SCR No 8 of 999 and SCR No 13 of 1999; In the matter of Review pursuant to S155(2)(b) of the Constitution; And 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; Charles Maino v Moi Avei and Electoral Commission of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J:
• Judgment Date: 09 May 2000
• Citation: (2000) SC633
• Court: National Court
• Year: 2000
• Judgement Number: SC633

National Court: Los J, Sheehan J, Injia J

Judgment Delivered: 9 May 2000

SC633

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 8 OF 1999 & SCR NO. 13 OF 1999

In the matter of:

Review pursuant to Section 155(2)(b) of the Constitution

And in the matter of:

Organic Law on National & 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

-Appellant-

And:

Moi Avei

-First Respondent-

Electoral Commission of Papua New Guinea

-Second Respondent-

Waigani: Los, Sheehan & Injia, JJ.

1999: October 26

2000: May 5, 9

S. Kassman for Sir Charles Maino

G. Sheppard for Moi Avei

J. Nonggorr for the Electoral Commission

9 May 2000

LOS & INJIA, JJ.: These are two applications for judicial review made pursuant to S.155(2)(b) of the Constitution and they arise from the decision of the National Court in election petition EP No. 64 of 1997. In the first review, in SC Rev. No. 8 of 1999, the applicant (Sir Charles) is seeking a review of the National Court decision made on 28 December 1998 where in the Court dismissed his election petition. This decision was made following a recount of votes conducted on 9 November 1998 pursuant to an earlier Court Order made by the same Court on 6 May 1998. The Court proceedings which resulted in the order of 6 May 1998 are not the subject of this review. In the second review in SCR 13 of 1999, the Electoral Commission ("the Commission") is seeking a review of the National Court decision to award costs to Sir Charles as against the Commission on 28 December 1998 in relation to the whole proceedings in EP No. 64/97. We wish to first deal with SCR 8/99.

(a) SCR 8/99

The short facts of SCR 8/99 are that, in the 1997 general elections, on 3 July 1997, the result of the election for the Kairuku-Hiri Open electorate in the National Parliament was declared. The First Respondent (Mr. Avei) won that election with 5,112 votes and Sir Charles was the runner up with 5,048 votes, a difference of 64 votes. Sir Charles challenged the result of the election in election petition No. EP 64/97 filed in the National Court at Waigani under provisions of the Organic Law on National and Local Level Government Elections 1996 (hereinafter abbreviated OLNE). The petition was tried by the National Court in 1998 between March 10 — 13 and 17 — 26. The trial was conducted on allegations of illegal practices, irregularities, errors and omissions levelled against the Commission only which were set out in clauses 8 — 10.1 of the said petition. On 6 may 1998, the Court handed down its decision. The judge found certain "circumstances of irregularities, some of which amounted to punishable offences and illegal practices are such serious circumstances of irregularities, acts and omissions by electoral officials as amounting to such grounds which in our discretion pursuant to Section 212(3), we consider just and sufficient that we should exercise the Court's power under this subsection and in particular pursuant to section 213(1)(d) to order a recount of all ballot papers in the election in this electorate". The result of the recount were then to be submitted to the Court for a final judgment on the whole petition.

It is important to summarise the findings of illegal practices, etc. which warranted an order for a re-count. These are set out in the court's written judgment as follows:-

1. Clause 8.3 of the Petition: Presiding Officer failed to initial the back of some 14 ballot papers in Counts 1 — 7 of Polling Team No. 1 and rendered informal. These 14 votes were genuine votes belonging to the petitioner.

2. Ground 9.2 of the Petition: Counting process was quite fast, not allowing adequate time for scrutiny of ballot papers resulting in evidence of a number of instances of informal ballot papers being placed in some candidates' trays or in the wrong trays.

3. Ground 10 of the Petition: Electoral officials tempered with electoral records both during the polling and counting. These practices were "flagrantly unlawful and irregular".

I quote the Court's judgment in respect to Ground 10 in full.

"This ground also alleges discrepancies both at the polling and more particularly during the counting. The Petitioner produced tables and schedules of voting tallies taken by his own scrutineers and election team to demonstrate differences and discrepancies in the number of ballot papers used at the polling and those that were counted at the counting of votes. Also after examination of the official returns; Forms EC 507, EC 510, and EC 602 that were tendered by the Second Respondent's officers, it was submitted they demonstrated substantial discrepancies in the figures. Evidence was adduced from the Electoral Officials who gave evidence that some of the forms had been corrected by correction fluid to change the original figures and also some of the votes marked in the sex tally sheets had been erased.

"In particular the Assistance Presiding Officer of Team 2, George Keru gave frank evidence of a systematic exercise of reconciling figures in the sex tally sheets and the Presiding Officer's Return of Voters and Ballot Papers, EC Form 510 after the polling each day. This was an honest explanation of what appeared to the Polling Officials to be an important matter, the need to ensure that the ballot papers used and that remaining at the end of each day's polling place. Unfortunately, with good intentions though this practice may have been, it was flagrantly unlawful and irregular. It is fundamentally unlawful to tamper with what was recorded as being the number of votes cast at a particular polling place.

"Also there was physical evidence and oral evidence from other electoral officials attempting to reconcile and tally up the different figures on the face of the different electoral forms. There was evidence of presiding officer Kevin Unobo who attended at the Electoral Commission Office in Boroko with the permission of a senior officer Mr. Veri to obtain access to polling documents for Team 5 to cross-check figures in those returns after the Petition had been filed.

This sufficiently demonstrates serious and substantial irregularities by Electoral Officials in the conduct of the Elections."

On 9 November 1998, the re-count was held in Port Moresby under the supervision of the Registrar of the National Court. In the intervening period between the original count on 3/7/97 and the re-count on 9/11/98, the ballot boxes containing the ballot papers were stored in a locked container kept at the Bereina Police Station. On 6 May, 1998 the National Court at Waigani ordered a re-count. On 8 May, 1998 the container was transported to Port Moresby for the recount. In Port Moresby, between 8/5/98 — 15/5/98, the container was kept at the Central Provincial Police Headquarters in Port Moresby before it was transported to the National Court at Waigani. Between 9 — 12 November 1998, the re-count was conducted. Before these results were presented to the Court for a final determination, between 2 November 26 and December 11, 1998 Sir Charles filed four affidavits which suggested that the container and the ballot boxes inside the container and ballot papers therein had been tampered with by someone, and that the result of the re-count was tainted by further illegal practices, irregularities or errors and omissions perpetrated by electoral officials, the principal suspect being the Returning Officer, Mr. Chris Oasora. It is the manner in which the Count treated these evidence, which is the main ground in this review.

The four affidavits filed by Sir Charles were the affidavits of Central Provincial Police Commander, Acting Chief Inspector Fred Yakasa sworn on 25/11/98, affidavit of Police Constable Eno Daera sworn on 26/11/98, and affidavit of Sir Charles sworn on 11/2/98. The sum effect of the evidence deposed to in the affidavits of Messrs. Yakasa, Aikelave and Daera showed that Mr. Yakasa took up his appointment as the new Central Provincial Police Commander at Bereina on 23/12/97. At the police station was kept the container containing the completed ballot boxes for the Kairuku Hiri Open electorate. It was never explained to Insp. Yakasa by his predecessor when the former assumed his responsibilities that the container contained the said ballot boxes. Insp. Yakasa was under the impression that it was used to store relief supplies for Bereina and that it so contained such relief supplies. The keys to the container were supposed to be with Bereina police at that time. On 7/5/98, the day following the Court Order for a re-count, Insp. Yakasa received a note that the District Administrator and Returning Officer Mr. Chris Oasora wanted the keys to the container. Thinking the District Administrator wanted the keys to get relief supplies, Insp. Yakasa arranged for the keys to be brought to him by Constable Aikelave. But keys were then not kept at the police station. They were with the Provincial...