In The Matter of the Organic Law on National and Local-Level Government Elections and a disputed Return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013) N5354

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 05 September 2013
• Court: National Court
• Citation: (2013) N5354
• Docket Number: EP NO 52 0F 2012
• Year: 2013
• Judgement Number: N5354

Full Title: EP NO 52 0F 2012; In The Matter of the Organic Law on National and Local-Level Government Elections and a disputed Return for the Usino-Bundi Electorate in the 2012 General Election; Peter Charles Yama v Anton Yagama and Steven Biko, Returning Officer and Andrew Trawen, Electoral Commissioner and Electoral Commission of Papua New Guinea (2013) N5354

National Court: Cannings J

Judgment Delivered: 5 September 2013

N5354

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA

Petitioner

V

ANTON YAGAMA

First Respondent

STEVEN BIKO, RETURNING OFFICER

Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER

Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Fourth Respondent

Madang: Cannings J

2013: 3, 5 September

ELECTIONS – recount of votes – whether National Court obliged to declare result of election in accordance with Court-ordered recount without further inquiry into whether the recount was affected by errors or omissions – whether a party has right to challenge result of recount – whether errors were made in conduct of recount – whether errors made warranted disturbing the result of the recount – circumstantial evidence.

After hearing an election petition the National Court ordered that there be a recount of ballot papers for an electorate and that the result of the recount be presented to it. A recount was conducted. The result showed that the first respondent, who was the successful candidate in the original count, again had the highest number of votes. The petitioner filed a notice of motion, seeking orders that the final result of the recount be discarded and that he be declared duly elected. He argued that the distribution of preferences at the 37th exclusion was tainted in that the ballot papers had been tampered with and that this corrupted the result in favour of the first respondent as evidenced by (a) a comparison of distribution of preferences at the original count with distribution of preferences at the recount, which revealed a significant reduction in the number of votes allocated to him and a significant increase in the number of votes allocated to the first respondent; (b) the ballot boxes being left with counting officials and police personnel in the counting centre for a period of four hours without the presence of scrutineers; (c) a large number of ballot paper butts being found lying on the ground in a public place by members of the public during the period that the ballot boxes were left without scrutiny and (d) a large number of first-preference votes – 2,005 in total – being at the start of the recount discovered in a box marked for exhausted ballot papers. The first respondent filed a competing notice of motion seeking orders that the Court accept the result of the recount and that he be declared duly elected. He argued (a) that the Court had no power to reject the result of the recount and the petitioner could not challenge the result as he did not apply for leave to review the order of the National Court that there be a recount; (b) the petitioner’s motion was an abuse of process and (c) if the National Court had power to reject the result it should still accept the result as no errors had been proven to have occurred in the conduct of the recount that warrant a different result. The two motions were heard together and gave rise to these issues: (1) was the Court obliged to accept the result of the recount? (2) was there an abuse of process by the petitioner? (3) who bears the onus of proof? (4) has the petitioner proved good grounds to reject the result? (5) has the first respondent proven good grounds for acceptance of the result? (6) what orders should the Court make?

Held:

(1) The Court is not bound to accept without further inquiry the result of a recount. Any party to a petition may move the Court for acceptance or rejection of the result of a recount and the Court may conduct a hearing and hear evidence to determine whether the result of the recount should be accepted or rejected.

(2) There was no abuse of process by the petitioner. The fact that he sought an order that was unusual and novel in nature and probably unprecedented did not mean that the means by which he sought that relief was an abuse of process.

(3) In accordance with the legal principle that ‘he who asserts must prove’, the party that moves the Court for rejection of the result bears the onus of proving good grounds for rejection and the party that moves the Court for acceptance of the result bears the onus of proving good grounds for acceptance.

(4) The petitioner failed to prove good grounds for rejection of the result, as (a) the fact that there was a significant difference in the distribution of preferences at the 37th exclusion was inconsequential as the distribution at the original count was inherently unreliable and was therefore not a proper basis for comparison; (b) the returning officer gave a satisfactory explanation for the ballot boxes being left without the presence of scrutineers and it was impossible for the ballot boxes to have been tampered with, thus the distribution of preferences was not tainted and did not impair the integrity of the recount; (c) evidence of ballot paper butts being found in a public place did not result in the conclusion that ballot boxes or papers had been tampered with and (d) there was nothing irregular or untoward in finding 2005 first-preference votes for the petitioner in a box in which there were exhausted ballot papers.

(5) The respondents established good grounds for acceptance of the result, in particular by tendering an affidavit of the returning officer which provided a detailed account of the conduct of the recount and a satisfactory explanation of the concerns of the parties as to the integrity of the recount.

(6) All relief sought by the petitioner was refused. The primary relief sought by the first respondent was granted and accordingly it was declared that the result of the recount was accepted and subject to any other order of the Court that the first respondent was the duly elected member for the electorate.

Cases cited

The following cases are cited in the judgment:

Galem Falide v Registrar of Titles (2012) N4775

Kuli v Apamia (2013) PGNC 104, (2013) N5275

SCR Nos 4 & 5 of 2009 Re Trawen v Wingti [2009] PGSC 54, (2009) SC1003

Shaw v Commonwealth of Australia [1963] PNGLR 119

Supreme Court Reference No 4 of 1980 [1982] PNGLR 65

Wingti v Rawali, Electoral Commission and Olga (2008) N3286

Wingti v Rawali, Electoral Commission and Olga (2009) N3569

Wingti v Rawali, Electoral Commission and Olga (2010) N3982

Yama v Yagama (2013) N5222

NOTICES OF MOTION

This was a determination of two motions concerning the result of a recount of votes in an election.

Counsel

N Kiuk, for the petitioner

T Boboro, for the first respondent

J S Umbu, for the second, third & fourth respondents

5th September, 2013

1. CANNINGS J: After hearing an election petition concerning the result of the election for the seat of Usino-Bundi Open in the 2012 general election the National Court ordered that there be a recount of ballot papers for the electorate and that the result of the recount be presented to it. The recount commenced on 25 July 2013 and concluded on 10 August 2013. The result was presented to the Court on 15 August 2013, showing:

· the first respondent Anton Yagama had the highest number of votes: 7,038 votes;

· the runner-up, the petitioner Peter Charles Yama, had 6,408 votes;

· the difference was 630 votes;

· the absolute majority was 6,724.

2. This is the Court’s ruling on two motions that have been filed concerning the result of the recount.

THE PETITIONER’S MOTION

3. The petitioner filed a notice of motion, seeking orders that the final result of the recount be discarded and that he be declared duly elected. Specifically the orders sought are:

1 The final results of the Court ordered recount announced by the returning officer on 10 August 2013 relating to the placing of the first respondent and the petitioner shall be determined whilst considering the Walium count [ie the original count, conducted at Walium].

2 The final results of the Court ordered recount announced by the returning officer on 10 August 2013 and the results of the recount emanating from elimination 37 be discarded and consideration be given to the record of the results on the 37th elimination in the Walium count.

3 An order declaring the petitioner as the duly elected member for Usino-Bundi electorate in Madang Province.

4. He argued that the distribution of preferences at the 37th exclusion was tainted in that the ballot papers had been tampered with and that this...