In The Matter of the Organic Law on National and Local-Level Government Elections and A Petition Disputing the Validity of the Election for the Seat of Western Highlands Provincial in the 2007 General Election; Paias Wingti v Kala Rawali, Provincial Returning Officer Electoral Commission of Papua New Guinea and Tom Olga (2006) N3286

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 March 2008
• Court: National Court
• Citation: (2008) N3286
• Docket Number: EP NO 55 0F 2007
• Year: 2008
• Judgement Number: N3286

Full Title: EP NO 55 0F 2007; In The Matter of the Organic Law on National and Local-Level Government Elections and A Petition Disputing the Validity of the Election for the Seat of Western Highlands Provincial in the 2007 General Election; Paias Wingti v Kala Rawali, Provincial Returning Officer Electoral Commission of Papua New Guinea and Tom Olga (2006) N3286

National Court: Cannings J

Judgment Delivered: 14 March 2008

N3286

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF

WESTERN HIGHLANDS PROVINCIAL

IN THE 2007 GENERAL ELECTION

PAIAS WINGTI

Petitioner

V

KALA RAWALI, PROVINCIAL RETURNING OFFICER

First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

TOM OLGA

Third Respondent

Mt Hagen: Cannings J

2008: 24, 25, 28, 29, 30, 31 January,

1 February,

3, 14 March

JUDGMENT

ELECTIONS – petitions – decision of returning officer to refuse to admit ballot boxes to scrutiny – Organic Law on National and Local-level Government Elections, Section 153A – Electoral Law (National Elections) Regulation 2007, Section 90 – whether a Provincial returning officer can rely on the decision of an Open returning officer – whether a decision to refuse to admit ballot boxes to scrutiny must be documented – whether the returning officer is obliged to give reasons for a decision.

ELECTIONS – petition – whether sufficient evidence of tampering with ballot papers at or in the vicinity of the counting centre – whether discrepancies existed in tally sheets – whether discrepancies were material – circumstances in which it is proper for the court to order a recount of votes.

ELECTIONS – petitions – whether errors or omissions by an electoral officer revealed in the hearing of a petition that were not alleged in the grounds of the petition can be taken into account in deciding whether to exercise the National Court’s powers under Organic Law, Section 212.

An unsuccessful candidate challenged the result of an election to the National Parliament through an election petition, relying on two grounds: errors and omissions by electoral officials resulting in the failure to count five ballot boxes containing about 3,181 votes (ground 1) and errors or omissions at the counting centre (ground 2). As to ground 1, the petitioner alleged that the returning officer failed to properly exercise his discretion to reject the ballot boxes, failed to follow proper procedures and rejected the ballot boxes without good reason, contrary to the Organic Law, Section 153A, which states, amongst other things:

… a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot papers where he is of the opinion that:—

(a) the ballot papers in it were not lawfully casted [sic]; or

(b) the ballot box was tampered with and the integrity of the ballot-papers in it were compromised [sic].

As to ground 2, the petitioner alleged that illegal or improper practices and/or errors or omissions were committed at or around the counting centre, in that: counting officials were intimidated, there was inadequate control and security of ballot papers, ballot papers were tampered with, there were material discrepancies in the tally sheets and three disputed ballot boxes were not counted until after the distribution of preferences, creating reasonable doubt over the reliability of the result declared by the returning officer.

Held:

(1) If a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot box to scrutiny.

(2) The returning officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of Section 153A and the reasons for forming that opinion.

(3) The returning officer is responsible for conducting the scrutiny (ie counting of votes) at a counting centre and must maintain peace and good order in the counting centre and ensure adequate control and security of the ballot papers so as to preserve the integrity of the scrutiny and produce a reliable result.

(4) A returning officer has a duty to minimise discrepancies in tallies for candidates and to remove reasonable grounds for believing that the result is unreliable.

(5) In deciding whether to order a re-count of all ballot papers in an electorate the National Court may consider all the circumstances of the case including errors or omissions by electoral officials that were not expressly alleged in a petition, provided that their revelation was incidental to a determination of the express grounds of the petition, that the respondents have had the opportunity to be heard on those issues and that to decide the petition on those issues would not be otherwise contrary to the principles of natural justice.

(6) In the present case, re ground 1: the Provincial returning officer erred by failing to exercise the discretion conferred on him by the Organic Law, instead abdicating responsibility to the Open returning officers, and failing to document the decisions made under Section 153A and provide reasons for his decisions. Further, there was insufficient evidence to conclude that the five contentious ballot boxes should be rejected. Ground 1 was accordingly upheld.

(7) All of the issues the petitioner wanted to raise under the rubric of ground 2 were properly before the court, as they were either expressly set out in the petition or their revelation was incidental to a determination of the express grounds of the petition, and there was no breach of natural justice in determining them.

(8) Re ground 2, the petitioner failed to prove that counting officials were intimidated, but proved: that there was inadequate control and security of ballot papers; that there were reasonable grounds for suspecting ballot papers were tampered with; that there were material discrepancies in the tally sheets; and that there was a material irregularity in the timing of the counting of three disputed ballot boxes; thereby creating reasonable doubt over the reliability of the result declared by the returning officer.

(9) Given the proven errors and reasonable doubt about the reliability of the result, this is an appropriate case in which the court should order a re-count.

(10) An order for a recount was made, including an order that the ballot papers in the five contentious ballot boxes be included in the recount.

Cases cited:

Ambane v Electoral Commission and Tumun (1998) SC565

Application by Ben Semri (2003) SC723

Assik Tommy Tomscoll v Ben Semri (2003) N2349

Delba Biri v Bill Ninkama [1982] PNGLR 342

Jim Nomane v David Anggo and Others (2005) N28

Kakale v Pundari [1993] PNGLR 454

Kamma v Itanu, Electoral Commission and Laimo (2008) N3246

Maino v Avei [1998] PNGLR 178

Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797

Niggints v Tokam [1993] PNGLR 66

Ombudsman Commission v Peter Yama (2004) SC747

Paias Wingti v Kala Rawali, The Electoral Commission and Tom Olga, EP 55 of 2007, 23.01.08

Paua v Nagle [1992] PNGLR 563

Peter Peipul v Pila Niningi (1998) SC580

Reipa v Electoral Commission and Bao (1999) SC606

Abbreviations

The following abbreviations appear in the judgment:

aka – also known as

ARO – assistant returning officer

CJ – Chief Justice

DCJ – Deputy Chief Justice

EP – election petition

IT – information technology

J – Justice

LLG – Local Level Government

LPV – limited preferential voting

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

PRO – Provincial Returning Officer

RO – returning officer

SC – Supreme Court judgment

v – versus

WH – Western Highlands

WHP – Western Highlands Province

Glossary of names

The following people and places are referred to in the judgment:

People

Andrew Trawen – Electoral Commissioner

Ben Mark – ARO, Dei Open – petitioner’s witness No 1

Boki Raga – Director Policy, Electoral Commission – respondents’ witness No 3

Casper Laka – WH Provincial candidate

David Kolima – presiding officer, Keltiga, team 30

James Meteng – polling official, Mala 2, team 25

John Nonggorr – principal of Nonggorr Lawyers, adviser to Electoral Commission

Kala Rawali – Provincial returning officer, 1st respondent – respondents’ witness No 4

Luke Ruk – village leader, Mala

Melchior Pep – Dei Open candidate

Michael Wakene – counting official, WH Provincial – petitioner’s witness No 5

Michael Wandil – WH Provincial administrator

Paias Wingti – WH Provincial candidate, runner-up, petitioner

Paul Goimba – returning officer, Hagen Open – respondents’ witness No 2

Philip Puk – polling official, Mala 2, team 26

Puri Ruing – member for Dei Open

Raphael Agua – presiding officer, Keltiga and Korkum – petitioner’s witness No 2

Raphael Angra – aka Raphael Agua

Ray William – lawyer with Nonggorr Lawyers, adviser to Electoral Commission

Robert Enga – candidate for WH Provincial, 1st eliminated

Rogana Mala – Systems Analyst, Electoral Commission – respondents’ witness No 5

Rolgka – tribe in Dei district

Roslyn David – counting official, WH Provincial

Roy Pena Roltinga – Dei Open candidate, runner-up

Sanege Wapra – aka Wama Wapra

Steven...