National Court of Papua New Guinea

(7) &##160; An orga organic Lawlshale make provision for and in respect of:

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(b)&>(b) ҈&&#1ectoral system; tem; and

(c)  safeguarthe integintegritygrity rity of elections; and

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I

In p>In resn respect of the first argument, advanced nced by learned counsel for the second respondent, the first point that has to be made is that the fact that the subject ballot box was forcibly removed by anby an unauthorised person, from the direct physical custody, control and care of the electoral officials, and destroyed immediately speaks volumes about the failure, the negligence, of the responsible servants and agents of the second respondent: res ipsa loquitor. It was the legal Constitutional duty of the second respondent, through its officers, servants and agents, to ensure the security of the ballot box, and to count the votes contained therein.

It is a fact of life, such that judicial notice could properly be taken of it, that disturbances and violence are associated with conduct of elections in Papua New Guinea. More serious incidents involving lives and safety of persons have taken place at or near polling places. Thus, the need for the second respondent and its servants and agents to be more vigilant, and cautious, in the discharge of its Constitutional duties and functions.

There was ample evidence before me at the trial of disturbances and commotion both at the polling place and later at the District Office to alert the electoral officials of possible “trouble”. These evidence came from witnesses called on behalf of both the petitioner and the first respondent (for example, the evidence of Roger Bao, Poe Taranka, and polling clerks Theresa Turea and Kiso Agoniso).

It is not without consequence to note that had the electoral officials, especially the Presiding Officer and the Assistant Returning Officer, attended to complaints raised during the day, especially by the Poe Taranka, what happened at the District Office would not have come about. There was evidence that the electoral officials and the police (at the District Office) stood by and watched the ballot box being seized and destroyed.

To try to deny responsibility under these circumstances is, with respect, to engage in mischievous nonsense. The incident involving the ballot box could hardly be said to be an act of God. Nor could it properly be said to be an act of man not in the contemplation or expectation of the officials.

Section 200 of the OLNLLGE is in the following terms:

200. Offender maybe removed from Polling Booth

(1) &##160;; A persoperson who, who, in a polling booth during the polling, misconducts himself, or fails to obey the lawful direction of the presidingcer, e remfrom the polling ling booth by a member of the Police ForceForce or b or by a person authorised by the presiding officer.

Because of what usually happens at polling places in Papua New Guinea during elections, and because of what was “brewing” once Poe Taranka started complaining and yelling at the Kingston Town Buai Market polling place on the afternoon of 18 June 1997, the officers, servants and agents of the second respondent had a legal Constitutional duty to ensure the security of Ballot Box No. EHP. 1323. For a start, police presence at the polling place and at the District Office would have been requested. But no precautionary security measures were taken by the second respondent’s servants and agents. Default in this respect constituted, in my opinion, negligence of duty on the part of the second respondent.

It is my considered opinion, therefore, that this failure, this default, this dereliction of duty on the part of the officers, servants and agents of the second respondent resulted in the unlawful seizure of the subject ballot box and its destruction.

As to whether or not the petitioner would have received all of the 466 votes contained in the Ballot Box No. EHP. 1323, there was no, and there cannot be any, direct evidence on this. The 466 Ballot papers were destroyed by fire along with the ballot box. Thus, what the petitioner himself and his witnesses said on this aspect has been quite properly described or characterised by the two respondents as mere opinion. My assessment of the evidence does confirm this characterisation. It is noted, however, that part support for the petitioner’s contention came from the results of the polling at the same polling booth the very next day, 19 June 1997. It was not disputed that Ballot Boxes 1781 and 1778 were used and they contained a total of 396 votes, allocated as follows:

These emerge from the oral evidence of ttitioner’s witnesses and from Exhibit “M”8221; (tally sheet).

It has been the petitioner’s case that these figures demonstrated the validity of his contention that this particular polling place/booth was situated in his “stronghold”, his “base”, the area he was born into and raised. Therefore, he expected to received most of, if not all, the votes from here. In his evidence the petitioner said this (affidavit, Exhibit “A”, para. 4):

The Kingston Town polling place is located within my home, that is Arona, where I was born and raised up (sic) and regard it as my base area to pick up heavy block vote. The main reasons being my natural birth right and very strong customary, social and cultural ties with my people from the Arona area.

The petitioner elaborated and expanded on this theory (home base advantage) in the remaining parts of his affidavit. And this was the basis of the supporting opinions expressed by his witnesses. His brother Roger Bao said this in his cross-examination by Dr Nonggorr:

Q: &#You said all 466 votes woes would have gone to Yuntivi Bao. How do you know this.

A: & Yuntivi Bao, ihat is his bhis base, whe wan andght umily relationship. Strong basg base supe support port area.area. As can be seen from votes cast on Thursday (19 June). He collected ae votp>

It was suggested in cross-examination of the petitioner and his brother, and taken up in the submissions of both respondents, that the area “harboured” settlers from other areas and provinces, and that these settlers and long-term residents would have voted for other candidates. Both the petitioner and his brother were not moved in their stand that, firstly, there were no settlers in the area, and, secondly, that those who may have originally come into the area as settlers were now long-term residents, absorbed and assimilated into the Arona clan. As such, it was maintained, “These people, we regard them as Arona clan, they are part of us”

In view of his close association and affinity with the area in question, it was the petitioner’s claim and contention that he would have collected 466 votes (the contents of the destroyed Ballot Box No. EHP. 1323), resulting in his overtaking the declared winning candidate by a majority of 55 votes.

I agree with the respondents that there is no direct evidence that this would have been the result if 466 ballot papers had not been destroyed. Similarly, there is no direct evidence that the 466 votes would not have the result the petitioner suggests. But there is indirect evidence (opinion of the petitioner and his witnesses, and Exhibit “M”) to suggest that the petitioner would have received most of the 466 votes. I am guided and strengthered in this by what s.217 OLNLLGE obliges the court to do:

217. Resticee o bervbserved

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms andnicalr whethe evidence before it is in accordancedance with with the the law of evidence or not.

The evidence called on behalf of the first respondent were intended to demonstrate what learned counsel for the first respondent described as “numerous instances of double voting which we have noticed and other illegalities of the Petitioner and his supporters.” The second respondent takes this up also in his submissions. It is submitted in this respect by the two respondents that because of these “numerous instances of double voting”, the election and return should not be voided. The petitioner, their argument goes, does not come to this court “with clean hands”, in the language of equity.

Putting it another way, because of the numerous instances of double voting by the petitioner and his supporters, the court should do justice to the innocent party, the first respondent, by not declaring his election void, even if the court is satisfied that an error or omission was committed which affected the result of the election, or, in the alternative, an illegal practice was committed which was likely to affect the result. If there were evidence of double voting on a large scale, that would be a very good reason for the court to order that the election be conducted properly and fairly the second time.

Evidence of double voting was sought from four witnesses: Poe Taranka, Kiso Agoniso, Theresa Turea and Gill Tony. Poe Taranka, a vocational school teacher in the district and a brother of a candidate in the election in question, said that he was a scrutineer for his sister, Susan Taranka. But there was no evidence of such an appointment pursuant to s.127 OLNLLGE. It would seem there were two scrutineers operating at that polling booth that day: gentlemen by the names of Mamiso and Seket. There was no evidence that this witness actually relieved any of the two scrutineers as required: s.127(i) OLNLLGE. Be that as it may, his evidence about double voting cannot be relied upon. It was short on specifics and long on generalities. He talks about seeing “a lot of people” voting against other voters names that were called out (see: his affidavit, Exhibit “O”, paras. 10, 11 and 12).

Generally this witness (Poe Taranka) seemed to be making up stories as he went along. He is highly suggestive; appeared to me to be a person who would go along with anything put or suggested to him. Except for one name he gave (a Charlie from Okapa), he generalised about “supporters” of Yuntivi Bao. In his evidence he said he brought the matter of double voting to the attention of the Presiding Officer but nothing was done. The Presiding Officer, John Meikwar, maintained that no complaints about double voting were brought to his attention.

In his eagerness to “help” this witness said (under cross-examination by Dr Nonggorr) he believed voters used lemon and a cleaning substance to rub off the ink marks which enabled them to vote twice. But the system as described by polling clerks Kiso Agoniso and Theresa Turea was such that it would not have been possible for what Poe Taranka says to take place. It is noted, however, that the two polling clerks made no mention of lemon or some substance being used to rub off the ink marks on voters’ fingers. In fact Theresa Turea, who was responsible for placing ink marks on voters’ fingers before they voted, said that she noticed that there were still ink marks on their fingers when those same people came back to vote. She allowed them to vote because: “I could not do anything to correct the situation in fear (sic) of being assault (sic) under threats issued by supporters. In cross-examination by Mr Gamoga of counsel for the petitioner, this witness said she saw four people who still had ink marks. She could not remember their names. In re-examination by learned counsel for the first respondent, the witness said she was able to identify a supporter of the petitioner because “when Yuntivi came, they were all looking at him.” When asked by counsel how many of those people at the polling place looked at him, she answered: “There were not plenty, just one here and there”. So this is the only basis for her connecting them to the petitioner as his supporters!

Polling Officer Gill Tony was at the Uminufintenu Community School polling booth on 19 June 1997 when she says she saw the petitioner arrive with his wife and daughter and cast his vote. And here we have an identifiable person alleged to be double voting. The petitioner denied this, saying he had voted at the Kingston Town Buai Market polling booth on Wednesday 18 June 1997, and that the next day he had been summoned to the District Office for briefing or information on the destruction of Ballot Box No. EHP. 1323 the previous afternoon.

In the end result I find the evidence of the three polling clerks unreliable. I would, therefore, place no credence on their allegations of double voting. It has to be noted that they make these allegations and say nothing about their duties and responsibilities under ss.133 and 134 OLNLLGE. These two provisions set out the procedures for scrutinising the voting, and determining who was or was not eligible to vote. If these officers had been properly discharging their responsibilities under the law, as required, what they allege would not have taken place. And in respect particularly of the evidence of Gill Tony, I prefer the version of the events of 18 and 19 June 1997 given by the petitioner as the true account. Apart from suggesting to him in cross-examination that he did vote twice, no questions are asked about his whereabouts and what he was doing on Thursday 19 June 1997, to counter or contradict his own account.

Finally, it is noted in respect of the allegations of double voting that such an act constitutes a criminal offence under s.191 OLNLLGE, carrying a penalty of K400.00 fine or imprisonment for three months. It is a serious charge. Thus, if the allegations had any factual basis, then prosecutions ought to have been mounted against the perpetrators. No such course of action was taken, particularly on the part of the second respondent in due discharge of its public duties and functions under the Constitution. And yet the Commission comes to the trial of this Petition and claims multiple voting at the election. If this really were the case then such electoral offences (s.191, No. 1, OLNLLGE) were facilitated by the servants, officers, of the second respondent in failing to police or implement the provisions of ss.133 and 134 OLNLLGE as they were legally bound to. Such a failure was, or would have been, a grievous dereliction of duty on their part, and constituting errors or omissions envisaged by s.218 OLNLLGE.

FINDINGS OF FACT

In the light of the foregoing discussions on the evidence before the court, I hold that the following have been established to my entire satisfaction:

1. ;ټ The sece second rend respondent failed or defaulted in the discharge of its Constitutional duties and functions to provide and maintain proper and adequate security for the Ballot BoxEHP. resu in then the dest destructiruction of that box.

2. ;ټ T60; The pete petitioner would not have collected all of the 466 votes cast and contained in the said ballot box.

3. The petitioner neelessd htvlected cted a suba substantial portion of the 466 votes cass cast and contained in the said ballot box.

4. 0;; Tne not twic twicehe elhe electilection, ion, i.e., .e., on 18on 18 and and 19 Ju19 June 1997 at the Kingston Town Buai Market polling booth and at the Umitenu nity l polling booth respectively.

5.

5.&#160  ҈& There were were no directicredible evidence of “double voting” by the supporters of the petitioner or by anybody else.

6. ;&#1660admity boty botpondepondentndents, Bas, Ballot Box No. EHP. 1323 containing 466g 466 ballot papers for the Kainantu Open electorate were destroyed, in thmissi an il practice, by a person named Poe TaranTaranka.

THE LAW

The law regarding errors and omissions on the part of electoral officials is well-established in this jurisdiction. Similarly the law as to what constitutes an illegal practice. The legal consequences of these are also well-established.

Section 218 OLNLLGE provides under sub-section (1) that:

(1) ـ Subjectuto Subsectisection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2) &##160; .....

Uyon mdifinding of facts, under paragraph (1)(supra), it is the judgment of this court that that failure and default on the of thctoraicials constituted errors or omissions ions as envisaged by s.218(1) OLNLLGE. Thi. This cass case is somewhat similar, in its result or consequence, to the case of In the Matter of Charlie Maino Auki [1973] PNGLR 243. What happened there could properly be described as the consequence of an act of God, whereas here the “mishap” was the direct consequence of a preventable, avoidable, human action.

It is the judgment of this court that what Poe Taranka did with and to the ballot box and its contents could have been prevented or avoided by the responsible electoral officials taking proper and adequate security measures.

Did these errors or omissions affect the result of the election? The answer is in the positive. The winning margin between the first respondent and petitioner was 411 votes. Ballot Box No. EHP. 1323 contained 466 votes which were destroyed. They were cast at a polling booth in an area claimed by the petitioner and his supporters to be his “stronghold”, where he expected to receive a large block vote. This was the polling booth that returned a majority of votes in favour of the petitioner in the voting on 19 June 1997. It is not without consequence to note that the first respondent did not earn any votes from there on that day.

Whilst I am not persuaded to the requisite degree that the petitioner would have received the entire 466 votes, I am nevertheless satisfied that he would have received a substantial number of those votes. It is the judgment of this court that, furthermore, those substantial number of votes would affect the result of the election.

In respect of the allegation of illegal practices, the pertinent provision here is s.215(3) OLNLLGE, which reads:

(3) ـ The Nat onal Court ourt shall not declare that a person returned as elected was not duly elected, or declare an election void

(60;&##160; on the ground of angilleral practice committed by a py a personerson othe other than the candidate and without the candidate’s knowledge or authority;

or

(b) ;ټ on the the groundround of an illegal practice other than bribery or undue influence or an attempted bribery or undue influence,

unless the Court is satisfied that the result o elecwas likely to be o be affecaffected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

To summarise this provision, in the light of the facts of this case, if a person other than the winning candidate commits an illegal practice, the court must be satisfied that the result of the election was likely to be affected and that, therefore, it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

What Poe Taranka did with Ballot Box No. EHP. 1323 on the afternoon of 18 June 1997 in front of the Kainantu District Office constituted an illegal practice envisaged by s.215(3) OLNLLGE. And, upon the same reasons as for the errors or omissions of the electoral officials, I hold that the destruction of the 466 votes was likely to affect the result. Furthermore, under the circumstances of the entire conduct of the elections in question, and the subsequent events, it is the considered opinion of this court that the election and return under challenge here should not be allowed to stand.

It is, therefore, the judgment of this court that as a consequence of the errors and omissions of the electoral officials resulting in the destruction of the 466 ballot papers, the result of the election were affected. But if I am wrong in this conclusion, which I hold I am not, the result of the election was likely to be affected by the illegal practice committed by Poe Taranka. Thus, the court concludes the election and the return should be declared void, as being just under the circumstances.

THE COURT SO ORDERS AS FOLLOWS

1. &#T60; ete Pon ti grasted.

2. ;ټ The fire first rest respondent, Baki Reipa, was not duly elected

3. ټ The 1997 electi thei the nal Pmentary seat of Kainantu Open is void.

4.  <ـ A by-election tion for the said electorate be held according to

Lawyers for the 1st Respondent: Pato Lawyers

Lawyers for the 2nd Respondent: Nonggorr & Associates