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
• Citation: (2000) SC633
• Date: 09 May 2000
• Court: National Court
• Year: 2000

National Court: Los J, Sheehan J, Injia J

Judgment Delivered: 9 May 2000

1 Judicial Review—Election petition—Whether "errors or omissions" committed by electoral officers "did affect the result of the election"—irregularities systematically perpetrated by electoral officers so that the integrity of entire ballot papers counted at the recount were seriously called into question—where integrity of whole or some critical phase of electoral process in an election is in question issue more appropriately determined without reference to number of votes affected

2 Costs—election petition—Organic Law on National and Local–level Government Elections s212(1)(j) s223—discretion to award costs "against an unsuccessful party to a petition"

3 Louis Ambane v Thomas Tumun Sumuno (1998) SC559, Dick Mune v Anderson Agiru (1998) SC590, Moi Avei v Charles Maino [2000] PNGLR 157, Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 and Fraser v ANGCO Pty Ltd [1977] PNGLR 134 and R v Hillingdon London BC ex parte Pulhofer [1986] AC 484 referred to

4 Constitution, s155(2)(b), Organic Law on National and Local–level Government Elections, s212(1)(j), s212(3), s213(1)(d), s217, 218(1), s223, National Court Rules, O22 r11 referred to

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Los J and Injia J:

These are two applications for judicial review made pursuant to s155(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 SCR 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 No 13 of 1999, the Electoral Commission is seeking a review of the National Court decision to award costs to Sir Charles as against the Electoral Commission on 28 December 1998 in relation to the whole proceedings in EP No 64 of 1997. We wish to first deal with SCR No 8 of 1999.

(a) SCR No 8 of 1999

The short facts of SCR No 8 of 1999 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 of 1997 filed in the National Court at Waigani under provisions of the Organic Law on National and Local–level Government Elections 1996. 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 only against the Electoral Commission 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 s212(3) of the Organic Law on National and Local–level Government Elections, we consider just and sufficient that we should exercise the Court's power under this subsection and in particular pursuant to s213(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 recount. 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 EC507, EC510, and EC602 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 Assistant 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, Form EC510 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 those 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 crosscheck 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 recount 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 July 1997 and the recount on 9 November 1998, 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 recount. On 8 May 1998 the container was transported to Port Moresby for the recount. In Port Moresby, between 8 May 1998 and 15 May 1998, 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 and 12 November 1998, the recount was conducted. Before these results were presented to the Court for a final determination, between 26 November and 11 December 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 recount 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 this 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 November 1998, affidavit of Police Constable Eno Daera sworn on 26 November 1998, and affidavit of Sir...