Luke Alfred Manase v Don Pomb Polye and Andrew Trawen, Chief Commissioner, Electoral Commission of Papua New Guinea (2009) N3718

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 14 August 2009
• Court: National Court
• Citation: (2009) N3718
• Docket Number: EP No. 3 of 2007
• Year: 2009
• Judgement Number: N3718

Full Title: EP No. 3 of 2007; Luke Alfred Manase v Don Pomb Polye and Andrew Trawen, Chief Commissioner, Electoral Commission of Papua New Guinea (2009) N3718

National Court: Lay J

Judgment Delivered: 14 August 2009

N3718

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 3 of 2007

BETWEEN

LUKE ALFRED MANASE

Petitioner

AND

DON POMB POLYE

First Respondent

ANDREW TRAWEN,

Chief Commissioner, Electoral Commission of Papua New Guinea,

Second Respondent

Waigani: Lay J

2009: 14th August

NATIONAL ELECTIONS - 2007 - Open Seat for Kandep - whether particular polling places affected by illegal practices or errors & omissions - meaning of winning margin in Limited Preferential Voting.

Facts

The First Respondent was declared the winning candidate in the election for the Open Seat for Kandep in the 2007 National Elections. He received 21,820 votes out of the total formal votes of 31, 546. The Petitioner received 3149 votes the next highest number received by a candidate. The Petitioner alleged widespread and systematic stealing of ballot boxes and other illegal practices.

Held

1. The winning candidate must receive 50%+1 of the total formal votes cast. The amount of votes received above 50% is the winning margin;

2. If the votes affected by illegal practices and lost votes exceeds the winning margin, it has been proven that the result of the election was likely to be affected;

3. The winning margin was 6047. The number of votes affected by illegal practices & lost votes totalled 7562;

4. The First Respondent was not duly elected and the election is absolutely void.

Cases Cited:

Tawaman v Zurenuc, EP 1 of 2002, 18th December, 2002, Injia J

Embel v Kopaol (2003) SC 727

Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner (1998) PNGLR 99

Dick Mune v Anderson Agiru & ors (1998) SC 590

Thompson v Pokasui [1988] PNGLR 210

Maino v Moi Avei (2000) SC 633, [2000] PGSC 6

Sidi Adevu v MVIT [1994] PNGLR 57

Kamma v Itanu (No. 2) [2008] N3261

Cosmos Kitau Kitawai v The State (2007) SC927

Togel v Ogio [1994] PNGLR 396

Baki Relpa v Yuntivi Bao [1999] PNGLR 232

Ano Naime Maraga & 2 Ors v The State (2009)

Baki Reipa v Electoral Commission & Yuntivi Bao (1999) SC 606

Ephraim Apelis v Sir Julius Chan (1998) SC 573

Paias Wingti v Kala Rawali and Tom Olga (2008) N3286

Overseas Cases Cited

Browne v Dunn (1893) 6 R 67

Counsel

P. Mawa, for the Petitioner

P. Dowa, for the First Respondent

R. William, for the Second Respondent

DECISION

14th August, 2009

1. The 2007 National Elections were held for the Kandep Open seat on the 3rd and 4th of July 2007. It was the first National Election held under the Limited Preferential Voting system (LPV). The First Respondent was declared duly elected on the first preferences on 16 July 2007. His was the only seat to be declared elected on the first preferences in the National Election. He polled 21,820 votes from a total of 31,546 formal votes cast. The Petitioner polled 3149. The Petitioner receives the next highest number of votes after the First Respondent.

2. In the LPV system of voting the voter indicates his three choices in order of preference. The winning candidate is the candidate who receives 50% of the validity cast votes +1: Organic Law on National and Local Level Government Elections(the organic law) section 168 (1)(b) and 168 (4). Where no candidate receives 50% plus one on the count of the first preferences, the 2nd preferences of the voters for the candidate who has received the fewest votes are distributed to each of the other candidates and that process continues until a candidate has 50%+1. As I mentioned, in this case neither the 2nd or 3rd preference votes were counted because the First Respondent received 50% plus one on the count of the first preference votes. 50% of 31,546 formal votes cast is 15,773+1 equals 15,774. So the First Respondent, who received 21,820 votes, received 6047 votes more than he required to win.

3. The burden of proof, the person who must prove, is the Petitioner. The standard of proof is high, the court must be completely satisfied almost to the criminal law standard of beyond reasonable doubt: Tawaman v Zurenuc; EP 1 of 2002 18th December 2002 Injia J (as he then was). The Supreme Court has said "... because undue influence is a criminal offence, for the ground to succeed the petitioner must prove every element of the offence of undue influence beyond all reasonable doubt for the petition to succeed" Embel v Kopaol (2003) SC 727 at 19. And I take that to be the principal applicable to all allegations of illegal practice, whatever they may be because they are all criminal offences.

4. The trial commenced in April 2008, 101 witnesses were called and their affidavits tendered. 136 electoral documents were tendered. The hearing of the evidence was complete at the end of March 2009. The parties submitted extensive written submissions (totalling 330 pages) and a full day of oral submissions were heard in June 2009. I thank counsel for the considerable efforts that they have put into the submissions, which has been of assistance in identifying discrepancies in the evidence and deciding whether those discrepancies are significant or not.

5. Section 208 (a) of the Organic Law on National and Local Government Elections ("the organic law") requires that all of the material and relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated must be set out in the petition. There is no requirement to plead the evidence: Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner (1998) PNGLR 99 Kapi DCJ, Los and Hinchliffe JJ per Kapi DCJ. There is no requirement to plead the law: Dick Mune v Anderson Agiru & Ors (1998) SC 590 Amet CJ, Woods and Injia JJ per Woods and Injia JJ. If further particulars are required to properly understand the petitioner's ground, the petition has not complied with section 208 (a) to plead the facts on which he relies: Thompson v Pokasui [1988] PNGLR 210 per Bredmeyer J with whom Cory and Hinchcliffe JJ agreed. The results obtained by the winning candidate and the petitioner, and the calculation of how the grounds pleaded affect the results, should be pleaded: Robert Kopaol v Philip Embel (2003) SC 727 Sawong, Kirriwom and Batari JJ. The Petition cannot be amended after the 40 days declaration of the result allowed for filing of a petition: Robert Kopoal v Philip Embel (2003) SC727.

6. The results of an election can be set aside if it is alleged in the petition and the evidence proves that (1) there were illegal practices which might have affected the result of the election, and, if the successful candidate is not guilty of any illegal practice, it is still just and equitable that the result of the election be set aside: Section 215 of the Organic Law. (2) Or where there are errors or omissions on the part of an officer which did affect the result of the election: Section 218 (1) of the Organic Law; Dick Mune v Anderson Agiru & ors (1998) SC 590. If the integrity of the results of the whole election is in question, that is pleaded and proven by evidence, such that a judge can reasonably conclude that the results of the election as a whole was in fact affected the question should be determined by the substantial merits and good conscience of each case without regard to legal forms or technicalities: Section 217 of the organic law; Maino v Moi Avei (2000) SC 633, [2000] PGSC 6.

7. When the organic law talks about an illegal practice, it means something against the law for which the law provides a penalty, either a fine or a jail term, a criminal offence; it does not mean an omission to comply or an error in complying with a statutory administrative direction: Dick Mune v Anderson Agiru & ors (1998) SC 590;

8. The Petitioner presented a Petition pleading 37 grounds as the basis on which the results of the election should be set aside. At the commencement of the trial objection was heard to a number of grounds in the petition on the basis that they did not comply with Section 208 (a) of the Organic Law. Grounds were struck out on the basis that what was being alleged could not be understood and on the basis that what was alleged did not contain sufficient facts to amount to an allegation of an illegal practice or an error or omission by an officer. Some parts of grounds were struck out because they were incomprehensible. It remained for argument on the trial as to whether the balance of the pleaded facts were sufficient to make out a ground.

9. Once the preliminary applications were dealt with there were 31 grounds of the petition to go to trial. Most of these fell into the broad grounds of:

i) hijacking (stealing) ballot boxes and ballot papers and filling in the ballot papers and putting them in the box, generally known as stuffing the ballot box;

ii) officials marking ballot papers contrary to the way they were instructed by...