N10353

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 10 OF 2022 (IECMS)

BETWEEN:
ROSS B SEYMOUR
Petitioner

AND:
JASON PETER
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Kangwia J
2023: 06th & 09th June

ELECTION PETITION – No case submission – Law on no case submissions in election petitions – risks in no case submissions – Grounds of errors and omissions relied on – whether evidence sufficient.

Cases Cited: 
Lera v Tsiamalili [2023] N10177
Desmond Baira v Kilroy Genia (1998) SC579
Wai v Graham (2005) N2768
David Arore v John Warisan (2008) SC1030
State v Paul Kundi Rape (1976) N34; [1976] PNGLR 96
Donald James v Paiyo Bale (2019) SC1832 

Counsel:
G. Lau, for the Petitioner
S. Dewe & C. Mara, for the First Respondent
A. Serowa, for the Second Respondent

09th June, 2023

1.      KANGWIA J:  At close of case for the Petitioner, the First Respondent proposed a no case submission on the two grounds that survived the objection to competency. The Court instructed that parties argue the law on no case to answer submissions in an election petition and adjourned the proceedings. On the return date all parties have addressed the Court on the law on no case submissions in election petitions, through written submissions handed up. 

2.      For the First Respondent Mr Dewe with the able support of Mr Serowa submits that the law on no case to answer submission in election petitions is settled in this jurisdiction; that a no case submission is permitted in election petitions. They cite among others the following cases as standing for those propositions. (Lera v Tsiamalili [2023] N10177; Desmond Baira v Kilroy Genia (1998) SC579; Wai v Graham (2005) N2768; David Arore v John Warisan (2008) SC1030.

3.     For the Petitioner Mr. Lau submits that a no case submission is a procedure in criminal trials where at the close of the prosecution case the accused makes a no case submission that the prosecution has not established a prima facie case and he should not be called upon to answer the charge. It was further intimated that the Organic Law on National and Local Level Elections (Organic Law) does not provide a procedure for no case submissions. An election petition being a special jurisdiction the procedures in a criminal case, or a civil proceeding do not apply.   

4.     It is accepted that there is no provision under the Organic Law on no case submissions after the Petitioner closes its case in an election petition hearing. However, the law on no case submissions is settled in this jurisdiction. What a no case submission is constituted is illuminated in the renowned case of the State v Paul Kundi Rape (1976) N34.  It is a product of a criminal case trial process. 

5.     Courts have readily embraced the view that no case submissions in criminal proceedings should also be applied in election petitions in line with the authority given by s 212 (3) of the Organic Law. The cases cited by counsels attest to this. 

6.    I have reservations on the case law proposition that no case submissions applied in Criminal case trials should apply in election petitions. The test in a criminal case is proof beyond any reasonable doubt unlike an election petition where the Petitioner only needs to satisfy the court that what was alleged, happened. 

7.     By the very nature of an election petition my view is that there are two distinct circumstances giving rise to an election petition. An election petition challenges a return on grounds of illegal practices under s 215 and errors and omissions under s 218 of the Organic Law.  

8.    Where an illegal practice constituted of a criminal offence like undue influence under s 102 and bribery under s 103 of the Criminal Code is satisfied in an election petition, the penalty is voidance of an election return. The prescribed penalties under s 102 and 103 of the Criminal Code cannot be imposed through election petitions. Therefore, it serves no useful purpose to pursue a no case submission in an election petition. It must be left where it is relevant which is in a criminal trial in line with the Paul Kundi Rape criteria. 

9.    Errors and omissions alleged in election petitions are not necessarily criminal offences. They constitute failures in performance or non-performance of duties and responsibilities. The Petitioner is required to satisfy the Court by evidence that the errors and omission alleged have been committed. 

10.    Where the evidence offered by the Petitioner does not support the grounds sought to be relied on allegations of errors and omissions, my view is that it was open to the Respondents to refrain from calling evidence in rebuttal and invite the Court to exercise its discretion to stop the trial. 

11.    By choosing to make a no case submission at the close of the case for the Petitioner the Respondents are compelling the Court to weigh the evidence at this stage of the trial on a mistaken belief that a no case submission will succeed.  It in turn operates as a bar to the Respondents calling evidence or incurs a burden on them to disprove adverse decisions made in a no case submission if the no case submission is refused. 

12.     There is no guarantee that a no case decision will always be in favour of the maker of the no case submission. The decision is based on evidence received from the Petitioner. Unlike Criminal trials, in election petitions only competent grounds relied on go to trial. Competency of a ground in an election petition is surrounded by facts that establish the evidence. 

13.    In view of what I have said and considering what case law stands for in no case submissions in election petitions, my belated plea is that no case submissions after a petitioner closes its case should be disallowed through the election petition rules.  

14.     On the converse, if no case submissions are allowed to stand as they are then rules should be promulgated disallowing calling of evidence by a Respondent who is unsuccessful in a no case submission. 

15.   Going back to the present case I am bounded to embrace the practice employed by case law and address the submissions of parties in the no case submission which I do now.

16.    To do that the surviving grounds from the objections to competency shall be considered together as the second ground is consequential to the first.
 
17.    From the totality of the evidence in the documents tendered into evidence by consent and the evidence of witnesses called the undisputed facts are these.

18.    On the day of polling when ballot papers allocated for Ward 7 West Taraka and Ward 8 Igam Barracks were distributed for voting it was discovered that they were meant for Lae Open Electorate. Despite objections by voters and scrutineers the Returning Officer (RO) for Huon Gulf Mr David Wasinak (now deceased) allowed them to be used for voting candidates in Huon Gulf Electorate. According to the petition the total number of ballot papers distributed for polling in those two wards were 6182.

19.    At the Counting place when the ballot papers in the ballot boxes for West Taraka and Igam Barracks were objected to from scrutiny the RO directed election officials to count them after telling them to seek a Court Order. After the first preference vote count the First Respondent received 13,550 votes while the Petitioner received 11,418 votes. After the last elimination the petitioner was declared winner by 19,585 votes. The petitioners total stood at 14,274 votes. 

20.    On behalf of the First Respondent Mr Dewe after an elaborate submission on case law in allegations of errors and omissions in election petitions, submits that the petition should be dismissed because there is no evidence of any breach committed by the election officials when there was no evidence that a polling place was abolished. 

21.     The electoral officials provided for constituents to exercise their right to vote at gazetted polling places in the way they have been voting all along in Huon Gulf open electorate for National Elections and under Lae Urban LLG for Local Level Government Elections.

22.    While conceding that ballot papers for Lae Open were erroneously admitted to polling and scrutiny for West Taraka and Igam Barracks, Mr Dewe submits that the electoral officials committed no error when they facilitated polling to continue which is the ongoing practice.
 
23.     The polling was conducted the way it used to be because there was no clear demarcation of boundary to determine which electorate West Taraka and Igam Barracks fell under.  In the absence of a clear demarcation of boundary the Court had no power to declare that West Taraka and Igam Barracks fell under Lae open Electorate because demarcation of boundary is a prerogative of Parliament under s 125 of the Constitution. He relies on the case of Donald James v Paiyo Bale (2019) SC1832 as authority for creation of boundaries. 

24.    The second leg of submissions relate to the results of the election. As for the results of the elections Mr Dewe submits that the First Respondent could still win by 734 votes even if the ballot boxes for West Taraka and Igam Barracks were excluded because as the petition suggests, the First Respondent would have collected 14, 547 against the Petitioners 13,812 votes. 

25.    Mr Serowa agrees with the submissions by the First Respondent and invites the Court to exercise its discretion and stop the case because the evidence adduced by the Petitioner is insufficient and does not warrant this matter to proceed any further. The evidence of the petitioner is hearsay, while the evidence of the other witnesses are only recitals of what they did at and during polling and counting.

26.    The further submission by Mr Serowa is that since the Petitioner’s evidence of polling related to Awagasi and Igam Barracks only it cannot be assumed that the same happened in all the polling places sufficient for the results to be affected. Because of that evidence, the affected votes being 700 for Awagasi and 386 votes for Igam Barracks totalled 1,086 votes only. 

27.    Even if the 1086 votes for Awagasi and Igam Barracks were excluded the results would not be affected because the First Respondent scored 19,585 votes when the absolute majority was 16,931 with a winning margin of 2,654 which was still higher than the 1086 affected votes. 

28.   For the Petitioner Mr. Lau submits that the Petitioner provided overwhelming evidence through the documents tendered into evidence by consent and the evidence given by witnesses called. That the evidence of the witnesses stood intact and unshaken in cross examination. 

29.    It was also submitted that the Petitioner presented evidence to show that errors and omissions were committed at the commencement of polling and after the primary count. When objections to ballot boxes for West Taraka and Igam Barracks were made they were not upheld. Instead counting was allowed to proceed after advising objectors to get Court Orders.

30.    The further submission is that there was evidence that polling took place at undesignated polling places by errors committed by the RO for Huon Gulf:

- when the dispatch list did not show West Taraka and Igam Barracks on the list for Huon Gulf when they were in fact on the list for Lae Open. 
- when Gazettal notices 526 of 2022 confirmed polling places in West Taraka and Igam Barracks for Lae open.
- when common rolls for West Taraka and Igam Barracks are registered under Lae urban LLG in Lae Open Electorate.
- when journals by presiding officers for West Tarka and Igam Barracks tendered into evidence by consent showed serial numbers for ballot papers did not fall within range given in the dispatch list for West Taraka and Igam Barracks but fell under serial number ranges for Lae Open.

31.    The submission therefrom is that the evidence supports the surviving grounds of the petition, and the no case submission should be refused and allow the trial to proceed.    

32.    The line of submissions by the Respondents on lack of evidence of errors and omissions committed by election officials is farfetched and has no substance. The present petition is not a dispute over demarcation of boundary. It concerns errors and omissions by Electoral officials during the National Elections of 2022. In that respect I need only to be satisfied that there is before me evidence of errors and omissions alleged in the petition. In the present petition the alleged errors and omissions are adequately identified by Mr. Lau in his submissions in response. 

33.     The unchallenged evidence is that election officials led by the RO for Huon Gulf allowed ballot papers for Lae Open Electorate to be used for polling at West Taraka and Igam Barracks for candidates in Huon Gulf. Those ballot papers cannot be given any description other than foreign ballot papers to Huon Gulf open Electorate. 

34.    That decision was made despite West Taraka and Igam Barracks being designated polling places for Lae Open Electorate by operation of the common roll and the Wards being named as polling places under Lae Urban LLG which was under Lae Open Electorate coupled with the appointment of polling places by the Electoral Commission under Lae urban LLG.  

35.    The defiant actions of the RO and Electoral officials to allow voters from West Taraka and Igam Barracks to cast votes for candidates in Huon Gulf at polling places in West Taraka and Igam Barracks which were designated for Lae Open Electorate using ballot papers for Lae Open is evidence of a glaring error.

36.    By doing so, the RO and the other Electoral officials seem to have further demarcated the boundary of Lae Open electorate and Huon Gulf Open electorate under the auspices of a longstanding practice. Where they got the authority from to do that remains a mystery.  

37.    The Electoral Commission is the custodian of National elections pursuant to the Organic Law on National and Local Level Government Elections. It cannot unilaterally determine electoral boundaries. It performs prescribed functions to implement elections. One such function is to appoint polling places pursuant to s 43 of the Organic Law which states:

43.	Polling places.

(1)	The Electoral Commission may, by notice published in the National Gazette or in a newspaper circulating in the electorate—
(a)	appoint such number of polling places for each electorate as it thinks necessary and practicable; and
(b)	abolish a polling place.
(2)	No polling place shall be abolished after the issue of the writ and before the time appointed for its return.

38.     That provision was implemented by Gazette No 526 of 30th June 2022 when the Electoral Commission appointed polling places for the Momase region. Under Lae Open Electorate polling places in West Taraka and Igam Barracks were placed under Lae Urban LLG to poll on 4th July 2022. Polling places were not appointed under any of the LLGs in the Huon Gulf open Electorate. The appointment of polling places in no way determined boundaries of electorates for Lae Open Electorate and Huon Gulf Open Electorate.
  
39.     Appointing of polling places can only happen under determined boundaries. Such appointment is also discretionary. In the absence of evidence to the contrary it is safe to infer that the Electoral Commission is deemed to have acted on existing boundaries to appoint respective polling places in West Taraka and Igam Barracks wards to vote in the Lae Open Electorate. 

40.    The Electoral Commission could not have placed eligible voters from West Taraka and Igam Barracks on the common roll for Lae Urban and issued ballot papers under Lae Open Electorate without a defined boundary. It would therefore be remiss of logic and common sense to assume that the Court would be determining the boundary by declaring that West Taraka and Igam Barracks fell under Lae Open Electorate when the evidence speaks otherwise. 

41.    By those observations it is my view that the Electoral Commission did not err. It was the Returning Officer and the electoral officials from Huon Gulf who committed errors when they failed to comply with Gazettal notices in favour of an existing or longstanding practice. 

42.    As if that was not enough, they intruded into the affairs of Lae Open Electorate and facilitated for voters from West Taraka and Igam Barracks to poll for candidates in Huon Gulf. I am inclined not to exercise my discretion pursuant to Schedule 2.11 of the Constitution to rule in favour of the no case submission on the basis that it has been a longstanding practice. 

43.     The sum effect is that there is evidence before the Court that graphic errors and omissions were committed by electoral officials as alleged in the petition even though the evidence was more around Awagasi and Igam Barracks polling places. I propose not to venture further into evidence at this stage of the trial to avoid a possible conclusion without the totality of the evidence before me. There is nothing more to say than to rule that the no case submission has not been sustained and the trial must proceed.

44.     The formal orders are:

1.	The no case submission is refused.
2.	The trial will proceed.
________________________________________________________________
Nuiage Lawyers: Lawyers for the Petitioner	
Jema Lawyers: Lawyers for the First Respondent
Palem Onom Lawyers: Lawyers for the Second Respondent