Yama v Trawen [2013] PGSC 57; SC1290 (24 October 2013)

SC1290

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REVIEW (EP) NO 52 OF 2013

APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN

PETER CHARLES YAMA
Applicant

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
First Respondent

AND

STEVEN BIKO,
RETURNING OFFICER FOR USINO-BUNDI OPEN ELECTORATE
Second Respondent

AND

ANTON YAGAMA
Third Respondent

Waigani: Makail, J
2013: 04th & 24th October

SUPREME COURT REVIEW – ELECTION PETITIONS – Application for leave for judicial review – Review of National Court decision – Declaration of member following a recount of votes – Grounds of – Error of law and findings of fact – Trial judge's failure to allow applicant to cross-examine witnesses – Result of recount of applicant's first preference votes significantly less than original count – Tampering of ballot-papers – Constitution – s. 155(2)(b) – Evidence Act – ss. 34, 35 & 36 – Supreme Court Election Petition Review Rules, 2012 – O 5, rules 1-5.

Facts

This was an application for leave for judicial review of the decision of the National Court which dismissed the applicant's application seeking inter-alia, orders to reject the result of recount of votes and declare him as duly elected member for Usino-Bundi Open electorate. The applicant alleged that ballot-papers were tampered with and the evidence proving the allegation was circumstantial.

The applicant submitted that (a) the trial judge failed to allow him to cross-examine the witnesses for the respondents, (b) failed to find that the result of recount for his first preference votes were significantly less than the original count and this was a result of ballot-papers being tampered with. The tampering of ballot-papers was a result of first a lock-out of candidates' scrutineers from the counting centre by the Returning Officer and secondly, unaccounted or unexplained butts of ballot-papers found in an envelope lying on kunai grass in Madang town near the Electoral Commission office. These events strongly suggested that the ballot-papers were tampered with thus, resulting in the result of the recount being flawed.

Held:

1. A failure to bring the notice to cross-examine witnesses under s. 36 of the Evidence Act to the attention of the trial judge is an error on the part of the applicant and not on the Court. It follows the applicant's submission that the trial judge's failure to call the Electoral Commissions' witnesses for his counsel to cross-examine them raises an important point of law is without merit and does not raise an important point of law that required further consideration by the Court.

2. Given that the evidence on the tampering of ballot-papers was circumstantial, the law on circumstantial evidence is that there must be one reasonable inference drawn from whole circumstances of the case that ballot-papers were tampered with.

3. Given the lock-out of candidates' scrutineers from the counting centre by the Returning Officer, the discovery of butts of ballot-papers found in an envelope lying on kunai grass in Madang town near the Electoral Commission office, the Returning Officer's explanation for the lock-out of candidates' scrutineers at the counting centre, that the discovery of butts of ballot-papers near the Electoral Commission office were butts of ballot-papers and not the actual ballot-papers and that ballot-boxes were securely locked, the inference that ballot-papers were tampered with was not the only reasonable inference or conclusion open to the trial judge to draw in the circumstances of the case.

4. A strict scrutiny of the application including a consideration of the trial judge's reasons, three of which have been highlighted above, but without descending into the merits of the substantive application, the applicant failed to established a case of gross error in his Honour's assessment of the evidence and subsequently, his findings of fact in relation to the tampering of ballot-papers. Similarly, the applicant failed to establish that the finding that the integrity of the recount remained intact is so outrageous or absurd that it ought to be reviewed otherwise injustice would occur.

5. The application for leave for judicial review was refused with costs.

Cases cited:

Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354
Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935
Application by Herman Joseph Leahy (2008) SC855
Application of Ludwig Patrick Schulze (1998) SC572
Kasap -v- Yama [1998-1999] PNGLR 81
Application by Ben Semri (2003) SC723
Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244

Counsel:

Mr T Ilaisa, for Applicant
Mr H Nii, for First & Second Respondents
Mr T Boboro, for Third Respondent

RULING

24th October, 2013

1. MAKAIL, J: The applicant Mr Peter Charles Yama came second to the third respondent Mr Anton Yagama in the election for the Usino-Bundi Open electorate in the 2012 General Election. Aggrieved by the result, he filed an election petition in the National Court disputing the election of Mr Yagama. On 16th May 2013, the National Court presided by Justice Cannings upheld the petition and ordered a recount of votes on the grounds of among others, errors and omissions committed by counting officials during counting of votes at Walium station. A recount was conducted and following that, Mr Yama came second to Mr Yagama for the second time. The result of the recount was presented to the Court for endorsement. Before the Court could endorse the result, on 15th August 2013, Mr Yama filed an application seeking among other orders, that the Court reject the result and instead, declare him as duly elected member for the electorate. Mr Yagama also filed an application seeking among other orders, an order that the Court accepts the result of the recount and that he be declared duly elected member for the electorate.

2. On 03rd September 2013, Justice Cannings heard the application and on 05th September 2013, dismissed Mr Yama's application and granted Mr Yagama's application. The reasons for this decision were that Mr Yama failed to prove that there were good grounds to refuse the application by Mr Yagama to endorse the result of the recount and conversely Mr Yagama proved good grounds for the Court to endorse the result of the recount: see Peter Charles Yama -v- Anton Yagama & Electoral Commission (2013) N5354.

Principles on Leave for Judicial Review

3. Mr Yama seeks leave to review that decision pursuant to s. 155(2)(b) of the Constitution and O 1, rr 1- 5 of the Supreme Court Election Petition Review Rules, 2012 ("SCEPR Rules"). Counsel for the parties canvassed the relevant principles on grant of leave in their submissions and I have considered them. These are:

3.1. The application must raise an important point of law and that is not without merit: Erie Ovako Jurvie -v- Bonny Oveyara & The Electoral Commission of Papua New Guinea (2008) SC935, Application by Herman Joseph Leahy (2008) SC855 and Application of Ludwig Patrick Schulze (1998) SC572; and/ or

3.2. If the application raises questions of fact, a gross error must be clearly apparent or manifested on the face of the evidence before the Court: Kasap -v- Yama [1998-1999] PNGLR 81, Application of Ludwig Patrick Schulze (supra) or where on the face of finding of fact, it is considered so outrageous or absurd so as to result in injustice: Application by Ben Semri (2003) SC723.

4. As to whether an applicant establishes a case for review, the Supreme Court has said that a strict scrutiny is required to ensure that only applications that have points of law and fact which have clear merit proceed to hearing. It is not enough for an applicant to simply demonstrate that he or she has an arguable case on review. Put the other way, an applicant must demonstrate that he or she has a serious issue on a point of law or fact to be determined such that if leave is granted, the application is likely to succeed. At the leave stage, the judge is and should not concern him or herself with the merits of the substantive application. He or she must avoid a discussion and consideration of the merits of the case under any of the principles on grant of leave.

5. In the recent Supreme Court ruling in the same election petition Anton Yagama -v- Peter Charles Yama & Electoral Commission (2013) SC1244, Justice Batari sitting as a single Judge of the Supreme Court said that:

"In essence, the higher standard of scrutiny of the materials supporting the leave application before the court is implied from the requirement to show apparent error of law or error of fact on the face of the record. If the error is a question of law, it must be a serious and important point of law to be determined and that it is not without merit. If factual error is alleged, the error must be overwhelming, or it is 'a gross error clearly apparent or manifested on the face of the evidence,' or the decision or exercise of discretion was excessive or is 'so outrageous or absurd so as to result in injustice'. This high requisite for leave was recently restated in an obiter dicta by the Supreme Court in, Anton Yagama v Peter Charles Yama, Steven Biko, Andrew Trawen and the Electoral Commission (2013) SCR 55of 2012 (unnumbered), in a statement that such a review should only be allowed where, "there is a clear error which has a very high chance of success.""

6. I endorse these views. Mr Yama as the applicant must establish that there is a clear error which has a very high chance of success. Only such cases will go past the leave stage. Otherwise, they must stop at the leave stage.

Grounds for Judicial Review

7. Mr Yama raised eight grounds of review. Except for ground no. 7, it is common ground among the parties that ground no. 1 raises the issue of whether or not, notwithstanding Mr Yama's counsel failure to require the Returning Officer Mr Taravaru and other witnesses for the Electoral Commission to be cross-examined on their affidavits, the trial judge should have in the exercise of his discretion, called them to be cross-examined by counsel for Mr Yama.

8. Ground no. 2 to ground no.6 and ground no. 8 raise the issue of tampering of ballot-papers and circumstances that give rise to the tampering of ballot-papers. For ground no. 7, counsel for the Electoral Commission addressed it separately, the issue being, whether Mr Yama having not pleaded and sought an order for a further recount of votes, is entitled to an order for a further recount of votes.

Consideration of Grounds

9. It is common ground that at the hearing, Mr Yama led no direct evidence to establish his assertion that ballot-papers were tampered with by counting officials and as a result, the result was flawed. For example, there was no evidence that counting officials deliberately placed ballot-papers of other candidates in Mr Yagama's tray or box, especially at the 37th elimination thus inflating the number of ballot-papers for Mr Yagama and when added to the overall tally, increased the total number of votes for Mr Yagama. Similarly, there is no evidence establishing that ballot-papers were removed from Mr Yama's tray or box, thus reducing the number of ballot-papers and ultimately, his total votes.

10. On the other hand, the evidence was circumstantial. The uncontested evidence from Mr Yama and his witnesses was that first, on the morning of the final day of the recount, Saturday 10th August 2013, with the allocation of preferences of the 37th exclusion about to start, and after the ballot-boxes had been brought into the counting centre and with counting officials and police personnel in the counting centre, the scrutineers for the remaining candidates were locked out for a period of four hours. The lockout was not properly explained and the long period meant that there was ample time for the ballot-papers to be tampered with.

11. Secondly, on the morning of 10th August 2013, a number of ballot-paper-butts were found in an envelope lying on kunai grass in Madang town near the Electoral Commissions office. Thirdly, a large number of first-preference votes – 2,005 in total – were at the start of the recount discovered in a box marked for exhausted ballot-papers.

12. In relation to ground no. 1, Mr Yama's counsel's submission is that Mr Yama had filed and served notices to cross-examine witnesses for the Electoral Commission pursuant to s. 36 of the Evidence Act. While Mr Yama did not ask or bring to the attention of his Honour his intention to cross-examine the witnesses, his Honour had discretion to call them and should have called them so that counsel could cross-examine them in relation to the allegations of tampering of ballot-papers. If that was done, more information would have been elicited from the witnesses to establish that ballot-papers had been tampered with.

13. Counsel submitted that given that Mr Yama filed and served notices to cross-examine witnesses for the Electoral Commission, that his Honour had notice of Mr Yama's intention to cross-examine the witnesses, that Mr. Yama had not informed his Honour of his intention to cross-examine the witnesses and that his Honour still had the discretion to call the witnesses for cross-examination, his Honour fell into error. It is a glaring error which warrants a further and proper consideration of s. 35 and related provisions of the Evidence Act in relation to his Honour's exercise of discretion.

14. The respondents, in unison, submitted that the affidavits were tendered by consent and parties reserved the right to cross-examine the deponents of the affidavits. Mr Yama waived his right to cross-examine the witnesses when he did not alert or inform his Honour of his intention to cross-examine them. The error was on his part and not the Court. For this reasons, they submitted that this ground does not raise an important point of law such that it would require further consideration by the Court.

15. Under s. 34 of the Evidence Act, evidence in legal proceedings may be by affidavit, or by interrogatories or examination by an examiner, or orally. Under s. 35, where a party desires to use affidavit, he may not less than five clear days before the hearing give notice of his desire to rely on it. In this case, parties filed and served affidavits on each other. So, the trial was by affidavits and there is no dispute on this. Under s. 36, when a party to or a person interested in legal proceedings before a tribunal (Court) and has received an affidavit desires to cross-examine the deponent of the affidavit, he may serve on the deponent a notice requiring the production of the deponent for cross-examination at the hearing. This notice is commonly referred to these days as a "notice to cross-examine witnesses".

16. Mr Yama gave notice to the Electoral Commission to cross-examine its witnesses. But giving notice is one thing and bringing it to the attention of the Court is another. It is the latter that Mr Yama failed to do and I accept the Electoral Commission and Mr Yagama's submission that Mr Yama's failure to bring the notice to the attention of his Honour is an error on his part and not on the Court. If he considered that it was necessary to test the credibility of the witnesses to contradict the Electoral Commission's case that ballot-papers were not tampered with, his counsel ought to have informed his Honour of his intention to cross-examine the witnesses and based on the notice, the Electoral Commission would have obliged to produce them for cross-examination. It follows Mr Yama's submission that his Honour's failure to call the Electoral Commissions' witnesses for his counsel to cross-examine them raises an important point of law is without merit. It does not raise an important point of law that would require further consideration by the Court.

17. As to the other grounds, except for ground no. 7, Mr Yama's counsel's submission is that the ballot-papers were tampered with and as a result, the result was flawed. This is so because the result of the recount of Mr Yama's first preference votes was significantly less than the original count and he relied on the result of the original count at Walium to demonstrate that Mr Yama received 926 votes and Mr Yagama received 1,075 votes at the 37th elimination. In the recount at the 37th elimination, Mr Yama received 564 votes and Mr Yagama received 1,363 votes. The difference is a decrease of 362 votes for Mr Yama and an increase of 288 votes for Mr Yagama. His Honour made a grave error when he ignored such a deliberate irregularity and without further inquiry, declared Mr Yagama as duly elected member for Usino-Bundi Open electorate.

18. Counsel for Mr Yama further submitted that the evidence of substantial difference of increase and decrease of votes for Mr Yama and Mr Yagama at the 37th elimination was obvious and apparent such that it could not be attributed to human error but a deliberate error to starve him of votes and that his Honour overlooked it. In so doing, his Honour failed to enquire further and call witnesses to justify the substantial difference in the number of votes received by Mr Yama and Mr Yagama. If his Honour had, he had two options. He could have declared Mr Yama as the duly elected member or ordered a further recount. This is where his Honour erred in his exercise of discretion.

19. As for the Electoral Commission and Mr Yagama, they responded that these grounds challenge his Honour's assessment of evidence and findings of fact. Relying on the tests established by the Supreme Court cases (supra), they submitted that Mr Yama has not proven gross error of facts or that on the face of the findings of fact, they are so outrageous or absurd that injustice will occur and Court's intervention is warranted.

20. As noted, the evidence establishing the allegation of tampering of ballot-papers was circumstantial and uncontested. Conversely, in his affidavit which was tendered by consent, Mr Taravaru denied the allegation and explained that it is unfounded. His Honour weighed the two versions and preferred the version given by the Electoral Commission for three reasons:

20.1. The counting officials had a grievance with the Electoral Commission over their allowances. Mr Taravaru needed time to meet with them and sort out their grievances. It was an unexpected turn of events which he had to deal with as a matter of urgency.

20.2. The ballot-boxes that were taken into the counting centre were sealed with plastic seal tags, with serial numbers attached. The tags had been affixed the evening before (Friday 09th August 2013) in the presence of scrutineers. The plastic seal tags are designed in such a way that when they are broken or cut they cannot be used again. When counting eventually resumed at 1.30 pm on Saturday 10th August 2013 all the serial numbers of the plastic seal tags affixed to the five ballot-boxes and the exhausted box the previous day were read out to the scrutineers and the scrutineers confirmed those serial numbers. Three candidates were then eliminated: James Yapoi (exclusion No 37), Kansol Kaniku (exclusion 38) and Samson Kuli (exclusion No 39). The recount was concluded after exclusion No 39 when the first respondent reached the absolute majority. Mr Taravaru's evidence was not effectively challenged by Mr Yama. Mr Umbu, who appeared for the Electoral Commission, vividly and effectively demonstrated in the courtroom the effect of the evidence about the plastic seals not being able to be reused once broken.

20.3. It was physically impossible for the ballot-boxes to have been tampered with. There was simply no opportunity for this to have happened. Therefore the distribution of preferences arising from the 37th exclusion was not tainted and did not impair the integrity of the recount.

21. His Honour accepted the evidence of the Electoral Commission because he found it reliable and credible. In addition to that, although Mr Yama adduced evidence that a large number of first-preference votes – 2,005 in total – were at the start of recount discovered in a box marked for exhausted ballot-papers, his Honour was not satisfied that they affected the result of the recount. The reason was that a recount is conducted in a completely different way to an original count.

22. I consider that given that the evidence on the tampering of ballot-papers was circumstantial, the law on circumstantial evidence is that only one reasonable inference must be drawn from the whole circumstances of the case. Given the lock-out of candidates' scrutineers from the counting centre by the Returning Officer, the discovery of butts of ballot-papers found in an envelope lying on kunai grass in Madang town near the Electoral Commission office, the Returning Officer's explanation for the lock-out of candidates' scrutineers at the counting centre, the discovery of butts of ballot-papers and not the actual ballot-papers near the Electoral Commission office and that ballot-boxes were securely locked, I am not satisfied that the inference that ballot-papers were tampered with is the only reasonable inference or conclusion open to his Honour to draw in the circumstances of the case.

23. The fact is, there was an explanation for the lock-out of the candidates' scrutineers. Then, there was also a recounting of all the votes and it was conducted in a completely different way to the original count. That meant that votes for each candidate in each elimination round would differ from the original count and ultimately affected the final result. All these explain the new total votes received by the candidates including Mr Yama and Mr Yagama. His Honour was left with this version and preferred it and I am unable to see anything wrong with his Honour preferring this version.

24. Thus, after a strict scrutiny of the application including a consideration of his Honour's reasons, three of which have been highlighted above, but without descending into the merits of the substantive application, I am not persuaded that Mr Yama has established a case of gross error in his Honour's assessment of the evidence and subsequently, his findings of fact in relation to the tampering of ballot-papers. Similarly, I am not satisfied that the finding that the integrity of the recount remained intact is so outrageous or absurd that it ought to be reviewed, otherwise injustice would occur.

25. Finally, as ground no 7 raises the issue of whether Mr Yama is entitled to a further recount, if so, whether he has established a case for a recount, and given that I have reached a conclusion that he has failed to establish any error in the trial judge's exercise of discretion in relation to calling of witnesses for cross-examination and assessment of evidence on tampering of ballot-papers, it renders a consideration of this ground unnecessary.

Conclusion

26. For the foregoing reasons, I am not satisfied that the grounds raised by Mr Yama merit a review and refuse leave with costs to the respondents to be taxed if not agreed.

Ruling and orders accordingly.
________________________________________________________________
Elisha Lawyers: Lawyers for Applicant
Harvey Nii Lawyers: Lawyers for First & Second Respondents
Kuman Lawyers: Lawyers for Third Respondent