Bungo v Robin [2011] PGNC 1; N4195 (17 January 2011)

N4195

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 220 OF 2009

SIWI BUNGO
Plaintiff

V

JOHN ROBIN
First Defendant

ANDREW TRAWEN
Second Defendant

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Third Defendant

Kimbe: Cannings J
2010: 26, 28 January,
2011: 17 January

JUDGMENT

ELECTIONS – local-level government elections – judicial review by National Court of decision of District Court dismissing election petition – whether District Court's failure to address grounds of petition was lawful.

The plaintiff was runner-up in a local-level government election. He filed a petition challenging the result of the election in the District Court, relying on alleged errors by electoral officials in both the polling and the counting. At the time set for hearing the petition there was an incident in the courtroom. The plaintiff indicated that he wanted the presiding Magistrate to disqualify himself, and left the courtroom. The Magistrate was concerned about the manner in which the plaintiff addressed the court and issued a warrant for the arrest of the plaintiff and his supporters, charged them with contempt of court, convicted and fined them. The Magistrate dismissed the petition without addressing its merits. The plaintiff sought judicial review by the National Court of the decision to dismiss the petition.

Held:

(1) When there is a dispute of fact over the proceedings of the District Court, the presumption of regularity regarding judicial proceedings, should be applied: the proceedings are presumed to have been conducted properly and the court's records are presumed to be accurate; thus, any person challenging that record has the onus of proving that it is incorrect.

(2) Here, the plaintiff failed to prove that the proceedings took place other than as set out in the official record of the District Court.

(3) The official record of the District Court showed that the plaintiff acted inappropriately and contemptuously. That being the case, the District Court acted properly by dismissing the petition, without considering its merits.

(4) The judicial review of the decision of the District Court was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

Bolvin Paikara v Rima Nau [1971-72] PNGLR 354
Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476
Electoral Commission and Peter Simbi v John Masueng and Richard Koronai (1999) N1965
Jubilee Hambru v Michael Baur (2007) N3193
Kuna v Eralia (2004) N2771
NCDIC v Crusoe Pty Ltd [1993] PNGLR 139
Peter Yama v BSP (2008) SC921
Rahonamo v Enai (re Hitau) [1971-72] PNGLR 58

JUDICIAL REVIEW

This was a review by the National Court under Section 155(3)(a) of the Constitution of the decision of a District Court dismissing a petition against the result of a local-level government election.

Counsel

S Bungo, the plaintiff, in person
J Robin, the first defendant, in person
T Kuma for the second and third defendants

17 January, 2011

1. CANNINGS J: The election of ward members for the Kimbe Urban Local-level Government was held in May 2008. John Robin won the election and Siwi Bungo was runner-up. Mr Bungo filed an election petition in the District Court, which was dismissed on 11 March 2009 by the presiding Magistrate, Mr T Dawai.

2. Mr Bungo now comes before the National Court, as plaintiff, with an application under Section 155(3)(a) of the Constitution for judicial review of the District Court's dismissal of the petition. As there is no right of appeal against a decision of the District Court on an election petition, the manner in which Mr Bungo has approached the National Court, seeking a review of exercise of judicial authority by the District Court, is proper (Electoral Commission and Peter Simbi v John Masueng and Richard Koronai (1999) N1965, Kuna v Eralia (2004) N2771).

3. Mr Bungo argues that the learned Magistrate erred in three ways:

1. by not disqualifying himself as requested and proceeding to hear the case in the absence of the plaintiff and his witnesses;
   
2. by not giving weight to evidence that polling officials breached Section 140 of the Organic Law by not allowing relatives to help illiterate voters cast their votes;
   
3. by not giving weight to evidence that there were errors in the counting process.
   

DID THE MAGISTRATE ERR BY NOT DISQUALIFYING HIMSELF?

4. To determine this ground of review it is necessary to make findings of fact as to what actually happened in the District Court on 11 March 2009, the day set down for the hearing of the petition. There are two versions of the incident.

5. On the one hand, Mr Bungo has given evidence that he made an application for Mr Dawai to disqualify himself on the ground of apprehended bias, as he believed that Mr Dawai had been too generous in allowing adjournments to the respondents due to a change of lawyers and the trial of the petition had been unnecessarily delayed. He says that he made the application in the following way:

I am a citizen of this country and have the liberty to choose another magistrate if I intend to, which I did politely and firmly. My statement was: "Your Worship, mi no laik bai yu harim kot bilong mi. Mi laikim narapela Megistret bai harim" [Your Worship, I do not want you to hear my case. I want another Magistrate to hear it.] After saying that, I bowed before the Court's integrity and walked out, my witnesses and supporters did the same.

6. On the other hand, Mr Dawai recorded the incident in his judgment, in the following terms:

Then on the morning of 11 March 2009 when we resumed for hearing the petitioner without any notice or warning stood up and stated in Pidgin: "Ol loya senis so yu mas senis tu". The lawyers are changing so you must change. I took this to mean that he wanted me to disqualify from hearing the petition so I asked him was that the only reason or did he have any other reason.

He then replied in Pidgin: "Dispela em rabis kot, yu ino inap harim kot bilong mi." This is a rubbish court, you won't hear my case. After saying this he collected his papers and stormed out of the courtroom followed by his witnesses and supporters.

I was shocked and did not know what to say or do so I just sat there for five or ten minutes. Then the lawyer for the Electoral Commission, Mr Kuma of Parua Lawyers, made a verbal application to have the petition dismissed for want of prosecution and have the petitioner and his witnesses charged for contempt of court.

I adjourned the matter to decide on the application and on 11 March 2009, issued warrants of arrest for the petitioner and his witnesses. On 11 March 2009 at about midday I dismissed the petition with costs.

On 13 March 2009 the petitioner and his witnesses were brought before the court and were charged for contempt and when they admitted ... I convicted them and all the witnesses were fined K50.00 each and the petitioner was fined the sum of K100.00.

7. No verbatim transcript or tape-recording is available of the District Court proceedings, so what is the proper way of determining, as a fact, how the incident unfolded? The starting point is to apply the presumption of regularity regarding judicial proceedings, sometimes described by the Latin maxim omnia praesumuntor rite essa acta. It is a common law principle that says that, unless the contrary is proven, court proceedings are presumed to have been conducted properly and that the court's records are presumed to be accurate (Rahonamo v Enai (re Hitau) [1971-72] PNGLR 58; Bolvin Paikara v Rima Nau [1971-72] PNGLR 354; Brian Michael Costello v The Controller of Civil Aviation (No 2) [1977] PNGLR 476; NCDIC v Crusoe Pty Ltd [1993] PNGLR 139; Jubilee Hambru v Michael Baur (2007) N3193). It is a rebuttable, not a conclusive, presumption, which means that it is open to contradiction. If there is a dispute or uncertainty as to what actually happened in court, the court's record will be regarded as accurate unless the person challenging the record proves that there is an inaccuracy.

8. Mr Bungo has not done that. He has provided no evidence to corroborate his claim that he asked firmly, but politely, for the learned Magistrate to disqualify himself. He conceded that he and his supporters were charged with and convicted of contempt of court over the incident, which tends to confirm, not contradict, the accuracy of Mr Dawai's record of the incident. The presumption of regularity has not been rebutted. The record of the incident in Mr Dawai's judgment must be regarded as accurate. Thus I find as a fact that the incident of 11 March 2009 occurred in the manner recorded in the judgment.

9. Based on that finding of fact, I conclude that the learned Magistrate made no error of law in not disqualifying himself. Mr Bungo made the application in an inappropriate and contemptuous manner, leaving the learned Magistrate little choice but to refuse it and to uphold the application by Mr Kumo for dismissal of the petition for want of prosecution. The first ground of judicial review is therefore dismissed.

OTHER MATTERS

10. Dismissal of the first ground of review means that it is unnecessary to deal with the two other grounds. The learned Magistrate acted quite within his rights and powers by dismissing the petition. He was not obliged to consider the merits of the two grounds of the petition, concerning alleged errors by electoral officials in the polling and the counting.

11. However, as the alleged errors by the electoral officials relate to the two remaining grounds of review I will make some brief comments in passing.

12. As to the claim that polling officials breached Section 140 of the Organic Law on National and Local-level Government Elections by not allowing relatives to help illiterate voters to cast their votes, there may have been some merit in this claim given the affidavits that were filed in the District Court by the plaintiff's witnesses. Section 140 (assistance to certain voters) is quite clear as to the procedure that applies if an illiterate voter seeks assistance. It restricts the circumstances in which polling officials can assist. Section 140 states:

(1) If a voter satisfies the presiding officer that—

(a) his sight is impaired; or

(b) that he is so physically incapacitated that he is unable to vote without assistance; or

(c) that he is so illiterate that he is unable to vote without assistance,

the presiding officer shall permit such number of persons appointed by the voter to enter an unoccupied compartment of the booth with the voter, and mark, fold and deposit the voter's ballot-paper for him.

(1A) A voter may present to a Presiding Officer or other polling officer a list indicating the candidates the voter wants to vote for and upon receipt of such a list and in the presence of another polling official, the Presiding Officer or polling officer shall read to the voter the candidates named on the list and confirm if the voter wishes to mark votes for these candidates and in the order of preference so indicated and only after this can the Presiding Officer or other polling officer complete a ballot paper for the voter in accordance with the voters instructions.

(2) A person appointed under Subsection (1) to assist a voter shall restrain from disclosing any knowledge of the vote of the voter.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding three months.

13. I am not saying that this ground of the petition would have succeeded, but there was evidence, that would have needed to be carefully assessed, which suggested that illiterate voters were not permitted assistance, as required by Section 140(1). There was also evidence that polling officials marked illiterate voters' ballot papers without adhering to the procedures in Section 140(2). So there was certainly an issue worthy of consideration in this part of the petition.

14. I cannot say the same thing about the ground of the petition concerning alleged errors in the counting process. There seemed to be little evidence in support of this ground.

15. These comments are rather academic, of course, but they may be of some assistance to the parties in future elections.

16. My closing comment is that Mr Bungo has only himself to blame for having his petition summarily dismissed. If any party in any court proceedings wants to ask the Magistrate or Judge to disqualify himself or herself, this must be done in a proper, careful and respectful way (Peter Yama v BSP (2008) SC921). You don't have to be a lawyer to know this. It is common sense, and common courtesy. Mr Bungo displayed neither and got the result he deserved.

COSTS

17. Costs normally 'follow the event', ie the party that loses a case has to pay the costs of the winning party. But this is always a matter of discretion. In view of the nature of this dispute and the circumstances of the case, I will order that all parties bear their own costs.

ORDERS

(1) The application for judicial review of the decision of the Kimbe District Court of 11 March 2009, dismissing a petition by the plaintiff concerning the result of the Ward 4 election for Kimbe Urban Local-level Government in May 2008, is dismissed.

(2) The parties shall bear their own costs.

(3) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
____________________________

Lawyers for the plaintiff : Nil
Lawyers for the 1st defendant : Nil
Parua Lawyers: Lawyers for the 2nd and 3rd defendants