Review Pursuant to Constitution Section 155(2)(b); Results of the 1997 National Elections for the Chimbu Regional Electorate; Father Louis Ambane and The Electoral Commission of Papua New Guinea v Thomas Tumun Sumuno [1998] PGSC 29; SC565 (3 September 1998)

Unreported Supreme Court Decisions

SC565

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR NO 61 OF 1998
REVIEW PURSUANT TO CONSTITUTION S. 155 (2) (B)
IN THE MATTER OF THE RESULTS OF THE 1997 NATIONAL ELECTIONS FOR THE CHIMBU REGIONAL ELECTORATE
BETWEEN
FR LOUISAMBANE - FIRST APPLICANT
AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA - SECOND APPLICANT
AND
THOMAS TUMUN SUMUNO - RESPONDENT

Waigani

Amet CJ Kapi DCJ Los J
30 July 1998
3 September 1998

NATIONAL ELECTIONS - Validity Votes in unofficial ballot boxes not counted - Error or Omission in not supplying official ballot boxes, ss. 118 and 122 of the Organic Law on National Elections - Whether error or omission affected the result of the election s. 218 (1) of the Organic Law.

Facts

In the National Government Elections for the Chimbu Regional Electorate, insufficient ballot boxes were provided by the Electoral Commission to contain the votes cast, the presiding officers authorised the use of unofficial patrol boxes. At the counting these votes were not counted. This amounted to an error or omission on the part of the electoral officials, pursuant to s. 218 (1) of the Organic Law on National and Local-Level Government Elections.

Issue

Whether the error or omission affected the result of the election within the meaning of s. 218 (1) of the Organic Law.

Held

(1) The test under s. 218 (1) is whether the error or omission did affect the result of the election, and not may have or in all probability would have affected the result.

In re Moresby Northwest Parliamentary Election [1997] PNG LR 338 and Cole v Lacey [1965] CLR 45, not followed.

(2) Where the means or the opportunity exists to count the votes affected in order to determine if in fact the result of the election was affected, then the Court should count the votes.

(3) The votes being available, they should be counted and tally furnished to this Court to make the determination.

(4) Declaration of the trial court quashed.

(5) Elected member restored to seat until this Court makes final pronouncement.

Counsel

G Sheppard for the First Applicant

Dr J Nongorr for the Second Applicant

P Pagne for the Respondent

3 September 1998

AMET CJ KAPI DCJ LOS J: This is an application made pursuant to s. 155 (2) (b) of the Constitution seeking a review of the decision of the National Court in the trial of the election petition challenging the election of the Applicant in the 1997 National Elections for the Chimbu Regional Electorate.

The National Court had, in upholding the petition, made the following declarations:

· That the applicant who was returned as elected was not duly elected;

· That the election for the Chimbu Provincial Electorate was absolutely void; and

· That as a result a new election shall be held.

The basis upon which the trial judge had upheld the petition was that, at four different polling places there were insufficient ballot boxes supplied to contain all the votes which had been cast and because the Presiding Officers had been unable to obtain any further ballot boxes they authorised the use of patrol boxes as ballot boxes. These were correctly numbered, tagged and sealed. At the counting the Provincial Returning Officer refused to count these votes on the ground that they were contained in unofficial boxes and not in the required electoral boxes.

The trial judge held that the Returning Officer was correct in not allowing the votes contained in the unofficial patrol boxes to be counted.

The trial judge however made the following findings:

· that the Returning Officer was in error in failing to provide sufficient ballot boxes as was required of him by s. 118 and s. 122 of the Organic Law;

· this was an irregularity which caused approximately 1,300 votes to be discounted; and

· this amounted to an error or omission within the meaning of s. 218 (1) of the Organic Law, which in all probability may have affected the result of the election.

GROUND OF THE APPLICATION FOR REVIEW

The ground of the application for review was that the learned trial judge erred in law in interpreting s. 218 (1) of the Organic Law to mean that because the total number of votes affected exceeded the difference between the winner and the runner-up, the result of the election may have in all probability been affected, such that the election should be voided.

FACTS

The primary facts were not disputed. These were that at four different polling places there were insufficient ballot boxes supplied to contain all the votes which had been cast. The presiding officers sent police personnel to the District Electoral Office to obtain additional ballot boxes but none were able to be obtained within the polling period. The presiding officers then conferred with some members of the community and leaders, candidates’ scrutineers and police and authorised the use of patrol boxes which were filled with votes. They were then correctly numbered, tagged and sealed. At the time of counting, the Provincial Returning Officer refused to count these votes on the ground that they were contained in unofficial boxes and not in the required electoral boxes. The learned trial judge found that approximately 1300 votes were contained in the patrol boxes which were not included in the count.

LEGAL ISSUES

Firstly, the Applicants have not taken issue with the primary conclusion by the trial judge, that the patrol boxes were not the officially issued ballot boxes as required by s. 118 and s. 122 of the Organic Law, and their use was an irregularity, and that the Returning Officer was right in his decision not to count the votes contained in them.

Secondly, no issue has been taken with the conclusion that the failure of the Returning Officer to provide sufficient ballot boxes was an error or omission within the meaning of s. 218 (1) of the Organic Law.

The principal issue taken by the Applicants was that, having found that the error or omission by the Returning Officer affected 1300 votes, the learned trial judge erred in the interpretation and application of s. 218 (1), by concluding that it, “not only may have affected the result, but in all probability, would have affected the result”, by relying on the authority of the cases; In re Moresby Northwest Parliamentary Election [1977] PNGLR 338 and Cole v Lacey [1965] CLR 45.

Section 218 (1) provides that:

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

The Applicants submitted that this provision required that the Court be satisfied that the error or omission did “affect the result of the election”, and not merely that it may have affected or in all probability would have affected the result. It was submitted that, in the circumstances of this case where the ballot papers containing the votes were available, the Court should have counted them to determine if in fact the allocation of the votes to the candidates, were such that, the error or omission resulting in their not being counted, did affect the result of the election as declared. When that opportunity was available to the Court and for it to have merely referred to the difference of votes between the winner and the runner-up and conclude that the result may have or in all probability would have been affected was speculative and inadequate.

The Applicants further submitted that, if by a count of the votes that were not counted it was determined that the result would not have been affected, then it could not be concluded that the error or omission did affect the result of the election within the meaning of s. 218 (1) of the Organic Law. If on the other hand the count disclosed that the result would have been affected then it could properly be said that the error or omission on the part of the electoral officials did affect the result of the election.

The Respondent has submitted that because the number of votes affected were 1300 and the difference between the Applicant and runner-up was 22 votes, considering the closeness of the results, the learned trial judge was correct in concluding, by the application of the authority of the decision in the Moresby North-West Parliamentary Election case, that the result would in all probability have been affected without the need for counting the votes.

The learned trial judge relied on the decision in Moresby North-West Parliamentary Election which applied the decision in the Australian High Court case of Cole v Lacey (supra), in interpreting and applying s. 218 (1) as he did. Frost CJ said in Moresby North-West Parliamentary Election (supra) at p. 341:

“It is established that under the Australian Act in the same terms, it is not necessary for the petitioner to prove that the alleged irregularities actually affected the result of the election, Commonwealth Electoral Act 1918-1973, s. 194 Cole v Lacey(2). The result of the election means the return of the particular candidate, and not the number of his majority - Kean v Kerby (3). Upon such a provision all that has to be shown for the petitioner to succeed is that the irregularities may have affected the result, Kean v Kerby (4) Cole v Lacey (5). This involves proof of the existence of such a possibility, but it must be a real possibility and not remote.”

We do not have to determine whether His Honour correctly applied that interpretation to the factual circumstances of the case then before him. We do however say that, that test, as applied by Frost CJ and the learned trial judge in this case, deriving its origin from the Australian cases referred to which dealt with similar provisions, and possibly the source from which s. 218 (1) of the Organic Law was adopted, is nevertheless not the proper interpretation and test to be applied to s. 218 (1).

We consider that the submissions for the Applicant are correct in law, in the circumstances of this case. We consider that the test applied by the learned trial judge, in the specific circumstances of this case, is not appropriate. Where the means or the opportunity is available to determine the affect of any error or omission, the Court should utilise the means or the opportunity in order to determine whether in fact it did affect the result of the election.

The proper test in the application of s. 218 (1) in the circumstances of this case is whether the error or omission “did affect the result of the election”, and not as the trial judge applied, whether the result “may have or in all probability would have been affected”.

We accept the submission for the Applicants that the means by which the court would have been satisfied as to whether the error or omission did affect the result, was available to the trial judge; which is simply to have counted the votes contained in the patrol boxes which had been excluded from counting.

What then ought to be the effect of this conclusion? The invalidation of the votes has not been taken issue with, so that finding is not in issue. As we have found, in order for the Court to determine whether the error or omission did actually affect the result of the election, the Court needed to have counted the invalidated votes in the patrol boxes, before making the appropriate declarations and orders.

We therefore make the following orders:

1. The declarations made by the trial Court are brought up into this Court and quashed.

2. The votes contained in the uncounted patrol boxes be counted by officials of the Electoral Commission and distributed to the candidates for whom they were cast. (These are not to be counted as official formal votes. They are to be counted merely for the purposes of determining whether the result was affected.)

3. The counting shall be done under the scrutiny of the lawyers representing the parties in this application and under the supervision of the Registrar of the National and Supreme Courts. (Any dispute on the validity of any vote is to be referred to this Court for determination.)

4. The tally of this count shall be recorded separately and provided to this Court.

5. The elected candidate shall be restored as the member of Parliament until the final pronouncement by this court.

Because the votes are not being counted as formal votes, we do not consider it necessary for scrutineers for every candidate to be present for this counting.

The Supreme Court will then determine whether the error or omission on the part of the Electoral Commission in not supplying sufficient number of ballot boxes did affect the result of the election, and make the appropriate declarations.

Costs will be reserved until the final decision is pronounced.

Lawyer for the First Applicant: Maladinas Lawyers

Lawyer for the Second Applicant: Nongorr & Associate Lawyers

Lawyer for the Respondent: Kunai & Company Lawyers