Re An Election Petition for the Tari-Pori Open Electorate; Marabe v Tomiape [2006] PGSC 6; SC827 (3 March 2006)

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REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)
OF A JUDICIAL ACT OF THE NATIONAL COURT

PARLIAMENT – elections – dispute over result – disputed ballot-box – whether the returning officer had made errors by removing inner plastic seal – opening of ballot-box – insertion of returning officer’s leg into ballot-box – whether integrity of ballot-box impaired – whether returning officer erred by counting a ballot-box that had evidently been opened.

PARLIAMENT – elections – role of petition Judge in assessing competing evidence.

The applicant was runner-up to the first respondent in the 2003 supplementary election for the Tari-Pori Open electorate. The applicant filed an election petition in the National Court, claiming that the presiding officer at a particular polling place had made a series of errors that resulted in supporters of the first respondent engaging in multiple-voting. He claimed that the presiding officer facilitated the multiple-voting and at one stage deliberately cut the inner plastic seal of the ballot-box, opened the ballot-box and used his feet to push down the ballot papers already in the box to make more space. The petition Judge was not satisfied that the applicant had proved the allegations made in the petition and dismissed the petition. The applicant sought review of the dismissal of the petition.

James Marabe v Tom Tomiape and Andrew Trawen EP No 75 of 2003, 20.04.04, unreported
James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04, unreported
Mark Bob v The State (2005) SC808
Mathew Poia v Electoral Commission and Fabian Inne (2003) N2390
Peter Peipul Ipu v Pila Niningi and the Electoral Commission (1998) SC580
Reuben Kaiulo v James Genaboro and Ron Ganarafo (1998) SC567 Supreme Court Reference Nos 4 and 5 of 2002, Reference by the Attorney-General (2002) SC689
SCR No 63 of 1998; Application by Ludwig Patrick Shulze
Supreme Court Review Nos 22 and 23 of 2003, Applications by Ben Semri and the Electoral Commission (2003) SC723

CJ – Chief Justice
DCJ – Deputy Chief Justice
eg – for example
EP – election petition
ie – that is; by which is meant
J – Justice
N – National Court judgment
No – number
OIC – officer-in-charge
PNG – Papua New Guinea
SC – Supreme Court judgment
SCR – Supreme Court Review
Sgt – Sergeant
Snr – Senior
v – versus

This was the review of a judicial act of the National Court dismissing an election petition.

Counsel:
R Leo for the applicant
A Manase for the 1^st respondent
A Kongri for the 2^nd respondent

This is a review of a judgment of Jalina J in the National Court dismissing an election petition by the applicant that disputed the election to the National Parliament of the first respondent. (James Marabe v Tom Tomiape and Andrew Trawen, Acting Electoral Commissioner EP No 75 of 2003, 20.10.04, unreported.)

The applicant, James Marabe, was an unsuccessful candidate in the 2003 supplementary election for the Tari-Pori Open electorate. He was the unsuccessful petitioner in the National Court.

The first respondent, Tom Tomiape, was the successful candidate in the 2003 supplementary election for Tari-Pori Open and is the sitting member. He was the first respondent in the National Court.

The second respondent, the Electoral Commission, is the constitutional institution the prime function of which is to organise and conduct all elections for the National Parliament and the legislative arms of the Local-level Governments. The Electoral Commission consists of the Electoral Commissioner. He was the second respondent in the National Court.

In the 2002 general election for the National Parliament the Governor-General, acting on advice of the Electoral Commission, declared the elections for seven electorates in the Southern Highlands and Enga Provinces to have, for various reasons, ‘failed’. The Electoral Commissioner’s power to advise that an election had failed was upheld by the Supreme Court (Amet CJ, Kapi DCJ, Sheehan J, Sakora J and Sevua J) in Supreme Court Reference Nos 4 and 5 of 2002, Reference by the Attorney-General (2002) SC689.

In early 2003 ‘supplementary elections’ (as distinct from by-elections) were held for Tari-Pori Open and the other six electorates. They were amongst the last elections to be held under the first-past-the-post voting system before the introduction of limited preferential voting.

There were 16 candidates in the 2003 supplementary election for Tari-Pori Open. Polling was for one day only, Monday 28 April. Counting of votes was at the counting centre, the Agiru Centre, in the provincial capital, Mendi. It started on the afternoon of Friday 2 May and ended on the evening of Sunday 4 May 2003.

The returning officer, Henry Gull, publicly declared that the result of the election was that the first respondent was elected with 7,925 votes. The applicant was the runner-up with 7,151 votes, a difference of 774 votes.

On 12 June 2003 the applicant filed an election petition disputing the result of the supplementary election under Part XVIII (disputed elections, returns etc) of the Organic Law on National and Local-level Government Elections (the Organic Law).

The petition was heard by Jalina J in the National Court over 31 days at Mt Hagen from April to September 2004. His Honour handed down the court’s decision on 20 October 2004, dismissing the petition in its entirety and ordering the petitioner (the applicant in the present case) to pay the respondents’ costs.

There is no appeal, as such, against a judgment of the National Court in an election petition. Appeals are prohibited by Section 220 (decision to be final) of the Organic Law, which states:

A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.

However, it has long been established that the Supreme Court can review a decision of the National Court – as distinct from hearing an appeal against such a decision – under Section 155(2)(b) (the national judicial system) of the Constitution, which states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

Usually when parties want to invoke the Supreme Court’s jurisdiction under Section 155(2)(b) – eg in a criminal case or in a normal civil action – there will be a right of appeal that for various reasons has been lost, eg where a person does not appeal within the 40-day period prescribed by the Supreme Court Act. In those cases the exercise of jurisdiction by the Supreme Court is not automatic. A person has to first convince the Supreme Court that it should engage in review. A matter brought before the Supreme Court under Section 155(2)(b) in those sort of cases is properly regarded as consisting of two distinct steps. First, a determination of whether leave should be granted to the applicant for a review to take place. Secondly – if leave is granted – determination of the review itself. If leave is not granted, there is no review (Mark Bob v The State (2005) SC808, Salika J, Cannings J, Gabi J.)

Where there is no avenue of appeal, such as in the election petition cases, the applicant does not have to satisfy the normal criteria. Leave is automatically granted. However, the applicant must still prove that the grounds of review relied on warrant the Supreme Court disrupting the National Court’s decision. The applicant does that by proving three things:

(Supreme Court Review Nos 22 and 23 of 2003, Applications by Ben Semri and the Electoral Commission (2003) SC723, Kapi CJ, Los J, Salika J; SCR No 63 of 1998; Application by Ludwig Patrick Shulze, Kapi DCJ, Sheehan J, Injia J.)

If the present review is to succeed the applicant must satisfy each of those three requirements.

The applicant based his petition on four grounds but abandoned two at the hearing leaving two for determination. They were known as grounds 5A and 5D. They alleged two types of irregularities in the conduct of the election:

The applicant contended that he, in effect, lost the election at Parinamu No 2 as 1,593 votes were cast and 1,568 of them (all but 25) were in favour of the first respondent. The applicant secured only one vote at Parinamu No 2.

First ground of the petition: alleged irregularities at Parinamu No 2 polling place (ground 5A)

The applicant alleged that the presiding officer, David Anderson, committed, allowed, perpetrated or facilitated three types of illegal practices, errors, omissions or irregularities:

As to (1) it was claimed that at the failed 2002 general election a gun battle had erupted between rival supporters of the applicant and the first respondent at Tari, resulting in the death of one of the applicant’s supporters and two of the first respondent’s supporters. On the day of polling, 28 April 2003, 95% of the crowd of 400 to 500 electors had their faces painted with white clay or mud to show that they were still in mourning. They became known as ‘the painted voters’. A village leader, Anslem Agobe Halapa, made a speech that the painted voters must vote for the first respondent and anyone who wanted to vote for another candidate must go forward and be the first to cast their vote. This created a climate of fear, which was worsened when the presiding officer instructed the doorkeeper not to apply indelible ink to the hands of the painted voters. This enabled them to vote from two to five times. The names of 34 individuals who were allegedly guilty of multiple-voting were provided. It was claimed that there were only 400 or 500 people present at the polling place and because of the multiple-voting about 1,093 unlawful extra votes were case for the first respondent.

As to (2) the petition named seven individuals as supporters of the first respondent who were unlawfully permitted to enter the polling place, given initialled ballot papers and allowed to cast votes for the first respondent. It was also claimed that those people gave mumu pork, vegetables and a bundle of sugarcane to the presiding officer and other members of the polling team.

As to (3) it was claimed that one of the first respondent’s supporters, Tamitali Punga, pressed down the ballot papers in the open ballot-box with his feet before closing the inner lid. A new inner plastic seal tag No 73895 was used to seal the inner lid. An outer plastic seal tag No 73896 was used to seal the outer lid before the ballot-box, No 0257, was taken away to be counted.

The second ground of the petition: alleged irregularities at
the counting centre (ground 5D)

The applicant alleged that the returning officer, Henry Gull, committed various errors and omissions manifested by his decision, made without explanation, to count the disputed ballot-box No 0257 from Parinamu No 2 despite vigorous oral and written objections by many interested parties including scrutineers for the applicant and other candidates, the applicant himself and other candidates, the doorkeeper and the OIC security at Parinamu No 2. The objections were based on the facts pleaded in the first ground of the petition.

Furthermore it was claimed that the returning officer did not have the presiding officer’s returns in his possession before opening the disputed box.

The applicant claimed that he lost the election because of those errors and omissions.

Determination of the first ground of the petition: irregularities by presiding officer etc

All parties to the petition were given the opportunity to tender affidavits, the deponents of which were then subject to cross-examination.

Jalina J began his assessment of the evidence by noting that Corporal Laho’s evidence was not independent as he merely said that he read Inspector Baundo’s affidavit and agreed with it. The evidence of George Mandika and Palipe Pole was very brief and of little assistance. That left Inspector Baundo, Moses Albert and Agoria Parila as the petitioner’s three principal witnesses. They gave evidence of various alleged illegal practices, errors, omissions and irregularities.

The respondents’ five witnesses gave evidence that was in direct conflict to the evidence of the applicants’ witnesses. They testified that the election was conducted smoothly and in accordance with law. At the end of polling the presiding officer, David Anderson, and the OIC Security, Inspector Baundo, made speeches thanking the people for their good behaviour and enabling the election to be conducted without incident.

His Honour then remarked that the success or otherwise of the petition depended on whose witnesses are to be believed:

It depends on the credibility of the witnesses particularly the petitioner’s principal witnesses namely Inspector Baundo, Moses Albert and Agoria Parila bearing in mind the principle that the onus to prove an issue raised or alleged is usually on the party who alleges it unless that onus is shifted to the other party. I am not aware nor has any law been brought to my notice that the onus of proof in election petitions does not rest with the petitioner so it does not here.

His Honour highlighted a number of inconsistencies in the petitioner’s evidence about the indelible ink issue:

By contrast Snr Sgt Honjoru gave evidence for the respondents that he stood at the entrance to the polling place and strictly controlled those who came to vote. He ensured that they had their fingers painted with indelible ink and did not return to vote again.

His Honour observed significant inconsistencies in evidence about whether the voting was rushed or orderly and whether the security forces had been offered things:

His Honour pointed out another discrepancy in the evidence of Inspector Baundo. Annexure A to his affidavit was an undated, handwritten letter addressed to the Field Commander, Tari Police Station, which he described as a report on what happened at Parinamu No 2 on 28 April 2003. Annexure B is a typed version of the letter dated 28 April 2003. His Honour drew the inference that the unwritten letter was written many months after the petition was filed.

The evidence of Albert Moses, a polling official, was questionable as he, for some unknown reason, had decided to give evidence contradictory to the evidence of the independent witnesses Senior Sergeant Michael Honjoru and Constable Anna Gand. Furthermore Albert Moses had signed a statement under the name “Anton Yapa”, which suggests that there had been collusion between Albert Moses and Anton Yapa, if there is such a person, and that what Albert Moses had deposed to in his affidavit may well have been based on what somebody else put to him or influenced him to say.

There was no evidence to support the allegation that people other than the presiding officer had signed or printed the name of the presiding officer at the back of some of the ballot papers. His Honour said that he had the opportunity to examine a large number of the ballot papers in ballot-box No 0257, which had been tendered in evidence. The name in print is “D Andison” [sic] and appears to have been written by the same person. His Honour drew the inference that the name was written by the presiding officer himself. As to the ballot papers with a signature at the back he concluded after comparing it with the signature on David Anderson’s affidavit, the presiding officer’s return form and the sex tally sheet that it belonged to the duly appointed presiding officer, David Anderson.

His Honour considered that the allegation that only 400 or 500 people voted, but voted two or five times each, did not seem to make sense and was clearly misconceived:

... Taking the lower figure of 400 people voting about five times, there would already be 2,000 votes which would be in excess of the total votes of 1,593. about 500 being half) of the 1,000 ballot papers referred to in ground 5A(iii) would have taken the total number of votes collected from Parinamu No 2 to well beyond 2,000 votes.

His Honour determined the first ground of the petition by making an assessment of the credibility of the witnesses. His Honour concluded:

In the course of the oral evidence I had the opportunity to observe the demeanour of the witnesses for the petitioner and the respondents and I must say that the demeanour of the petitioner’s witnesses did not impress me. They appeared to me to be evasive and confusing but the respondents’ witnesses replied to questions clearly and directly.

I therefore believe the witnesses of the respondents particularly independent witnesses Anna Gand and Snr Sgt Michael Honjoru. Not only are they based at different police stations, it has not been demonstrated by the petitioner that they were lying or had reason to tell lies to this court.

On the basis of the foregoing I am not satisfied that the petitioner has proved the allegations in the petition. I consider ground 5A ... of the petition to have been misconceived. I accordingly dismiss the ground.

Determination of the second ground of the petition: irregularities by returning officer etc

Ground 5D is basically founded on the refusal by the returning officer Mr Henry Gull to abstain from counting the votes in ballot-box [No] 0257 from Parinamu No 2 at the time of counting at the Agiru Centre despite objections by the scrutineers as well as other candidates including the petitioner.

The objections were based on what allegedly happened at Parinamu No 2 during polling as pleaded in ground 5A ... Ground 5A ... having been dismissed it follows that ground 5D is also dismissed.

Both respondents’ costs of this petition shall be paid by the petitioner to be taxed if not agreed.

On 2 November 2004 the applicant sought review of the whole of Jalina J’s judgment.

The grounds of review are elaborate and convoluted and occupy five pages of single-spaced text in the review book. It is impractical to recite them verbatim. Some are repetitious. It is not clear what the distinction is between the three categories of grounds. That is, it is not clear why, for example, some grounds have been placed within the category of ‘error of law on the face of the record’ rather than ‘error of fact and law’ or ‘failure to act reasonably’.

We have found it convenient to renumber the various grounds and paraphrase them in a way that makes them more understandable. The result of this process, which led us to identify 11 grounds of review, is shown in the table below.

No given by this court	No in review book	Ground of review – the petition Judge is alleged to have made errors of law or of fact and law or acted unreasonably in that he:
1	1(a) 1(d)(i)	did not take into account admissions made by respondents’ witnesses that the presiding officer tampered with the inner lid of the ballot-box and tampered with ballot papers already in the box by opening the inner lid and inserting his leg in the ballot-box contrary to Section 130(1)(e) of the Organic Law;
2	1(b)	reconsidered the propriety and competency of the first ground of the petition (ground 5A) based on speculation and conjecture;
3	1(c)	took into account matters not in pleadings by alleging that a written statement of Albert Moses was signed under the name Anton Yapa;
4	1(d)(ii)	dismissed the second ground of the petition (ground 5D) without giving due weight to the rejection by the returning officer of objections without good and justifiable reasons;
5	1(d)(iii)	dismissed the second ground of the petition (ground 5D) without giving due weight to the petitioner’s evidence as to the condition of the ballot papers in the disputed ballot-box, viz they were folded and compacted in a neat manner and those at the top had footprints on them;
6	1(d)(iv)	dismissed the second ground of the petition (ground 5D) without giving due weight to the unreliable evidence of the presiding officer and the returning officer, which was discredited due to fanciful, unsatisfactory and self-serving answers to questions in cross-examination;
7	1(d)(v)	dismissed the second ground of the petition (ground 5D) without giving due weight to the allegation that the presiding officer did not provide his election returns to the returning officer before commencement of scrutiny at the counting centre;
8	2(c) 2(d)	misapprehended the evidence of the three principal witnesses for the petitioner regarding the indelible ink issue;
9	2(e) 2(f) 2(g) 2(h)	misconceived the evidence of Inspector Baundo, Albert Moses and Agoria Parila as to whether the voting was rushed or orderly or whether the security forces were offered things thereby exceeding the jurisdiction of the court resulting in a miscarriage of justice;
10	2(i)	made absurd and unreasonable observations and inferences about the lack of evidence to support the allegation that people other than the presiding officer had endorsed the ballot papers;
11	3(a) 3(b)	acted unreasonably by drawing the inference that Inspector Baundo’s undated handwritten letter to the Tari field commander was written many months after the petition was filed.

Having identified 11 grounds of review we will now address each one in turn. We will in relation to each ground set out the applicant’s submission and the respondents’ response and then determine whether the ground is sustained.

The argument was that the petition Judge failed to take into account admissions at the trial by some of the respondents’ witnesses that the presiding officer tampered with the inner lid of the ballot-box. Three of the respondent’s witnesses gave evidence that the presiding officer opened the inner lid of the ballot-box and inserted his leg into the open ballot-box and pressed down the ballot papers. The applicant argued that this was a clear error contrary to Section 130(1)(e) of the Organic Law which damaged the integrity of the ballot-box, resulting in a material error under Section 218(1) of the Organic Law. The first ground of the petition had alleged errors by the presiding officer by cutting and removing the inner plastic seal tag, opening the lid and tampering with the ballot papers. Therefore the petition Judge should have upheld that ground of the petition.

The applicant argued that that concessions of fact made at the hearing of the petition meant that it was not open to the petition Judge to disbelieve the evidence presented by the petitioner. Mr Leo argued that it is a fundamental principle of evidence that if at the end of a trial a party’s admission stands unimpeached and uncontradicted then it is conclusive against him.

The admissions relied on by the applicant included the following excerpts from the affidavit of Michael Honjoru:

Towards the end of the polling, the ballot-box was full. But there were still voters waiting to cast their votes. In order to create space, one of the security personnel, Anna Gand and one of the polling officials used a stick and ruler to push down the ballot papers through the cleft of the ballot-box in order to create space. In so doing, the inner plastic seal that was affixed to the inner lid of the ballot-box was broken.

The presiding officer then consulted all members of the security team and the polling officials because he had no other ballot-box and there were still a good number of voters yet to cast their votes. All the security personnel and the polling officials agreed that he should remove the broken seal and replace it with a new one. Therefore, the presiding officer announced to the voters and the public that the inner seal had been accidentally broken and he was going to replace it with a new one in order to allow polling to continue to completion.

The presiding officer then removed the broken seal and opened the inner lid of the ballot-box. He then used his leg to push the ballot papers down to create enough space. After he had done that, he closed the inner lid and secured the inner lid with a new plastic seal. The new plastic number was read out to the scrutineers as well as the polling officials and the public.

The presiding officer, David Anderson, gave the following evidence during cross-examination.

Q: And then you said something about – not you said, but I think – but there was evidence from one of the witnesses for the petitioner that you opened the inner lid and stepped onto the ballot papers to push the ballot papers down.

A: Yes, I did. It was after the tag broke I removed the tag to check; as I demonstrated; let the 300 voters vote and I pushed it with my feet down.

HIS HONOUR: So, did you have to put it down on the ground to do that or was it where it was?

Q: No, I mean, was the ballot-box on some table or was it on the ground or where was it?

Q: It was on the ground. And then you opened the inner lid after the tag broke and showed it to everybody and then you put – with both legs, did you have to stand with both legs inside or just one leg only?

Q: So with your right leg – you put it inside and then you exerted pressure to push the ballot papers down?

A: And then I stood on my feet – accommodating other voters’ ballot papers.

The applicant argued that this was clear evidence of tampering with the ballot-box and its contents contrary to Section 130(1)(e) of the Organic Law, which states that polling is to be conducted as follows:

... when a ballot-box is full or no longer required for the polling, or at the end of the polling period for all polling places which he is the presiding officer, which ever first occurs, the presiding officer shall, with the least possible delay, forward the ballot-box for the purposes of scrutiny, and it shall on no account be opened except in accordance with this Law. [Emphasis added]

The applicant also relied on the provisions of the presiding officer’s manual that was admitted into evidence at the trial as exhibit S. This provides that a ballot-box can only be opened at the counting centre:

The lock and seal on the inner lid must not be touched, as it can only be broken by the returning officer prior to the commencement of the scrutiny at the counting centre.

The applicant argued that the actions of the presiding officer gave rise to an electoral offence under Section 191 of the Organic Law which provides that any person who unlawfully destroys, takes, opens or otherwise interferes with a ballot-box and the ballot papers is guilty of an electoral offence punishable on conviction by imprisonment for six months.

The presiding officer’s conduct was a clear error that brought the integrity of the ballot-box into question. In fact the integrity of the ballot-box was destroyed, the applicant argued.

The applicant acknowledged that the integrity of the ballot-box is the crucial issue. This was the principle reaffirmed by the Supreme Court in Supreme Court Review Nos 22 and 23 of 2003, Application by Ben Semri and the Electoral Commission (2003) SC723. In that case the court held that the failure to affix the inner and outer seals of a ballot-box did not necessarily affect the integrity of the ballot-box. It is necessary to determine all other relevant circumstances to make a determination as to whether the integrity of a ballot-box was adversely affected by an error made by the presiding officer or the returning officer. In Semri the Supreme Court concluded that because the ballot-box was securely fastened with a padlock and there was no suggestion that the padlock had been removed unlawfully, there was no proper basis for questioning the integrity of the ballot-box. If there is no evidence of any interference with a ballot-box which gives rise to the question of integrity there is no error in counting the ballot.

The applicant argued that the facts of the present case were distinguishable from those in Semri as the presiding officer had admitted to interfering with the ballot-box by opening the inner lid and then interfering with the ballot papers with his leg.

The applicant argued that the present case was similar to the circumstances prevailing in Peter Peipul Ipu v Pila Niningi and the Electoral Commission (1998) SC580 in which the Supreme Court (Kapi DCJ, Hinchliffe J, Sheehan J) concluded that extra ballot papers must have been deposited in the ballot-box as there was no outer seal to secure the box and there were votes inside it that were not accounted for.

The applicant also relied on Section 122(2) of the Organic Law to support the argument that the integrity of the ballot-box at Parinamu No 2 had been irretrievably interfered with by the conduct of the presiding officer.

A ballot-box shall have a cleft in the cover through which the ballot papers may be deposited in the box, and shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot papers or other matters or things can be deposited or placed in the box or withdrawn from it.

The applicant also relied on the decision of the Supreme Court in Reuben Kaiulo v James Genaboro and Ron Ganarafo (1998) SC567 to highlight the importance of examining whether the integrity of the ballot-box was intact. The applicant also referred to Mathew Poia v Electoral Commission and Fabian Inne (2003) N2390.

The applicant argued that the petition Judge’s failure to give effect to the concessions and admissions by the respondents’ witnesses meant that his Honour was led into error in his conclusions on the second ground of the petition, which dealt with errors made by the returning officer. The second ground of the petition claimed that the returning officer erred by counting the disputed ballot-box even when it was made known to him that the presiding officer had tampered with it.

The first respondent did not agree that any of the respondents’ witnesses conceded or admitted to any facts that had been pleaded in the petition. The allegations in the petition were that the presiding officer cut and removed the inner plastic seal tag No 738594; opened the inner lid of the ballot-box; emptied the ballot papers despite objections from others; sought assistance from supporters and agents of the first respondent; directed them to fold the ballot papers and stack them neatly in the ballot-box; distributed 800 ballot papers to the first respondent’s supporters and agents and allowed those persons to cast votes for the first respondent. The first respondent took the approach that not all of those facts were proven. Therefore the petition Judge, because he was not impressed by the credibility of the petitioner’s witnesses and was impressed by the credibility of the respondents’ witnesses, concluded correctly that the petitioner had not proven his case.

By contrast the second respondent conceded that it had, in fact, been conceded by the second respondent at the hearing of the petition that the presiding officer had removed the broken inner plastic seal tag No 738594 and had opened the inner lid of the ballot-box. There was evidence that the inner plastic seal tag No 738594 had been accidentally broken after various polling officials had stuck rulers and sticks into the ballot-box in order to push down the ballot papers already in the box. That was done to create more space. There was also evidence that the presiding officer after removing the inner plastic seal tag No 738594 did open the inner lid and used the foot of his right leg to push the ballot papers down into the ballot-box to create more space. The presiding officer then closed the inner lid and polling resumed. The second respondent argued that there remained contentious issues of fact about the following matters:

The second respondent argued that there were no concessions to those facts made at the hearing of the petition. They were disputed facts and the petition Judge found in favour of the respondents. His Honour reached that conclusion as he was not impressed with the demeanour of the petitioner’s witnesses and he believed the evidence provided by the principal witnesses for the respondents.

The second respondent considered that the presiding officer’s actions in opening the inner lid and using his foot to push down ballot papers may constitute errors or omissions. However, an error or omission by a presiding officer does not necessarily give rise to a material error capable of vitiating the election. The second respondent agreed with the petitioner that the relevant test is set out by the Supreme Court in Semri’s case. That is: did the errors adversely affect the integrity of the ballot-box? The second respondent argued that that question should be answered in the negative. It followed that the presiding officer made no material error. Therefore the returning officer made no material error.

The petition Judge did not make any express findings of facts concerning the actions of the presiding officer in relation to the ballot-box. It is clear that the respondents’ witnesses gave evidence that the presiding officer did certain things in relation to the ballot-box. He opened it and put his right foot into it. The first respondent’s submission at the hearing of this review – that nothing was conceded or admitted – is unhelpful and inaccurate. Quite a bit was admitted. This has been acknowledged by the second respondent.

We have considered the evidence that was before the National Court and consider that his Honour should, with respect, have made the following findings of fact based on the uncontested evidence:

As to the other claims made in the first ground of the petition his Honour, with respect, should have stated what the allegations were and stated expressly that he rejected them. These allegations were that the inner plastic seal tag had been cut deliberately with a knife; that the ballot-box had been emptied; that the first respondent’s supporters or agents had been asked to refold and stack the used ballot papers in the box to create more room; and that the presiding officer had distributed 800 ballot papers to the first respondent’s supporters and agents and allowed them to vote.

However we accept the second respondent’s submission that his Honour tacitly made those findings of fact by his emphatic rejection of the petitioner’s evidence. His Honour clearly expressed his disapprobation of the petitioner’s witnesses’ evidence and evidently considered that it was not necessary to make express findings of fact.

That, we consider, is a fair and reasonable assessment of his Honour’s reasoning. That being the case we cannot uphold the first ground of review which was premised on the proposition that the petition Judge did not take into account the concessions and admissions made by the second respondent’s witnesses.

If we were persuaded to the view that his Honour did make an error of law by not sufficiently declaring his findings of fact, we would have been persuaded by the second respondent’s argument that the integrity of the ballot-box was not adversely affected by the conduct of the presiding officer.

Mr Leo properly conceded that it is not simply a matter of a petitioner identifying some error on the part of a polling official. The petitioner must go one step further and show that the integrity of the ballot-box and the ballot papers within it have been substantially and adversely affected. That is the principle reaffirmed by the Supreme Court in Semri’s case. The petition Judge did not expressly apply the test in Semri to the facts of this case as he probably should have done. However, if he had done that he would have reached the same conclusion. Though some errors may have been made by the presiding officer they were not such as to substantially and adversely affect the integrity of the ballot-box.

In any event we consider that if the presiding officer technically breached the law, what he did was in all the circumstances reasonable. We are mindful that presiding officers and returning officers in this country are often placed in very difficult, highly charged and stressful situations. They are called upon to make important decisions often in a hostile environment and often without the benefit of all the advice that might be reasonably be thought to be available to help them.

We have considered all the prevailing circumstances in this case. The presiding officer was clearly in a difficult position. He had only one ballot-box. It was full. Yet there were many apparently eligible voters waiting to cast their votes. What was he to do? Push the ballot-box to its physical limit and therefore perhaps be in technical breach of the Organic Law by causing the inner plastic seal to break? Or close the voting and turn away hundreds of apparently eligible voters, thereby denying them their constitutional right to vote? What was the worse of the two evils? Clearly the latter. The presiding officer chose to avoid the latter and by doing so he allowed the waiting voters to exercise their constitutional rights. He acted reasonably in all the circumstances.

GROUND NO 2 – RECONSIDERATION OF PROPRIETY AND COMPETENCY OF FIRST GROUND OF PETITION

The petition Judge erred by reconsidering the propriety and competency of the first ground of the petition and concluding that it was misconceived, after having earlier dismissed an objection to the competency of the first ground. Further his Honour drew conclusions about the propriety and competency of the first ground of the petition that were based on speculation and conjecture.

The applicant referred to the written ruling on the objection to competency given by his Honour in James Marabe v Tom Tomiape and Andrew Trawen EP No 75 of 2003, 20.04.04, unreported.

The respondents had argued that both the first and second grounds of the petition failed to clearly raise issues and that the other parties would not know the case they had to meet. His Honour concluded in relation to the first ground of the petition as follows:

I have considered the submissions by all the parties relating to this ground. Whilst I accept the submissions by the respondents that the allegations against the presiding officer, at Parinamu No.2 Polling place namely David Anderson of having committed, allowed, perpetuated or facilitated certain illegal practices, or errors or omissions or irregularities are all couched in general terms in the opening paragraph of that ground, the “facts” pleaded or set out do clearly show the date, time, place, names of individuals and the particular conduct of or to that individual by or under the direction of the presiding officer and as such I cannot see how the issues are not clearly set out to prevent the respondents from preparing their case and for the court to see clearly what the issues are.

I certainly have no difficulty understanding what the issues are. Whether the petitioner proves those allegations by evidence is another matter.

The applicant argued that at the hearing of the petition the petition Judge had a re-look at the pleadings in that he concluded that the allegation that 400 to 500 voters voted two to five times failed to make sense and was misconceived. The petition Judge changed his mind and he was not allowed to do that. His jurisdiction to make findings on the competency of the grounds was exhausted by his ruling of 20 April 2004. His Honour could therefore not properly draw the conclusion that this allegation in the petition did not make sense or was misconceived. That is, the petition Judge erred in law by revisiting his ruling on the competency of the first ground of the petition.

The first respondent submitted that the petition Judge was not estopped from reconsidering the competency of a ground of a petition by an earlier ruling that dismissed an objection to competency.

The second respondent simply argued that the petition Judge had not revisited the competency issue. He simply decided that if the petitioner’s witnesses were to be believed – 400 to 500 voters had voted two to five times – then the number of votes cast would have exceeded 2,000.

We uphold the first respondent’s submission that a petition Judge is not estopped by an earlier refusal to dismiss an objection to competency, from finding that a ground of an election petition is misconceived. The purpose of hearing an objection to competency is to ensure that a prima facie consideration of the ground of a petition makes it clear to the other parties what the case is that they have to meet. Sometimes a Judge will not dismiss an objection and give the benefit of the doubt to the petitioner. However, when the issue is fully argued and evidence is brought and further light is shed on the issue at the hearing of the petition, it might transpire that the Judge will conclude that, in fact, the ground is misconceived. Such a scenario is neither extraordinary nor improper.

We find that the petition Judge made no error of law by commenting on or revisiting the competency of a part of the first ground of the petition and saying it was misconceived. We dismiss ground of review No 2.

It is very hard for us to understand what this is about. The ground of review is set out in paragraph 5(1)(c) of the application of review in the following terms:

The learned trial Judge erred in law by acting improperly, unjustifiably, unreasonably and/or in excess of his jurisdiction ... in taking into account matters not in evidence namely, relying on a pleading at ground 5D(i)(e) alleging a written statement of Albert Moses signed under the name Anton Yapa to draw adverse inferences against Moses Albert resulted in a miscarriage of justice. [sic]

The first respondent’s submission shed some light on the applicant’s argument. Mr Manase points out that in the particulars to the second ground of the petition it was pleaded that there were a number of letters of complaint and objections brought to the attention of the returning officer urging him not to open and count the votes in the disputed ballot-box. One of those objections (referred to in paragraph 5D(i)(e) of the petition) was a written statement of Albert Moses signed under the name Anton Yapa. That statement was supposed to be an annexure to the affidavit of the petitioner James Marabe, but it was not annexed to that affidavit. His Honour noted the absence of the annexure and drew the inference that if there were such a person by the name of Anton Yapa there had been collusion between him and Albert Moses and that what Albert Moses had deposed to in his affidavit was based on what somebody else had put to him or influenced him to say.

The second respondent also highlighted the absence of Anton Yapa’s statement and argued that his Honour was entitled to draw the inference he did.

We agree with the respondents that the petition Judge was entitled to draw an adverse inference regarding the credibility of the petitioner’s evidence in light of the absence of the Anton Yapa statement. We dismiss ground of review No 3.

GROUND NO 4 – REJECTION OF OBJECTIONS BY RETURNING OFFICER WITHOUT GOOD AND JUSTIFIABLE REASONS

The petition Judge erred by dismissing the second ground of the petition as the returning officer was faced with a large number of strong objections to his opening the disputed ballot-box and counting the votes inside it. There was ample evidence available to the returning officer that the ballot-box had been tampered with. However he ignored the strong objections and opened the box and counted the votes inside it without giving good and justifiable reasons for doing so.

Both respondents argued that the second ground of the petition rose or fell with the first ground. The petition Judge took that approach also. The same thing, they argue, applies in relation to the hearing of this review. If the grounds of review regarding the petition Judge’s dismissal of the first ground of the petition are dismissed, it follows that the grounds of review regarding his Honour’s treatment of the second ground of the petition should suffer the same fate.

We uphold the respondents’ submission. We agree that the fate of the second ground of the petition at the trial depended on how the first ground of the petition was dealt with. His Honour could hardly have reached the conclusion that the presiding officer made no errors that affected the result of the election and then conclude nevertheless that the returning officer did make errors by deciding to open and count the contents of the disputed ballot-box.

The case shows that the returning officer was placed in a very difficult position. Undue influence from many quarters was placed upon him. Quite unreasonable and unacceptable pressure was being exerted. A hostile atmosphere within the counting centre was created by a number of people with vested interests in the outcome of the election. The evidence points to the returning officer making a considered decision to count the disputed ballot-box. That decision ought to have been respected by all concerned, safe in the knowledge that if it were wrong, the error could be corrected through the processes of the courts. However we find that the returning officer made no error.

We accordingly find no error in the way that the petition Judge dealt with this issue. We dismiss ground of review No 4.

GROUND NO 5 – DISMISSAL OF SECOND GROUND OF PETITION WITHOUT GIVING DUE WEIGHT TO CONDITION OF THE BALLOT PAPERS

The petition Judge erred by not giving due weight to the evidence from two witnesses about the condition of the ballot papers when the ballot-box was opened at the counting centre. The evidence was that the ballot papers were folded, packed up or compacted in a neat manner. The ballot papers at the top had footprints on them. This was consistent with the ballot-box and the ballot papers being tampered with. The ballot papers did not fall out easily and freely like ballot papers from other ballot-boxes.

Similar to the other submissions relating to the second ground of the petition, both respondents argued that the second ground of the petition rose or fell with the first ground.

We uphold the respondents’ submission. The petition Judge properly concluded that the second ground of the petition fell once the first ground was decided against the petitioner.

We reiterate our views on the powers, functions, duties and responsibilities of a returning officer. At the time of this election there were detailed provisions in the Organic Law detailing the manner of counting of votes, scrutinising all votes, deciding on a re-count where necessary and declaring the results of an election. These provisions are set out in Part XIV (the scrutiny), containing Sections 147 to 172 of the Organic Law; Part XV (interpreters) containing Sections 173 and 174; and Section 175 of Part XVI (the return of the writs).

A returning officer must exercise a high degree of care and consideration and exercise his or her discretion in accordance with law. The returning officer’s decisions have important consequences. He or she is entitled to receive submissions from duly appointed scrutineers. However, the returning officer’s capacity to make careful and considered decisions must not be impaired by the creation of a hostile environment within the counting centre. The returning officer’s decisions are not irreversible. If an error has been made it can be corrected through the election petition process.

In the present case the fact that the ballot papers gave the appearance of being neatly stacked or did not fall out freely from the ballot-box or that some ballot papers had footprints on them did not mean that the returning officer was not allowed to count them. There was a legitimate explanation available for those apparent irregularities. The returning officer evidently exercised the discretion available to him after considering a large number of vigorous submissions. He was not obliged due to the number or the vigour of the submissions to accede to them. Nor was he obliged as a matter of law to give reasons for his decision to count the disputed ballot-box. We find no error in the exercise of the discretion by the returning officer.

We accordingly find no error in the manner in which the petition Judge dealt with this issue. We therefore dismiss ground of review No 5.

GROUND NO 6 – DISMISSAL OF SECOND GROUND OF PETITION WITHOUT GIVING DUE WEIGHT TO THE UNRELIABLE EVIDENCE OF PRESIDING OFFICER AND RETURNING OFFICER

The principal witnesses for the second respondent – the presiding officer David Anderson and the returning officer Henry Gull – were discredited in that they gave fanciful, unsatisfactory and self-serving answers in cross-examination and were therefore unreliable.

Both respondents argued, as before, that the second ground of the petition fell with the first.

We uphold the respondents’ submission for the same reasons given for ground Nos 4 and 5. In any event we would have dismissed this ground of review as not being a proper ground. The petition Judge made a proper and considered assessment of the credibility of all the witnesses. His Honour made a discrete finding that he did not believe the petitioner’s witnesses on the contentious issues of fact.

GROUND NO 7 – DISMISSAL OF SECOND GROUND OF PETITION DESPITE PRESIDING OFFICER’S FAILURE TO PROVIDE RETURNS TO RETURNING OFFICER

It was part of the second ground of the petition that the presiding officer did not give his electoral returns to the returning officer before the returning officer opened and counted the contents of the disputed ballot-box. The returns referred to were set out in the returning officer’s manual for 2002: the presiding officer’s return of voters and ballot papers (form 58); the presiding officer’s record of declaration of voters (form 56); summary of presiding officer’s return of voters and ballot papers (form 67); sex tally sheet (form 55); spoilt ballot papers envelope (form 60); the used common roll; and the memo book (form 65). The returning officer’s manual also stated:

The returning officer must ensure that all the presiding officer’s returns (forms 55, 56, 58 and 67) are held by him/her before the commencement of scrutiny.

The applicant argues that this was an independent standalone ground of the petition which did not turn on the fate of any of the parts of the first ground of the petition. His Honour therefore erred in not addressing this particular sub-ground of the petition, which had been described in the petition as ground 5D(ii).

The respondents argued as they had done in relation to grounds 4, 5 and 6: that this part of the petition could not stand alone and his Honour made no error of law in dismissing it.

We see some merit in this ground of review. We agree that the issue about the returning officer not having the returning officer’s forms with him before the votes were counted was a discrete ground of the petition. It did not necessarily rise or fall with the first ground of the petition. The argument was clear enough: the returning officer counted the votes without having all the necessary forms before him. The evidence bears this out. It would have been preferable for his Honour to make an express finding of fact on this issue.

However, even if his Honour had found as a fact that the returning officer did not have the correct forms before the counting started, the problem with this ground of the petition is that the presiding officer’s failure to give all the returns and forms to the returning officer at the relevant time and the returning officer’s decision to go ahead with the voting in the absence of the returns and forms did not, it appears, involve any breach of the law or any error on the part of either officer. There may have been a breach of the returning officer’s manual. But the legal status of the manual was apparently not addressed at the hearing of the petition. Nor has it been made clear during the course of this review. Furthermore we cannot see that the apparent breach of the manual by the presiding officer or the returning officer meant that the result of the election was in any way affected.

The petition Judge misconstrued the evidence of the petitioner’s witnesses. Moses Albert, Inspector Baundo and Agoria Parila did not give inconsistent evidence about why indelible ink was not applied to the fingers of the painted voters. The petitioner’s witnesses were merely repeating the various reasons the presiding officer gave for not applying the indelible ink.

The respondents argued that the evidence was clearly inconsistent and it was open to the petition Judge to make a finding to that effect.

We have considered the evidence before the National Court on the indelible ink issue. We agree with the petition Judge’s findings that the evidence was inconsistent. It was clearly open to his Honour to draw that conclusion. His Honour indicated that he paid close attention to the demeanour of the various witnesses and he was not impressed with the demeanour of the petitioner’s witnesses. It was a case of inconsistent evidence being given within the testimony of some witnesses and inconsistencies between the testimonies of different witnesses, combined with poor demeanour by the principal witnesses.

There was no error of law made by the petition Judge. Nor was there any miscarriage of justice. We dismiss ground of review No 8.

GROUND NO 9 – MISCONCEPTION OF EVIDENCE OF PETITIONER’S WITNESSES RE CIRCUMSTANCES OF VOTING AND THINGS OFFERED TO SECURITY FORCES

The submission here was similar to the submission on ground No 8. The petition Judge misconstrued the evidence. Inspector Baundo gave evidence that the Parinamu people brought sugarcane, cooking pork and other foodstuffs and drinks into the polling place and heaped them at the feet of the presiding officer. The mumu had been organised for the polling officers who ate the food together with the Parinamu people. Moses Albert testified that some people came in with betel nut, lime and cigarettes and offered them to the security forces. At about 11.00 am some people brought him pork, cooked bananas and kaukau. There were no inconsistencies in those pieces of evidence. Moses Albert did not give any evidence about people rushing in to vote as it was not part of his evidence. He was not cross-examined on that issue.

The respondents argued that the inconsistencies were clearly apparent, as highlighted by the petition Judge.

There is some merit in the applicant’s submission. The fact that one witness has not mentioned something on which evidence was given by another witness does not necessarily give rise to an obvious inconsistency. However, on the other hand we appreciate the logic in the petition Judge’s reasoning that if one witness was giving clear and precise details about people rushing in or about what things were being brought in from outside to give to the polling officials or the security forces and another witness who was in the polling place did not mention those things a reasonable inference to draw is that the evidence is unreliable and suspect, if not inconsistent.

In the final analysis we do not consider that the comments made on this aspect of the evidence by the petition Judge were determinative of any part of the petition. We find that his Honour made no error of law. We therefore dismiss ground of review No 9.

GROUND NO 10 – ALLEGATION THAT PEOPLE OTHER THAN THE PRESIDING OFFICER ENDORSED THE BALLOT PAPERS

The petition Judge made absurd and unreasonable findings regarding endorsement of the ballot papers. There was clear evidence that the presiding officer did not endorse all the ballot papers. In fact he gave evidence himself that the assistant presiding officer, Anna Kuku, took over from him at one point. There was evidence that on the back of some ballot papers the name “D Andison” [sic] were printed. Whereas on the back of other ballot papers his signature was written.

The first respondent argued it was open to the petition Judge to draw the conclusion that he did – that the presiding officer had endorsed all the ballot papers – in view of the many inconsistencies in the evidence of the petitioner’s witnesses.

The second respondent acknowledged that the presiding officer, David Anderson, confirmed under cross-examination by Mr Leo that Anna Kuku was amongst other things initialling ballot papers at the time that he went to see the mobile squad. The second respondent conceded that Anna Kuku had printed the name of the presiding officer on the back of some ballot papers in his absence.

We see some merit in this ground. The second respondent has properly conceded that the presiding officer did give evidence that for a short time at least when he went to talk to the mobile squad he left the assistant presiding officer, Anna Kuku, in charge. She took over from him and that included endorsing ballot papers. We tend to think that this was the preferable finding of fact for his Honour to have made.

However, the question of whether the presiding officer personally endorsed each of the ballot papers was not a ground of the petition. It was not therefore a material finding of fact his Honour was obliged to make. It also had no bearing on the result of the election. The evidence does not support the conclusion that the integrity of the ballot papers or the ballot-box was impaired. We are not satisfied that anything improper or unlawful happened when the assistant presiding officer endorsed some of the ballot papers.

GROUND NO 11 – UNREASONABLE TREATMENT OF INSPECTOR BAUNDO’S UNWRITTEN LETTER TO TARI FIELD COMMANDER

The applicant went to great lengths in his application for review to set this ground out as a discrete ground. It was listed as the third ground of review under the heading ‘failure to act reasonably’. It was alleged that the petition Judge failed to act reasonably by drawing an inference that Inspector Baundo’s undated handwritten report addressed to the Field Commander at Tari Police Station was written many months after the petition was filed. It was alleged that his Honour failed to give due weight and consideration to seven different matters.

Surprisingly this ground of review was pursued with a little vigour in Mr Leo’s written or oral submissions.

The respondents asserted that his Honour’s conclusion on this part of the evidence was entirely reasonable. There were two reports by Inspector Baundo in evidence. One was handwritten and undated the other was typed and dated 28 April 2003.

We can detect no error in his Honour’s comments and findings regarding Inspector Baundo’s report. His Honour did not regard Inspector Baundo as a credible witness. The discrepancy detected in the two reports to the Tari Field Commander reinforced his Honour’s conclusion in that regard. A petition Judge is in the best position to make an assessment of the credibility of documentary and oral evidence. We are not in a position to second-guess his Honour’s conclusion.

All grounds of review have been dismissed. The applicant has failed to establish that there is any clear legal ground meriting a review of the decision of the National Court, that there are any cogent and convincing reasons or exceptional circumstances for setting aside the National Court’s decision or that it is in the interest of justice that the review be granted. The review will therefore be dismissed.

The general rule is that costs follow the event, ie a successful party has its costs paid for by the losing party. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

This review has taken the Supreme Court longer than anticipated to determine because of the difficulties encountered in interpreting and understanding an application for review which has been very elaborate, convoluted and difficult to appreciate. When parties come before the Supreme Court to challenge judicial decisions of the National Court, whether by appeal or review, they bear a heavy burden of setting out the grounds of challenge in a concise, clear and coherent manner. In this case, despite the enormous amount of work that has clearly been put into this case by the applicant’s lawyers, the application for review failed to meet those requirements. The court has had to devote considerable time and energy deciphering the grounds of review and the submissions in support of it, while at the same being conscious of its duty to ensure that the applicant’s concerns and interests are adequately protected and that justice is done and seen to be done.

The effective, efficient and expeditious dispensation of justice by the Supreme Court depends on all parties making concise and coherent applications and submissions.

________________________________________________________________________
Lawyers for the applicant : Leo Lawyers
Lawyers for the 1^st respondent : Steeles Lawyers
Lawyers for the 2^nd respondent : Nonggorr & Associates

Supreme Court of Papua New Guinea

Re An Election Petition for the Tari-Pori Open Electorate; Marabe v Tomiape [2006] PGSC 6; SC827 (3 March 2006)