Unreported National Court Decisions
N1718
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
E.P. 40 OF 1997
BETWEEN
THOMAS TUMON SUMONO
PETITIONER
AND
FR. LOUIS AMBANE
FIRST RESPONDENT
AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
SECOND RESPONDENT
Mount Hagen
Andrew J
20-22 April 1998
22 May 1998
ANDREW J: This is a petition contesting the validity of the election in the Chimbu Provincial Electorate in the 1997 National Elections on the ground of irregularities in electoral procedures.
At the general elections in June and July 1997 there were 36 candidates who contested the Chimbu Provincial Electorate. The results of the top five candidates were:
1.	Fr. Louis Ambane	17,589 votes	
2.	Andrew Saki Porr	17,567 votes	
3.	David Goro Mai	17,473 votes	
4.	Waguo Goiye	16,759 votes	
5.	Thomas Tumun Sumono	16,222 votes	
Therefore the runner up received 22 votes less than Fr. Louis Ambane who was the candidate declared elected, whilst the petitioner Mr Thomas Sumono received 1,367 votes less than the winner and came fifth.
The main ground of the petition is that by various errors and omissions by electoral officers some 1,900 votes were not counted which should have been counted and that this would have affected the result of the election. It is alleged that at four different polling places there were insufficient ballot boxes supplied to contain all the votes which had been cast and that the Presiding Officers then used patrol boxes which were filled with votes and that they were then correctly numbered and tagged and sealed. At the time of counting the Provincial Returning Officer refused to count these votes on the ground that they were contained in unofficial boxes and not in the required electoral boxes.
These allegations are not really disputed. The various Presiding Officers involved have given evidence that the ballot boxes which they were provided with had become filled to capacity and they were unable to obtain any further ballot boxes. They then authorised the use of patrol boxes. One of the Presiding Officers was unavailable to give evidence and I am satisfied that the petitioner has established on the evidence of the other presiding officers, that there were approximately 1,300 votes contained in these patrol boxes which were ultimately not included in the count.
The first issue to be decided is whether the Returning Officer was correct or not in his decision to refuse to count these votes because they were contained in “unofficial boxes”.  S. 118 of the ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS (“THE ORGANIC LAW”), provides that the Returning Officers shall make all necessary arrangements for taking the poll and in particular shall appoint a Presiding Officer to preside at each polling place and all necessary Assistant Presiding Officers, poll clerks, and door-keepers, and provide and furnish proper polling booths, ballot-boxes, ballot-papers and all necessary certified lists of votes. S. 122 of the ORGANIC LAW provides:
“122    BALLOT-BOXES
(1)      Each polling booth shall be provided with the necessary ballot-box or ballot-boxes.
(2)      A ballot-box shall have a cleft in the cover through which the ballot-papers may be deposited on the box, and shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot-papers or other matters or things can be deposited or placed in the box or withdrawn from it.
(3)      A ballot-box shall be capable of being securely fastened with a lock”.
S. 130 of the ORGANIC LAW then establishes how the ballot-box is to be exhibited empty before the first ballot paper is placed inside and how it is to be then securely fastened. S. 138 establishes how a ballot paper is to be deposited in the ballot-box.
I think it is clear from all of these provisions that it is the intention of the ORGANIC LAW that only an official ballot-box which complies with the requirements of S. 122 may be used at the election and that a vote is not a vote unless it is placed in a proper ballot box. It is not difficult to understand why this should be so for otherwise the possibility of fraudulent voting would be legion. Further, S. 154 (2) provides that the Electoral Officer shall, at the scrutiny, open all ballot-boxes received within the electorate. Clearly therefore only official or authorised ballot-boxes may be used at an election and then opened for the votes to be counted. I am satisfied that the Returning Officer was correct in his decision not to open the unofficial patrol boxes and in his decision not to count the votes which they contained.
But it is also clear that the Returning Officer was in error in failing to provide sufficient ballot boxes as required of him by S. 118 and S. 122 of the ORGANIC LAW. This is an irregularity which caused approximately 1,300 votes (in the evidence in this petition) to be discounted. I am satisfied that this is an error or omission within the meaning of S. 218 of the ORGANIC LAW which prevented those persons from voting.
By S. 218 an election shall not be avoided on account of an error or omission by an Electoral Officer which did not affect the result of the election. This section was discussed in IN RE MORESBY NORTHWEST PARLIAMENTARY ELECTION [1977] P.N.G.L.R. 338, where it was held that it is not necessary for the petitioner to prove that the alleged irregularities actually affected the result of the election and that the result of the election means the return of the particular candidate. Upon such a provision all that has to be shown for the petitioner to succeed is that the irregularities may have affected the result. This involves proof of the existence of such a possibility, but it must be a real possibility and not remote.
The origins and meaning of our S. 218 were discussed in COLE V LACEY [1965] C.L.R. 45 at 48 (where S. 194 of the COMMONWEALTH ELECTORAL ACT is in the same terms as our S. 218 of the ORGANIC LAW), the court said:
“The section in its original form and as re-enacted by the Commonwealth Electoral Act 1918 was the subject of consideration by Isaacs J in KEAN V KERBY (1920) 27 C.L.R. 449 at 458. At this time the section read: 
“No election shall be avoided..........on account of the absence or error of any officer WHICH SHALL NOT BE PROVED TO HAVE AFFECTED the result of the election”. 
Isaacs J pointed out that in England the relevant law provided “That no election shall be declared invalid by reasons of non-compliance with the election rules......if it appears to the Tribunal (a) that the election was conducted on accordance with the principles laid down in the body of the Act, and (b) that such non-compliance.......DID NOT AFFECT the result of the election”. Thereafter he proceeded: “In other words, if the matter is left so that the mistake may have affected the result, the election may be declared invalid. Under our act it is different. By S. 194 it is provided that “No election shall be avoided........on account of the.......error of any officer which shall not be proved TO HAVE AFFECTED the result of the election”. The “result” means the return of the particular candidate and not the numbers of his majority”. These observations were made in 1920 but by the COMMONWEALTH ELECTORAL ACT 1922, S. 194 was amended by omitting the words “shall not be proved to have affected” and inserting in their stead the words “did not affect”. The present form of the section having regard to its history leaves no room for the suggestion that in a case such as the present it is incumbent upon the petitioner to allege, OR, at a latter stage, to prove that the alleged irregularities affected the result of the election”.
As already stated the Australian Act is in the same terms as our S. 218 and that all that has to be shown for the petitioner to succeed is that the irregularities may have affected the result which involves proof of the existence of such a possibility, but it must be a real possibility and not remote.
In applying that test to the present petition it could be argued that the error or omission is not likely to have affected the result insofar as the petitioner is concerned because he lost by 1367 votes and it has been proved that only approx 1,300 votes are affected. But it is “the result” meaning the return of the particular candidate which is the issue and by S. 217 of the ORGANIC LAW the National Court shall be guided by the substantial merits and good conscience of each case. The fact is that the runner-up lost by only 22 votes, the 3rd place getter by 116 and the fourth by 830. The question of whether the irregularity affected the result of the elections may be determined by making a comparison between the actual voting and what the voting may have been if the elections had been free from the irregularity. (IN RE MORESBY NORTHWEST PARLIAMENTARY ELECTION GAVERA REA V MAHURU MAHURU RARUA (supra) ).  I think that given the closeness of this result if could only be said that the irregularity affecting approx. 1,300 voters and depriving them of an effective vote, not only may have affected the result but in all probability would have affected the result.
The conclusion which I have reached in that the irregularities may in all probability have affected the result of the election and the ground has been established upon which the election may be declared void and the petitioner is entitled to his relief under S. 212 of the ORGANIC LAW.
Accordingly there will be a declaration:
1.       That the first respondent who was returned as elected was not duly elected and
2.       That the general election for the CHIMBU PROVINCIAL ELECTORATE was absolutely void, and further order that the deposit be paid to the petitioner.
The effect of this order is that a new election shall be held, ORGANIC LAW S. 226 (c).
Lawyer for the Petitioner: P. Palme
Lawyer for the 1st Respondent: Kamo Pelisa
Lawyer for the 2nd Respondent: Andrew Kongri