Charles Maino v Moi Avei and the Electoral Commission [1998] PNGLR 178

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ
• Judgment Date: 06 May 1998
• Court: National Court
• Citation: [1998] PNGLR 178
• Docket Number: In the Matter of the Organic Law on National and Local–level Government Elections and In the Matter of A Disputed Return in the Election for the Kairuku–Hiri Open Electorate in the Central Province
• Year: 1998
• Judgement Number: N1706

National Court: Amet CJ

Judgment Delivered: 6 May 1998

N1706

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 64 OF 1997

IN THE MATTER OF:

ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS

AND:

IN THE MATTER OF:

A DISPUTED RETURN IN THE ELECTION FOR THE KAIRUKU-HIRI OPEN ELECTORATE IN THE CENTRAL PROVINCE

BETWEEN:

CHARLES MAINO

Petitioner

AND:

MOI AVEI

First Respondent

AND:

THE ELECTORAL COMMISSION

Second Respondent

1998 : 10-13, 17-26 March

& 6 May

Waigani : Amet CJ

Steven Kassman, for the Petitioner.

Davis Steven, for the 1st Respondent.

Philip Young, for the 2nd Respondent.

6 May, 1998

AMET CJ: This is an electoral petition instituted pursuant to Section 206 of the Organic Law on National and Local Level Government Elections (The Organic Law), by Charles Maino, a candidate in the Kairuku-Hiri Open Electorate in the 1997 National General Election, disputing the validity of the election and return of Moi Avei, the First Respondent, on the following remaining grounds:

8. IRREGULARITIES AT THE POLLING:

8.1 The Second Respondent committed irregularities during the polling in that the Polling Team One which was scheduled to go to VELEI village on Monday 16th June 1997, failed to go to that polling village as scheduled or any other days thereafter thereby denied the rights of the eligible voters from that village from voting in the 1997 elections.

8.2 The Second Respondent committed irregularities in respect to polling in Devadeva 1,2 and 3 by Team Eight as scheduled, in that –

a) by failing to conduct polling in Devadeva 1,2 and 3 on Friday 27th June 1997 as scheduled or immediately soon thereafter, the rights of the eligible voters of about 270 had been denied from voting in the 1997 elections;

b) it was wrong and irregular to suspend counting for one and half days after four (4) days of counting and before the final day of counting when about 6 to 7 boxes were remaining to be counted, to conduct polling in Devadeva on 2nd July 1997 without any prior sufficient notice given to 270 eligible voters in Devadeva; and

c) when counting resumed on Thursday afternoon (3rd July 1997) for final counting, the box for Devadeva showed or contained only nineteen (19) ballot papers which means that only nineteen (19) people voted instead of 270 eligible voters as shown in the Rolls, and eighteen (18) of those nineteen (19) votes were for the Petitioner;

therefore the Petitioner claims that the failure of the Second Respondent to conduct a proper polling in Devadeva 1,2 and 3, denied him a good number of votes out of 270 eligible voters.

8.3 The Second Respondent committed irregularities during the polling in that the Presiding Officer or the Assistant Presiding Officer of Team One failed to sign at the back of some of the ballot papers and as a result about fourteen (14) votes for the Petitioner were declared informal at the counting from Counts one (1) to seven (7).

9. IRREGULARITIES AND DISCREPANCIES AT THE

COUNTING:

9.1 The Second Respondent also committed irregularities specified hereunder during the counting of the KAIRUKU-HIRI OPEN ELECTORATE votes at the Gordons Police Barracks and that the counting of the votes was done without diligence and due care thereby allowing the votes of the First Respondent not subjected to proper scrutiny, in that:

a) There were no security checks at the entrance to the counting room; that is, the Counting Officials and Scrutineers were not checked at the door of the counting room whenever they walked in or out of the room.

b) There were also restrictions on the carrying and use of the pens, biros and pencils made to the Counting Officials who were engaged to distribute and count the ballot papers for the KAIRUKU-HIRI OPEN ELECTORATE.

c) The distribution of ballot papers was done quickly, without diligence and due care since –

i) no proper checking and sorting out of ballot papers were done at the sorting table, that is, when a ballot box was emptied on the sorting table the distributing officials separated the “Open “ ballot papers from those of the “Regional” then began distributing the ballot papers as they liked without first checking and sorting out the ballot papers to the respective candidates at the sorting table;

ii) there was no standard procedure followed – some officials collected whatever ballot papers they could and went around distributing them to the respective candidates’ trays which were placed in numerical order on another table where other officials and Scrutineers were waiting next to and behind each candidate’s tray, while other officials collected ballot papers belonging to a particular candidate only and brought them in bundles or piles and placed them in that candidate’s tray; and

iii) the distribution of the ballot papers was done in such a speed and manner that left no time for the Scrutineers to clearly and properly check the front and the back of each ballot paper or vote.

d) No proper scrutiny of the ballot papers was made of each vote during the counting of the votes due to the fact that-

i) the Returning Officer or his representative repeatedly told the Counting Officials to speed up the distribution and counting of votes; therefore both the distribution and the counting of votes were done quickly;

ii) the Returning Officer or his representative also from time to time told the Scrutineers to remain close to their candidates’ trays only, not to move around and touch the ballot papers and gave them no opportunity to properly check the ballot papers; and

iii) the counting of the votes was also done in such a speed and manner that left no time to both the Counting Officials and Scrutineers to clearly and properly check the front and the back of each vote or ballot paper.

9.2 The Second Respondent by failing to conduct the sorting out and distribution of the ballot papers in the manner and the speed necessary to allow proper scrutiny of the votes at the counting made it possible for the First Respondent to be returned as elected. Such failures and discrepancies occurring during the counting may be many but those that were identified are provided hereunder in order to confirm that such discrepancies did occur throughout the counting therefore the Petitioner seeks an order for recount to enable proper scrutiny of the votes be made

a) Saturday night.

At the counting on Saturday night (28th June 1997) the Counting Official MARIETTA YAPENARE admits that she was assigned to count the ballot papers from the Petitioner’s tray and in doing so she bundled the ballot papers in 20s instead of in 10s like other Counting officials; and during Monday night (30th June 1997) counting when she again counted the ballot papers from the Petitioner’s tray, she then bundled them in 10s like other Counting Officials – this is irregular and is likely to lead to miscounting.

b) Saturday night.

Again on Saturday night’s counting the same official MARIETTA YAPENARE while counting the ballot papers from the Petitioner’s tray identified one ballot paper which had two Xs so she voluntarily handed it to another Official to put it in the “informal” tray.

c) Monday night.

During the counting on Monday night, a Counting Official GOMEA IUBU who was assigned to count ballot papers from a candidate ENO DAERA’s tray identified two ballot papers that were “informal” and had them put in the “informal” tray.

d) Monday night.

In that counting, another Counting Official ALOYSIUS KORUA who was responsible for the First Respondent’s tray identified three (3) ballot papers for the First Respondent’s tray identified three on three separate counts. On each of those times, he took the ballot paper and showed it to KEA RAVU a Counting Official who was assigned to another candidate’s tray next to the First Respondent’s tray. KEA RAVU who was also helping him to count and bundle the ballot papers from the First Respondent’s tray, told him not to waste time and worry about that but to bundle them in tens (10s), mark them and put them away as if they were for the First Respondents’ votes. ALOYSIUS KORUA did not like that therefore told the Returning officer about each of those ballot papers. Returning Officer told him to put it (on each occasion) in the Petitioner’s tray. However, on each of those cases, the Returning Officer did not remind the Counting Officials to check the ballot papers properly before distributing and counting them instead he told them to speed up the counting of votes since they were running behind the time.

e) Monday night.

Again, the same Counting Official (ALOYSISUS KORUA) while counting the votes from the First Respondent’s tray identified three (3) ballot papers for another candidate ENO DAERA and once again told KEA RAVU but he reacted in the same way and told ALOYSIUS KORUA not to waste time but to bundle them in tens (10s) and marked for the First Respondent. ALOYSIUS KORUA was upset and told KEA RAVU to be fair and honest in the counting of votes.

There were other Counting Officials who noticed what was going on between ALOYSIUS KORUA and KEA RAVU.

ALOYSIUS KORUA then...