Baki Reipa and Electoral Commission v Yuntivi Bao [1999] PNGLR 232
Ovako Juvire v Bonny Oveyara and Andrew Trawen (2008) N3333
Re Ovako Juvire v Bonny Oveyara and Andrew Trawen, SCR No 22 of 2008; 03.12.08
SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441
SCR No 61 of 1998; Re Ambane and Electoral Commission v Sumuno (1998) SC565
SCR No 8 of 1999; Maino v Avei and Electoral Commission (2000) SC633
Wingti v Rawali, Electoral Commission and Olga (2008) N3286
Law
In this judgment, the Organic Law referred to is the Organic Law on National and Local-level Government Elections.
MOTIONS
This is a ruling on two motions regarding a recount of votes ordered as a result of an election petition.
Counsel
A Manase, for the petitioner
A Kongri, for the first and second respondents
H Nii, for the third respondent
21 January, 2009
1. CANNINGS J: This is a ruling on two motions regarding a recount of votes for the seat of Western Highlands Provincial following the 2007 general election.
2. In the original count the petitioner, Mr Paias Wingti, was runner-up to the successful candidate, the third respondent, Mr Tom Olga:
3. Mr Wingti filed a petition disputing the election of Mr Olga on two grounds:
4. I heard the petition and handed down judgment on 14 March 2008. I upheld the two grounds of the petition and ordered a recount of ballot papers (Wingti v Rawali, Electoral Commission and Olga (2008) N3286).
5. Mr Olga sought a Supreme Court review of that order. But the review was dismissed. The recount went ahead. It started on 3 November 2008 and concluded on 13 December 2008. The person I appointed to conduct the recount, Mr Alwynn Jimmy, has presented a report to the Court on how the recount was conducted. The result was:
6. The first motion regarding the recount was filed by Mr Wingti. He seeks declarations that Mr Olga was not duly elected and that the whole election is absolutely void and an order for a by-election. He says that a number of errors and omissions were committed by Mr Jimmy or other counting officials, which affected a greater number of votes than the third respondent's winning margin.
7. The second motion is by Mr Olga who seeks an order confirming that he was duly elected as, and is, the member for Western Highlands Provincial; or, in the alternative, that there be a further recount. The first and second respondents – Mr Kala Rawali (the returning officer for the original count) and the Electoral Commission – support Mr Olga's motion. The respondents agree with the petitioner that some errors and omissions were made during the recount but disagree as to the nature of the errors and their effect, arguing that the errors disadvantaged the third respondent. It was also submitted that Mr Jimmy was biased against Mr Olga, that the recount was affected by illegal practices, including bribery of counting officials, and that Mr Olga was denied legitimate votes.
8. Both motions have been heard together.
THE ISSUES
9. They fall into three categories:
WERE ERRORS OR OMISSIONS COMMITTED DURING THE COURSE OF THE RECOUNT?
10. The petitioner alleged that seven sorts of errors or omissions were made in connection with the recount, making the result unreliable. Some of them were identified by Mr Jimmy in his report to the Court.
11. The respondents agree with the petitioner as to the existence of some of these errors. They also assert that other errors – not identified by Mr Jimmy or by the petitioner – occurred in the exclusion phase of the recount.
12. The alleged errors highlighted by the petitioner are numbered (1) to (7) below. Those relied on by the respondents are numbered (8).
1 1,210 ballot papers in Keltiga ballot box No 0386 allegedly not counted.
13. Keltiga ballot box No 0386 was one of the five contentious ballot boxes not counted in the original count. It was one of the boxes the subject of ground 1 of the petition. The petitioner claims that it contained 1,210 ballot papers. They were not counted as the Hagen Open returning officer, Mr Paul Goimba, rejected all Keltiga ballot boxes as the ballot papers were initialled by four polling officials and he took the view that polling had been conducted illegally. The Provincial Returning Officer, Mr Kala Rawali, acted on Mr Goimba's position and rejected Keltiga ballot box Nos 0385 and 0386. No 0385 was counted belatedly and contained 900 allowable ballot papers. No 0386 was not counted. I determined that that was an error as Mr Rawali did not make an independent decision not to count the box, proper procedures for ruling on objections to ballot boxes were not followed and there were no good reasons for not counting the box (see Wingti v Rawali, Electoral Commission and Olga (2008) N3286, paras 218-242).
14. My order of 14 March 2008 specified that the recount must include ballot papers in the five contentious ballot boxes. Besides Keltiga No 0386, the other ones – not counted in the original count, but counted in the recount – are:
15. Mr Jimmy has reported to the Court on the steps he took to locate box No 0386. First, on 14 November 2008, he found a ballot box labelled 'Keltiga Distributed Provincial Ballot Box', but it contained Hagen Open ballot papers only. Secondly, after a court order on the afternoon of 14 November 2008 (which required him to conduct a further search of the containers located outside the Mt Hagen police station aimed at finding ballot papers relating to the Keltiga ballot box No 0386), he, on 15 November 2008, found a box labelled 'Disputed Provincial Ballot Papers', but it contained Hagen Open and Jimi Open ballot papers. He eventually found the actual provincial ballot box No 0386 in a container holding Anglimp-South Wahgi Open ballot boxes. When he opened it, it was empty. No ballot papers for this ballot box have been found.
16. The petitioner argues that illegal practices must have been committed by someone, resulting in the ballot papers going missing.
17. The respondents dispute that proposition and invite the court to find that the ballot papers were actually included in the original count. They point out that on the last day of the original count, 6 August 2007, the Electoral Commission's lawyers, Nonggorr & Associates, wrote to Mr Wingti's then lawyers, Mawa Lawyers, advising that Keltiga ballot box No 0386 had already been counted and that Keltiga ballot box No 0385 was then being counted. They concede that the 2007 tally sheets (forms 66A and 66B) do not show that box No 0386 was counted, but submit that that can be explained by there being, as the court found in its decision of 14 March 2008, material discrepancies in the tally sheets – this being one of them. The respondents point out that the petition did not plead that the ballot papers in box No 0386 were missing or destroyed. There is no evidence that the ballot papers in the box were unlawfully removed or tampered with. Nor is there any evidence that the containers at the police station were tampered with. The containers were welded shut pursuant to court orders and this left no room for anyone to tamper with them.
18. I agree with the respondents that, given the evidence about the steps taken to secure the ballot boxes in containers that have been welded shut and kept outside the Police Station since August 2007, it is hard to believe how anyone could have got into the containers and removed or destroyed any ballot papers.
19. However, I do not agree that it is reasonable to draw the inference that the ballot papers from box No 0386 were included in the 2007 count. The tally sheets do not show that ballot box No 0386 was counted, either when the primary votes were counted (count Nos 1 to 639) or on the last day of counting, 6 August 2007, when three disputed ballot boxes were brought in (count Nos 640 to 642). The material discrepancies I found that existed in the tally sheets were between the final figures in Form 66A and the opening figures in Form 66B. Form 66A was the tally sheet showing distribution of first preference votes received by each of the 26 candidates after each of the 639 counts. It gave a progressive tally of votes and concluded with a total of first preference votes for each candidate. The totals were to be posted to Form 66B, the tally sheet showing the distribution of preference votes, the number of exhausted votes and the order of each exclusion or elimination. However, none of the total figures matched. That was the basis of the finding about material discrepancies. It provides no basis on which it can be inferred that the ballot papers in box No 0386 were counted (see Wingti v Rawali, Electoral Commission and Olga (2008) N3286, paras 293-314).
20. Mr Rawali gave evidence that after making his decision not to count either of the Keltiga boxes, he was directed to count them. But when he asked the counting officials to bring them in for counting, they only brought box No 0385. They could not find box No 0386 (see Wingti v Rawali, Electoral Commission and Olga (2008) N3286, paras 133, 142, 143). This is direct evidence that the papers in box No 0386 were not counted. It outweighs the indirect evidence in the letter from Nonggorr to Mawa that No 0386 was counted.
21. The presiding officer at Keltiga was Mr Raphael Agua. He gave evidence at the trial that voting took place without incident. He submitted a return showing that 1,210 ballot papers were issued and used (see Wingti v Rawali, Electoral Commission and Olga (2008) N3286, paras 41-46). It was not an issue of fact that was disputed at the trial. I conclude that 1,210 ballot papers were cast at Keltiga, belonging to ballot box No 0386. They have not been counted, either in the original count in 2007 or in the 2008 recount.
22. I do not accept the petitioner's argument that illegal practices were committed regarding the ballot papers in box No 0386. There is insufficient evidence on which to draw the conclusion that the ballot papers were removed or destroyed.
23. The more likely explanation is that the ballot papers were put into a wrong ballot box, in the same way that – as discovered during the searches for ballot box No 0386 – ballot papers for Hagen Open and Jimi Open were put into Provincial ballot boxes. Clearly, mistakes have been made in the storage of ballot papers for electorates in the Western Highlands Province.
24. I am satisfied that the failure to count the 1,210 ballot papers constitutes an error in the recount. Order No 2 of 14 March 2008 – "the recount must include ballot papers in the five contentious ballot boxes" – has not been complied with. It cannot be said that the ballot papers in ballot box No 0386 were counted as zero.
25. I consider that this error is attributable to the Electoral Commission which, in the original count, failed to take adequate steps to secure ballot box No 0386 and the ballot papers in it.
2 17,137 ballot papers allegedly signed by the same presiding officer.
26. Mr Jimmy reported that during the recount he discovered 17,137 ballot papers for candidate Mr Wai Rapa had been signed by one presiding officer, which is a physical impossibility. He also observed that all first preference votes were marked in blue pen and all second and third preferences on these ballot papers were marked in black pen. In his opinion this was evidence of corruption. Mr Manase, for Mr Wingti, submitted that this was a matter affecting the integrity of the entire electoral process.
27. I agree with Mr Manase that, if it were proven that this number of ballot papers had been initialled by the one presiding officer, the natural inference would be that illegal practices had been committed and the integrity of the election would necessarily be seriously impaired. However, there is insufficient evidence of the accuracy of Mr Jimmy's observations. None of the 17,137 ballot papers were introduced into evidence so the Court did not get to see what Mr Jimmy was talking about. Mr Jimmy did not raise the allegation with anyone during the course of the recount so the respondents were caught by surprise when he made the allegation in his report to the Court. As Mr Nii pointed out, Mr Jimmy is not a handwriting expert so he may well have been mistaken in his observations.
28. I conclude that there was no error, omission or illegal practice committed in relation to the 17,137 ballot papers allegedly initialled by the same presiding officer.
3 1,877 ballot papers declared informal for being initialled on the front.
29. Mr Jimmy reported that he declared 1,877 ballot papers informal as they were initialled by presiding officers on the front of the ballot papers. This is contrary to Section 126(2) of the Organic Law, which states that "the initials of the presiding officer shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates".
30. Mr Manase submitted that Mr Jimmy erred, as the Supreme Court recently decided in Re Ovako Juvire v Bonny Oveyara and Andrew Trawen, SCR No 22 of 2008; 03.12.08, that ballot papers should not be rejected as informal for this reason. The respondents agreed with Mr Manase's submission. They pointed out that the Supreme Court upheld the National Court decision of Sevua J in the election petition for the Okapa Open seat in the 2007 general election: Ovako Juvire v Bonny Oveyara and Andrew Trawen (2008) N3333.
31. Mr Jimmy was Provincial Election Manager in that case and had taken the view that ballot papers initialled on the front were not informal. He was cross-examined as to why he had taken a different view in the Western Highlands recount. He said that in the Okapa Open case he knew that the ballot papers were genuine but that in the Western Highlands recount he was suspicious about the authenticity of the ballot papers so he decided to reject them as informal.
32. Whatever the merits of that explanation, I agree with all parties that, as a matter of law, Mr Jimmy committed an error by rejecting the 1,877 ballot papers.
4 511 ballot papers unaccounted for @ exclusion No 22.
33. Mr Jimmy reported an anomaly in the counting when exclusion No 22, of candidate Mr Tom Pu Watinga, was carried out. After distribution of preferences for exclusion No 21, Mr Watinga had a progressive tally of 36,458 votes. However, when he was excluded, only 35,947 ballot papers were accounted for.
36,458 – 35,947 = 511, which is the number of missing ballot papers.
34. Mr Jimmy was unable to say how this discrepancy arose. He stated that "these 511 ballot papers may have been removed from the counting illegally or placed in some candidate's box and not counted to deny the recipients of those votes".
35. Mr Manase submitted that this was an error in the recount.
36. Mr Kongri and Mr Nii agreed that it was an error but disagreed as to its consequences. They submitted that, in fact, the 511 votes belonged to Mr Olga. This proposition was based on a comparative analysis of the distribution of preferences at exclusion No 22 in the 2007 count and the 2008 recount.
37. Mr Kongri pointed out that in the 2007 count Mr Olga received 9,496 preference votes at the 22nd exclusion, but in the 2008 recount he only received 8,934 votes, 562 fewer than in 2007. Of the other remaining candidates, Mr Jack Jimben lost 22 votes, Mr Wingti picked up 41 votes and Wai Rapa picked up 199 votes. Mr Kongri contended that this shows that the 'missing' 511 votes or at least 489 of them (as Mr Jimben lost 22 votes) must belong to Mr Olga.
38. I do not accept this proposition, for five reasons.
39. First, there is bound to be an element of human error in both the 2007 count and the 2008 recount, so it is of limited value to draw comparisons between the two counts.
40. Secondly, it is numerically impossible to draw comparisons between the 2007 figures and the 2008 figures as the exclusions in each count were based on different bundles of allowable ballot papers. In 2007, candidates were excluded on the basis of the primary votes collected under count Nos 1 to 639, the total allowable ballot papers at the end of form 66A being 413,500; which was posted to form 66B as 411,918. As I pointed out in Wingti v Rawali, Electoral Commission and Olga (2008) N3286 at paras 293 to 314, the bundle of allowable ballot papers did not include those in the three ballot boxes brought to the counting centre on 6 August 2007. Nor, obviously, did it include the ballot papers in the four ballot boxes counted by virtue of my order of 14 March 2008. In 2008, the bundle of allowable ballot papers for distribution at the end of the primary count included those that were in those seven ballot boxes, plus some ballot papers discovered in the containers while searching for Keltiga box No 0386.
41. Thirdly, the comparison of the 2007 and 2008 figures in Mr Kongri's submission – where he asserted that there was a difference of only 50 ballot papers between those counted in 2007 and those counted in 2008 – is flawed. Mr Kongri submitted that in 2007, the total number of ballot papers (including informal ballot papers) counted at the end of count No 639, as per the final page of form 66A, was 416,949. He compared that with the total number of ballot papers (including informal ballot papers) counted at the end of count No 59, in 2008 (noting that count Nos 1 to 59 comprised all ballot papers counted in 2007), which is 416,899. The difference, 416,949 – 416,899 = only 50 votes. The problem is that the 2008 figure includes ballot papers in the three ballot boxes brought in for counting on 6 August 2007.
42. There were 3,311 of them. They were not included in count Nos 1 to 639. When they are deducted from the 2008 figures, the actual ballot papers for count Nos 1 to 639 are: 416,899 – 3,311 = 413,588. So the correct difference between the 2007 and 2008 figures is not 50, but 3,361. That is a substantial difference, which underlies the lack of utility in comparing the 2007 and 2008 figures.
43. Fourthly, the 2007 figures are unreliable for the reasons given in my judgment of 14 March 2008.
44. Finally, it is unduly speculative to conclude that the 511 missing ballot papers contained votes for Mr Olga or any other candidate.
45. I conclude that the discrepancy of 511 ballot papers at exclusion No 22 is an error in the recount and that it cannot be determined who those votes belonged to.
5 46 extra ballot papers introduced @ exclusion No 24.
46. Mr Jimmy reported an anomaly in the counting when the final exclusion, No 24, of candidate Mr Wai Rapa, was carried out. After distribution of preferences for exclusion No 23, Mr Watinga had a progressive tally of 78,657 votes. However, when he was excluded, 78,703 ballot papers were distributed: 46 more than there should have been. Mr Jimmy was unable to say how this discrepancy arose. He stated that "I am somewhat perplexed at this increase in ballot papers as the progressive tally of 78,657 had been confirmed more than once. This never happens. It means that extra ballot papers were brought in and included in the count or officials may have deliberately increased the figures during the tallying".
47. Mr Manase submitted that this was an error in the recount. Mr Kongri and Mr Nii made no detailed submissions to the contrary.
48. I conclude that the discrepancy of 46 ballot papers at exclusion No 24 is an error in the recount and that it cannot be determined who those votes belonged to or which candidate may have benefited from the distribution of those votes.
6 1,071 ballot papers allegedly missing @ exclusion No 24.
49. This is an alleged error relied on by the petitioner. It is not an anomaly identified in Mr Jimmy's report and the respondents do not agree with it.
50. Mr Manase asserts that an error was made in distribution of preferences at exclusion No 24, which resulted in Mr Wingti losing out on 1,071 votes. His argument is based on the figures in count No 22 in the primary count, which he submitted was a count of preference votes for Mr Wingti together with the primary votes from the last three boxes counted on 6 August 2007. I find the argument convoluted and speculative and based on the unproven premise as to the specific contents of the ballot box counted at count 22.
51. I find that no error was made in the manner contended for.
7 465 ballot papers allegedly miscounted in form 66B.
52. This is an alleged error relied on by the petitioner. It is not an anomaly identified in Mr Jimmy's report but the respondents agree that it is an error.
53. Mr Manase points out that the last page of form 66B shows that:
However, the figure for 'total ballot papers remaining in count' in form 66B – which should be the total of the last two candidates – is 279,953, which is 465 votes more than there should have been. Messrs Kongri and Nii agreed with Mr Manase's calculations, and so do I. I also agree with Mr Kongri's submission that Mr Jimmy did not give a satisfactory explanation for this discrepancy.
54. I noted when hearing submissions that the sum of the number of extra ballot papers introduced at exclusion No 24 and the number of ballot papers miscounted in form 66B equalled the number of ballot papers that went missing at exclusion No 22. Thus: 46 + 465 = 511. However, this did not appear to assist anybody in reconciling the figures in form 66B.
55. I conclude that the discrepancy of 465 ballot papers on the final page of form 66B is an error in the recount and that it cannot be determined who those votes belonged to or which candidate may have benefited from the inclusion of those votes.
56. I now consider other errors that the respondents claim were made in the recount, to the detriment of Mr Olga.
8 Alleged discrepancies in the exclusion phase of the recount.
57. Mr Nii submitted that the evidence suggests that between 500 and 2,000 votes for Mr Olga are still in the ballot boxes for exhausted ballot papers. He based that proposition on an affidavit by one of Mr Olga's legal representatives at the recount, Mr Justin Talopa, and an analysis of the evidence by Mr Kongri in his submissions, which highlighted the following matters:
(a) At exclusion No 9, of candidate Mr Elias Mai Kombo, there was a dramatic increase in the votes received by both Mr Olga and Mr Wingti compared to 2007. Mr Olga secured 141 more votes than in 2007. Mr Wingti secured 520 more than in 2007.
(b) At exclusion No 11, of candidate Mr Peter Wama, Mr Olga secured 13 fewer votes and Mr Wingti got 5 more than in 2007.
(c) At exclusion No 13, of candidate Mr Joe Goi, Mr Olga secured 21 more votes than in 2007 and Mr Wingti secured 28 more.
(d) At exclusion No 14, of candidate Mr Philip Kapal, Mr Olga secured 5 votes less than in 2007 and Mr Wingti secured 46 more.
(e) At exclusion No 15, of candidate Mr James Kond, Mr Olga secured 299 votes less than in 2007 and Mr Wingti secured 124 more. Because of the big drop in Mr Olga's numbers, his scrutineers requested that Mr Jimmy allow a recheck of the 2,208 ballot papers in the exhausted ballot papers tray. Mr Jimmy responded that he would only allow a recheck if the scrutineers put K50,000.00 on the table, which was shortly afterwards increased to K200,000.00.
(f) At exclusion No 16, of candidate Mr Joe Moka, one of Mr Olga's scrutineers, Mr Paul Kip, found 150 live ballot papers in the exhausted ballot papers tray.
(g) At exclusion No 19, of candidate Mr Patrick Nema, there was a shortfall of 600 votes. A request was made for the votes to be rechecked. A recheck was carried out and it revealed that 118 votes belonging to Mr Olga were bundled in 23s, 24s or 25s, instead of the mandatory bundles of 20 ballot papers. This was confirmed by evidence from Mr Olga's scrutineers. A comparison of the figures for the 2007 count and the 2008 recount shows that Mr Olga received 495 votes less in the recount. Mr Wingti got 61 votes more in the recount. Furthermore, there was a substantial increase, of 691, in the number of exhausted votes. A request by Mr Olga's scrutineers to check the 4,603 exhausted ballot papers was refused. The 691 extra exhausted votes are probably Mr Olga's, it was submitted.
58. As I indicated in my discussion of the 511 missing ballot papers at exclusion No 22, there is little point in drawing comparisons between the 2007 count and the 2008 recount. While the court can appreciate the frustrations experienced at the counting centre when it might have genuinely seemed that there were discrepancies between the 2007 and 2008 results, I consider that those concerns were numerically misguided. I cannot conclude that any errors were made in the way contended for by the respondents.
59. Nor is there sufficient evidence on which to base a conclusion that Mr Jimmy erred by refusing requests for a recheck of ballot papers that he had already declared exhausted. With the benefit of hindsight, it may have been prudent to meet those requests or impose a much lower fee than the amounts he imposed as conditions for rechecking the exhausted ballot papers. Had he done so, the concerns of Mr Olga's scrutineers may well have been allayed. Against that, as Mr Jimmy pointed out in evidence, he was subject to time constraints imposed by the Court. Acceding to the requests would inevitably have delayed the recount and perhaps put him in breach of the Court's orders.
60. I conclude that Mr Jimmy did not act unreasonably and committed no errors in the manner contended for by the respondents.
Conclusion as to errors in the 2008 recount
61. To sum up, the following errors were made:
(a) 1,210 ballot papers in Keltiga ballot box No 0386, which the Court ordered be counted, were not located and counted;
(b) 1,877 ballot papers were incorrectly rejected as informal for being initialled on the front;
(c) 511 ballot papers were unaccounted for @ exclusion No 22;
(d) 46 extra ballot papers were introduced @ exclusion No 24;
(e) 465 ballot papers were miscounted in the final tally in form 66B.
WAS MR JIMMY BIASED AGAINST MR OLGA?
62. The respondents assert that the way in which Mr Jimmy conducted the recount provides evidence of bias, or at least a reasonable apprehension of bias, in eight respects.
63. It was alleged that Mr Jimmy paid bribes to some of the counting officials to get them to put up to 2,000 of Mr Olga's votes in the tray for exhausted ballot papers.
64. A counting official from the Simbu team, Mr Joe Tiene, gave sworn evidence that Mr Jimmy gave him K200.00 on the afternoon of Friday 28 November 2008 at the Airport Resort, Mt Hagen, and told him to do whatever he can at the counting centre to ensure Paias Wingti wins. Other counting officials at the resort told him that they were all on the same side, from which he inferred that they had been given their share. He said that he manipulated the ballot papers and put most of Tom Olga's votes amongst the exhausted ballot papers. At the end of the 18th elimination between 500 and 2,000 of Mr Olga's votes could have been put amongst the exhausted ballot papers. He said he now feels guilty about what he did and feels sorry for Mr Olga.
65. Mr Aina Jamoa, another counting official from the Simbu team, gave sworn evidence that Mr Jimmy gave him K300.00 at the counting centre on the morning of Saturday 29 November 2008, "for his lunch". Later that day, Mr Jimmy told him at the Airport Motel that he was being introduced into Mr Jimmy's special group of boys, from the Goroka team, and that they had to dump Mr Olga's live ballot papers into the exhausted box. Mr Jamoa said that from the 14th elimination, they did as they were told by Mr Jimmy. On Friday 5 December 2008 Mr Jimmy gave him another K200.00, instructing him to continue to reduce Mr Olga's votes by putting them in the exhausted box. On the same day he said Mr Jimmy gave K200.00 to Mr Kua Mogia, a Simbu counting official, who added the tallies and balanced Mr Olga's missing votes by increasing the tally of exhausted ballot papers. He was giving this evidence to free himself from the guilty feeling that has covered him since he started hiding Mr Olga's votes.
66. Neither Mr Tiene nor Mr Jamoa performed well under cross-examination. Their recollection of the details given in their affidavits was vague and evasive. Their demeanour was poor. They were both admitting taking bribes and engaging in corrupt activities, thus admitting that they were persons of little integrity or honesty. Their explanation that they now felt guilty about what they did was unconvincing. None of their evidence was corroborated.
67. Mr Jimmy refuted all the allegations when he gave his oral evidence. He has been an Electoral Commission officer for 30 years. He is the election manager for Eastern Highlands Province. He said he had no ties to any of the candidates. He was a much more convincing witness than Mr Tiene or Mr Jamoa.
68. Mr Nii pointed out that Mr Jimmy's denial of paying bribes was also uncorroborated. No counting officials or any other witnesses came forward to give evidence to support his version of events. That is correct but it was not up to Mr Jimmy or anyone else to disprove the bribery allegations. The onus was on the third respondent, Mr Olga, the party making the allegations, to prove them. He has failed to do so. I reject the allegations as they are unfounded and spurious.
2 Failure to respond to letters from Mr Olga.
69. Mr Nii submitted that Mr Jimmy failed to respond to at least eight letters written to him by Mr Olga or his representatives, which raised various issues about the conduct of the recount. By contrast, when Mr Jimmy received a letter from Mr Wingti's representatives asking for the removal of Mr Kongri, who was the Electoral Commission's legal representative at the recount, he wrote a letter the same day to Nonggorr Lawyers asking them to replace Mr Kongri with another lawyer.
70. Mr Jimmy was cross-examined vigorously over this issue. His explanation – that he did not feel it was proper to be corresponding directly with candidates (as some of the letters were written directly to him by Mr Olga) and that he was an officer appointed by the Court – was, I thought, satisfactory.
71. I find no evidence of bias in the way that Mr Jimmy dealt with correspondence from the candidates or their representatives.
3 Mistakes disadvantaging Mr Olga discovered during the quality check.
72. Mr Nii submitted at the beginning of the quality check (ie the phase of the counting after the initial counting of primary votes, when the primary votes are rechecked before moving on to the elimination phase) one of Mr Olga's scrutineers found that a bundle of Mr Olga's first preference votes had been counted as 114 when in fact it was 214. The shortfall of 100 votes was eventually corrected but was a substantial error, disadvantaging Mr Olga, which would have gone uncorrected, had it not been for Mr Olga's scrutineers.
73. I consider that this is not evidence of bias, but of human error – the sort of error that is inevitable in a counting operation of this size. No inference of bias can reasonably be drawn from what happened.
4 Failure to comply with court orders.
74. On the afternoon of Friday 14 November 2008 in Waigani I dealt with motions by the petitioner and the third respondent regarding the recount. I ordered, amongst other things, that Mr Jimmy conduct a further search for the missing Keltiga ballot box No 0386, that the venue of the recount be changed from Kapal Haus to Kimininga Police Barracks and that an electronic counting system be used.
75. A few days later Mr Jimmy filed his own motion regarding the venue and the counting system, which I upheld; and I set aside my orders regarding those matters.
76. Mr Nii submits that the way in which Mr Jimmy responded to the orders of 14 November shows that he was biased against Mr Olga. He points out that Mr Jimmy set about conducting further searches for the missing Keltiga box immediately after getting the court order – a course of action that was likely to favour Mr Wingti. By contrast, he failed to comply with the court orders about the venue and the counting system – as those orders had been vigorously opposed by Mr Wingti – and instead took the unprecedented step of moving the Court, even though he was not a party to the proceedings, to get the orders set aside.
77. I reject the submission that any aspects of Mr Jimmy's response to the court orders of 14 November show that he was biased against Mr Olga. Mr Jimmy explained in his evidence the steps he took to implement the orders about the change of venue and the counting system. I am satisfied that, logistically, it was going to take some time (more time than I allowed in my orders of the 14th) to implement the orders. He cannot fairly be said to have ignored or deliberately breached the orders. In any event those orders were set aside on 19 November. When I set aside the orders I was satisfied that Mr Jimmy had a good and sufficient interest in the matter and that his motives were genuine. I remain of the same view.
78. I find no evidence of bias in the way that Mr Jimmy dealt with the Court's orders.
5 Reduction in number of scrutineers.
79. On 26 November 2008, just prior to the start of the elimination phase of the counting, Mr Jimmy reduced the number of scrutineers for Mr Olga and Mr Wingti, from four each to two each. He did this unilaterally, Mr Nii submits, against the objection of Mr Olga's scrutineers who advised him that it opened the opportunity for corrupt practices. Mr Jimmy did not relent until after the 22nd exclusion, when the number of scrutineers was increased from two each to six each.
80. Mr Nii asserts that the number of scrutineers was reduced at a critical phase of the counting. A lot of Mr Olga's votes went missing during this period. After the numbers were increased to six each, counting proceeded smoothly and there was little difference between the 2007 and 2008 figures.
81. Mr Jimmy's explanation in cross-examination for reducing the number of scrutineers was that counting was proceeding into the elimination phase and not as many scrutineers, in his view, were required. He wanted to reduce the number of unnecessary people in the counting centre. He was subject to a lot of pressure about the number of scrutineers and eventually he acceded to the request to increase the numbers. He pointed out that under the Organic Law candidates are entitled to only one scrutineer each.
82. I found this explanation satisfactory. I find no evidence of bias in the way that Mr Jimmy changed the number of scrutineers at different phases of the counting.
6 Refusal to allow rechecking of exhausted ballot papers.
83. As outlined earlier in this judgment, Mr Olga's scrutineers at one stage requested Mr Jimmy to recheck the ballot papers in the exhausted ballot papers box. This was at exclusion No 15 when they observed that Mr Olga secured 299 less votes than in 2007. Mr Jimmy responded by insisting that K50,000.00 be paid (soon afterwards increased to K200,000.00) before he would allow any rechecking.
84. In cross-examination Mr Jimmy said that the request was too late. It was not made until the day after the ballot papers had been counted and the figures posted on the tally board. He had been appointed by the court and been given a timetable to keep to.
85. I find Mr Jimmy's explanation generally satisfactory. As I indicated earlier, with the benefit of hindsight, Mr Jimmy should have made a more temperate response to the request. The amounts of money he was talking about seem unreasonable. But he made no error of law in the way that he dealt with the request. I do not consider that his actions provide any evidence of bias.
86. At exclusion No 16 a scrutineer for Mr Olga found 150 of Mr Olga's votes in the exhausted ballot papers tray.
87. By itself, this is not evidence of bias.
88. I have already rejected the proposition that there were 17,137 ballot papers signed by one presiding officer. That observation was made by Mr Jimmy in his report to the Court but there is insufficient evidence to support it.
89. Mr Kongri asserts that this observation was included in Mr Jimmy's report, with the aim of getting those votes excluded from the count. He points out that the very specific number – 17,137 – is found under count No 37 in form 66A. These were primary votes for Wai Rapa, who was the last candidate to be eliminated, at exclusion No 24. His preferences flowed strongly in favour of Mr Olga (23,888) against Mr Wingti (10,215). It would have been beneficial for Mr Wingti to have this batch of ballot papers omitted from the final tally, as it was the flow of preferences from Mr Rapa that swung the result Mr Olga's way.
90. I follow the logic in Mr Kongri's argument but I find that it has no evidentiary basis. I agree that it seems unusual that Mr Jimmy, having identified this very serious irregularity of having so many ballot papers signed by the one presiding officer, would not raise it as an issue during the conduct of the recount. However, I regard his explanation for that – he regarded himself as an officer appointed by the Court with a duty to the Court – as not unreasonable.
91. Mr Jimmy's observation regarding the 17,137 ballot papers is not evidence of bias against Mr Olga.
Conclusion as to alleged bias
92. I have upheld none of the particular allegations of bias. I have considered whether their combined effect gives rise to a reasonable apprehension of bias. However, even applying that test, I dismiss the claim that Mr Jimmy was one-sided or compromised in the way that he conducted the recount.
93. It is clear from the evidence that Mr Jimmy faced considerable challenges – logistical, legal and human – during the course of the recount. Security was a major concern. He had to deal with threats of strike action by counting officials and police officers over claims of unpaid allowances. He was accused of bias and corruption at various stages. There were several court proceedings ongoing, in which the parties were seeking various orders regarding the recount. At one stage, Mr Olga filed a motion seeking orders – which I refused – that Mr Jimmy be removed from his position. The atmosphere within the counting centre was at times tense. Some mistakes were made. Mr Jimmy did not receive consistent support from the Electoral Commission. The Commissioner reprimanded him for taking the court action, which led to the orders of 14 November being set aside. Mr Jimmy was in an invidious position and in my assessment he performed his duties capably in all the circumstances.
94. Besides that, if he were really biased against Mr Olga, it would reasonably be expected that the result of the recount would have been different. But Mr Jimmy reported that Mr Olga secured more votes than Mr Wingti. The result of the recount further undermines the validity of the contention that Mr Jimmy was biased.
95. Having considered all the evidence, the combined effect of the allegations made against Mr Jimmy would not cause a reasonable person with knowledge of the events surrounding the recount to believe that Mr Jimmy was biased.
96. I dismiss the argument that Mr Jimmy was biased or one-sided in his conduct of the recount.
WHAT IS THE EFFECT OF THE ERRORS, OMISSIONS OR ILLEGAL PRACTICES? WHAT ORDERS SHOULD THE COURT MAKE?
97. I repeat that the following errors were made during the recount:
(a) 1,210 ballot papers in Keltiga ballot box No 0386, which the Court ordered be counted, were not located or counted;
(b) 1,877 ballot papers were incorrectly rejected as informal for being initialled on the front;
(c) 511 ballot papers were unaccounted for @ exclusion No 22;
(d) 46 extra ballot papers were introduced @ exclusion No 24;
(e) 465 ballot papers were miscounted in the final tally in form 66B.
98. I have not found that any illegal practices were committed. I have rejected the argument that Mr Jimmy was biased or one-sided in his conduct of the recount.
99. I now address the issue of the significance of the errors that were made and what orders should be made in light of those errors. In doing so, I am not bound by the results of the recount. Nor am I confined by the terms of the petition in determining what is the appropriate order. This was made clear by the Supreme Court's decision in SC Review No 1 of 1990; Re Recount of Votes [1990] PNGLR 441, in which Kapi DCJ stated:
It is clear that the National Court has power to order a recount and the court may satisfy itself of the result of the recount in any way it may deem just. The important thing is that the trial judge must be guided by substantial merits and good conscience without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not.
100. The powers available to the Court are set out set out in Section 212(1) of the Organic Law. There are two main principles that guide the court when deciding which, if any, of those powers should be exercised.
101. First, Section 212(3) (powers of Court) states:
The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
102. Secondly, Section 217 (real justice to be observed) states:
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
103. Having regard to those provisions of the Organic Law and having considered the submissions of all parties, there appear to be five plausible orders available:
I now address the merits of each of them.
1 Confirm the result of the recount.
104. This is the principal relief sought by the respondents. The consequential remedy would be to declare that Mr Olga was duly elected, and to declare that he remains the member for Western Highlands Provincial. Mr Nii pointed out that this would be consistent with the orders sought in the petition, which included:
An order for recount of all ballot papers for the Western Highlands Provincial seat and the candidate with the highest votes after the recount be declared duly elected member of the Western Highlands Province [sic].
105. Mr Kongri focussed on the wording of the order for a recount:
The result of the recount must be presented to the National Court for ratification at a hearing of the Court ...
The recount, as ordered by the Court, has been completed and the result is now before the Court for ratification, ie confirmation.
106. Neither submission persuades me that the Court should simply confirm the result of the recount. I am not confined by the wording of the petition or the wording of my order of 14 March 2008. I have a broad discretion to exercise. Having been satisfied that a number of errors were made in the recount, I am not satisfied that it has thrown up a reliable result. It would not be just to simply confirm the result of the recount. I will not make such an order.
2 Revert to the 2007 count.
107. Mr Kongri and Mr Nii submitted that if the Court was not satisfied with the reliability of the result of the recount, an alternative approach would be to confirm the result of the 2007 count. They point out that, other than the claim that five ballot boxes should have been counted, the main allegation raised in the petition was that errors and illegal practices were committed at the 24th elimination, of candidate Wai Rapa. The recount shows that that allegation was baseless. Mr Rapa's preferences flowed heavily towards Mr Olga in 2008, just as they had in 2007. Because other errors were committed in 2008, which were not issues in the 2007 count, it is submitted that the 2007 count is more reliable than the 2008 recount.
108. I do not accept this submission. Both the 2007 count and the 2008 recount were infected by errors. Neither of the two counts can be regarded as reliable. It is a futile exercise to compare the errors in the two counts and say that more errors were made in one, and therefore conclude that the other should be accepted.
3 Order a recount of specific categories of votes.
109. It would be possible to recount the 1,877 ballot papers incorrectly rejected as informal for being initialled on the front. There was a total of 6,635 informal ballot papers and, logistically, it would seem a straightforward task to identify the 1,877 ballot papers and record the votes in them. But that would still leave the other errors I have identified, uncorrected, so any result obtained from counting the 1,877 ballot papers in isolation would necessarily be inconclusive.
4 Order a further recount of all ballot papers.
110. Mr Manase submitted that this is not an option as the Court has already ordered a recount and the order has been complied with. Section 212(1) of the Organic Law does not provide for more than one recount.
111. I reject this submission as there is nothing in the Organic Law that, expressly or by implication, prevents the court ordering another recount. A further recount is therefore an option available to the Court. Mr Nii submitted that it is a viable option and the only feasible one open to the court, if it reaches the conclusion (as I have done) that neither the 2007 count nor the 2008 recount is acceptable. Mr Nii submitted that if the Court orders another recount, it should order that the electronic counting system be used. This is reputed to be a slower but more reliable system than manual counting, as it reduces the risk of human errors. These are useful and valid submissions.
112. However, I foresee two difficulties that militate against making an order for another recount.
113. First, it would not accommodate the 1,210 ballot papers in the missing Keltiga ballot box No 0386. Without those ballot papers – and so far, all reasonable attempts to locate them have proved fruitless – a further recount will inevitably be inconclusive.
114. Secondly, given the large number of ballot papers that were cast in the election (420,943 according to form 66A in the recount) and the small winning margin (1,004 votes), there is a reasonable probability that another recount will still prove inconclusive. So, after a third count, the Court would probably be faced with a motion for a third recount.
115. I therefore must consider the question of whether the election should be avoided.
5 Declare that the election was void.
116. The Court has power under Sections 212(1)(f) and (h) of the Organic Law to declare that a person who was returned as elected was not duly elected and to declare an election absolutely void.
117. In the exercise of that power the court is constrained by Section 218(1) (immaterial errors not to vitiate election) of the Organic Law, which states:
... an election shall not be avoided on account of ... an error of, or an omission by, an officer which did not affect the result of the election.
118. The test is not whether there is a real possibility that the errors may have affected the result of the election. The test to apply is: did the errors affect the result of the election? Where the means are available to determine the effect of the errors, the Court should utilise the means to determine whether the errors did, in fact, affect the result (SCR No 61 of 1998; Re Ambane and Electoral Commission v Sumuno (1998) SC565).
119. As a general rule, if the number of votes affected by error (or illegal practices) is greater than the winning margin and there are no means available of determining the effect of the errors, the conclusion should be reached that the result was affected by the errors. It is not appropriate for the Court to speculate on the way that votes would be cast in ballot papers that are lost or missing (Baki Reipa and Electoral Commission v Yuntivi Bao [1999] PNGLR 232).
120. If there are no available means of checking the numerical effect of errors, the court is entitled to consider whether in all the circumstances the result of the election was arrived at through an electoral process that was fair, open and democratic. If the electoral process does not meet that standard, it can reasonably be concluded that the result of the election as a whole was affected by the errors (SCR No 8 of 1999; Maino v Avei and Electoral Commission (2000) SC633, per the joint judgment of Los J and Injia J, as he then was).
121. In the present case the number of ballot papers affected by errors is:
1,210 ballot papers in Keltiga ballot box No 0386 +
1,877 ballot papers incorrectly rejected as informal +
511 ballot papers unaccounted for @ exclusion No 22 +
46 extra ballot papers introduced @ exclusion No 24 +
465 ballot papers miscounted in form 66B
= a total of 4,109 ballot papers.
122. The means are available to assess the effect of the error regarding the 1,877 ballot papers incorrectly rejected as informal. However, that would still leave 2,232 ballot papers affected by error. This is 1,228 more than the winning margin, which means there is no way, other than a recount, of ascertaining the effect of some of the errors.
123. But even if a recount were ordered, it could not accommodate the 1,210 missing Keltiga ballot papers.
124. It is those missing ballot papers, combined with the remoteness of the prospect that they can ever be located and counted, that ultimately makes me think the effect of the errors can, in practical terms, not be determined. It is not proper to speculate who would have received the votes in those ballot papers.
125. I therefore conclude that the result of the election was affected by the errors. According to the standards outlined by the Supreme Court in Maino v Avei, the 2007 election for the seat of Western Highlands Provincial, and specifically the counting of votes, was not – because of the errors that occurred – fair, open and democratic.
126. In these circumstances, being guided by the substantial merits and good conscience of the case under Section 217 of the Organic Law, the fairest and most appropriate course of action to take is to set in train a new election. In the exercise of the discretion of the National Court under Section 212(3) of the Organic Law, I think it is just and sufficient, to declare:
EFFECT OF ORDERS
127. I point out that under Section 226 (effect of decision) of the Organic Law, effect shall be given to the Court's decision as follows:
ORDER
(1) It is declared that:
(a) under Section 212(1)(f) of the Organic Law, the third respondent, Mr Tom Olga, was not duly elected; and
(b) under Section 212(1)(h) of the Organic Law, the 2007 election for the seat of Western Highlands Provincial was absolutely void.
(2) The question of costs is reserved for further hearing.
Ruling accordingly.
___________________________
Steeles Lawyers: Lawyers for the Petitioner
Nonggorr & Associates: Lawyers for the 1st and 2nd Respondents
Harvey Nii Lawyers: Lawyers for the 3rd Respondent
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