Review Pursuant to Constitution Section 155(2)(b) of a Judicial Act of The National Court; Re An Election Petition for the Tari–Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Batari J, Cannings J
• Judgment Date: 03 March 2006
• Docket Number: SCR No 55 of 2004
• Court: Supreme Court
• Judgement Number: SC827

Full Title: SCR No 55 of 2004; Review Pursuant to Constitution Section 155(2)(b) of a Judicial Act of The National Court; Re An Election Petition for the Tari–Pori Open Electorate; James Marabe v Tom Tomiape and Electoral Commission (2006) SC827

Supreme Court: Hinchliffe J, Batari J, Cannings J

Judgment Delivered: 3 March 2006

SC827

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO 55 0F 2004

REVIEW PURSUANT TO CONSTITUTION SECTION 155(2)(b)

OF A JUDICIAL ACT OF THE NATIONAL COURT

RE AN ELECTION PETITION

FOR THE TARI-PORI OPEN ELECTORATE

JAMES MARABE

Applicant

TOM TOMIAPE

First Respondent

ELECTORAL COMMISSION

Second Respondent

WAIGANI : HINCHLIFFE J, BATARI J, CANNINGS J

2 SEPTEMBER 2005, 3 MARCH 2006

REVIEW

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.

Held:

(1) When the votes in a ballot-box are disputed it is not sufficient for a petitioner to prove that an error has been made by a presiding officer or returning officer. The petitioner must prove that the integrity of the ballot-box has been substantially and adversely affected having regard to all relevant circumstances.

(2) On the hearing of the petition the decision on which was reviewed in the present case, it was not shown that the petition Judge had applied the incorrect test or made any error of law regarding the integrity of the ballot-box or any other ground of review.

(3) The review was accordingly dismissed and the decision of the National Court confirmed.

Cases cited

The following cases are cited in the judgment:

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

Abbreviations

The following abbreviations appear in the judgment:

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

REVIEW

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 1st respondent

A Kongri for the 2nd respondent

BY THE COURT:

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 PARTIES

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.

BACKGROUND

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.

SUPREME COURT’S JURISDICTION

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:

(1) there are clear legal grounds meriting a review; and

(2) there are cogent and convincing reasons or exceptional circumstances; and

(3) it is in the interest of justice that the review be granted.

(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,...