Hoap v Iwei [2008] PGNC 118; N3420 (17 June 2008)

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PARLIAMENT – Elections – Disputed returns – Election petition – Allegation of errors and omissions – Counting – Distribution of ballots – Excess ballot papers – Discovery of additional 244 ballot papers in petitioner’s tray – Status of the 244 ballot papers - Decision by Returning Officer to remove the 244 ballot papers from petitioner’s tray – Whether Returning Officer has authority to remove ballot papers – Scrutiny – Conduct of – Whether Returning Officer’s action should have been subjected to scrutiny - Whether Returning Officer’s action constitutes error and/or omission – Whether results of election affected.

Organic Law on National and Local Level Government Elections, ss 19, 137, 151, 152, 153A, 168, 171, 172, 206, 212, 215, 218
Electoral Law Regulation 2007, ss. 3, 5, 85, 86

This is a petition by the petitioner, Steve Toap Hoap who was an unsuccessful candidate for the Telefomin Open Electorate in the 2007 National General Elections. After declaration of the election result on 24 July, 2007, he filed this petition disputing the election of the first respondent as the elected Member of Parliament for Telefomin Open Electorate.

The first respondent objected to the petition as being incompetent on the grounds that firstly, the date of declaration pleaded in paragraph 2 of the petition is in correct, and secondly, the petitioner failed to state whether the 244 votes in question were marked as first, second or third preference votes in his favour.

The objection was heard on 4 March 2008 and dismissed on the same day for reasons that are on record, therefore the petition proceeded to substantive hearing.

Counsels:
Ms. C. Copland, for Petitioner
Mr. P. Mawa, for First Respondent
Mr. R. William, for Second Respondent

1. SEVUA, J: The petitioner, Steve Toap Hoap, is disputing the validity of the election of the first respondent, Peter Welawe Iwie to the National Parliament following the declaration of results of the Telefomin Open seat in the 2007 National General Elections.

2. The petitioner alleged that during counting of votes at the Telefomin Council Chambers on 17 July 2007, it was discovered that there were extra ballot papers exceeding 244 discovered from the redistribution of preferences votes for Candidate No 10, Mary Tarp Lane, in the petitioner’s tray. At about 3:00 pm on 22 July 2007, the Returning Officer directed that the said 244 ballot papers be removed from the petitioner’s tray and tally. The petitioner says that the direction of the Returning Officer to exclude those votes amounted to an error or omission by the second respondent. There is no other allegation against the second respondent, and there is no allegation against the first respondent.

3. The petitioner therefore seeks the relief and orders claimed in paragraph 13 of his petition, which are para-phrased as follows:-

4. The evidence of the petitioner consists of the sworn affidavits of William Bisan and David Akis who also gave sworn evidence and were cross examined. Their affidavits were tendered and marked Exhibits "C" and "D" respectively.

5. William Bisan’s evidence is that he was a scrutineer for the petitioner during the counting at Telefomin Community Hall on Saturday, 21 July 2007 when there was a "foul up" of ballot papers in respect of the petitioner’s tally. He said after candidate, Mary Tarp Lane was eliminated, a total of 554 votes were posted to the Tally Board in favour of the petitioner and he witnessed that. Those votes were preference votes that came from Mary Tarp Lane after she was eliminated.

6. However, he later saw that the figure of 554 was adjusted to 310 on the Tally Board. He calculated that 244 ballots were subtracted from the 554 thus giving the adjusted tally of 310 votes.

7. At that time, counting officials said there were excess ballot papers therefore counting was suspended to the next day so that the issue of excess ballot papers could be resolved. Scrutineers were told to leave the counting centre. When the witness returned in the afternoon of the next day, he said the Returning Officer said he had spoken to officials in Port Moresby who had advised him to remove the excess ballot papers although he did not specify how many ballot papers were being removed and whether the removal of those ballot papers were subject to scrutiny.

8. I pause here to say that there is a slight variance in the evidence of William Bisan at this point. In his affidavit he said the Returning Officer had removed "excess ballot papers" but did not inform the scrutineers of the number of ballot papers removed. However in his oral testimony, he said the Returning Officer had removed 244 ballot papers from the petitioner’s tray and after the 244 ballot papers were removed the figure on the Tally Board was adjusted from 554 to 310 votes. He maintained that there was no explanation by the Returning Officer as to why the 244 ballot papers were removed from the petitioner’s tray.

9. The witness said he was not given the opportunity to raise any objection and when asked by the Court why, he said there were security force members and other scrutineers present and was afraid of the security force so he did not object. I find that strange, especially when he was representing the interest of the petitioner, but did not object to what was seemingly to him, an anomaly or "foul up" as he described. He had the right and the opportunity to object, but he chose not to, and said the Court would resolve this problem.

10. Following the removal of the 244 ballots, the Returning Officer directed counting to continue. Although the witness said he did not see the face of the ballot papers, he said he saw the 244 ballots being removed from the petitioner’s tray.

11. That witness’ evidence directly contradicts that of the second witness for the petitioner, David Akis, who was a counting official at the counting centre.

12. David Akis is a Secondary School Teacher and comes from Telefomin. He swore an affidavit in this matter, Exhibit "D". He arrived at the counting centre on Sunday, 22 July 2007 at about 2:00 pm and assisted in checking the primary counts for Candidate No. 10, Mary Tarp Lane. The counting officials had to check that candidate’s ballots because of the allegation of excess ballot papers raised the previous day.

13. The witness said he then noticed that there were new serial numbers of ballot papers from 28,000 to 28,500 which were not in the primary counts for Mary Tarp Lane. He counted 490 ballot papers. He then consulted the Presiding Officer for Yapsie LLG, Petrus Lepki, who confirmed that those ballots papers were from Yapsie LLG area. When they checked the summary count on the Tally Board, they discovered that Mary Tarp Lane collected only 6 votes from the Yapsie area.

14. It was then that they suspected something was wrong so the Returning Officer told the counting officials to leave the counting centre while he investigates the anomaly. The witness then left and did not return until the next day. However, by the sworn testimony of the Returning Officer, John Kalan, he (Kalan) was in Church on that day, Saturday, 21 July 2007.

15. Again I make an observation that David Akis’ evidence in respect of the presence of the Returning Officer that day, conflicted with the sworn testimony of the Returning Officer himself.

16. When asked about the existence of the 244 votes, he said he did not know about those votes, but recalled Sunday, 22 July when he was involved in checking the primary counts or first preference votes for Mary Tarp Lane. He did not know that ballot papers were removed from the petitioner’s tray. He knew the Returning Officer, John Kalan, who told him (witness) that there some anomalies and that he was confused about the 490 votes. The witness said he was not told by the Returning Officer that he (RO) had spoken with officials in Port Moresby, however the Returning Officer excused the counting officials who left the counting centre and went outside. The witness did not hear the Returning Officer say he had talked with people in Port Moresby.

17. Finally, when asked by the Court, David Akis said the 490 ballots he counted during his check were first preference votes for Mary Tarp Lane. The second preference votes went to the petitioner. Akis did not say how many second preference votes went to the petitioner.

18. Both witnesses were recalled by the Court on the morning of the second day of the trial (5 March 2008). Upon questions by the Court, William Bisan said he did not know if the 554 votes he had alluded to in his oral testimony had come in one or more ballot boxes and he did not know which polling area those ballot papers originated. David Akis also said he did not know if the 490 ballot papers he referred to in his oral evidence came in one or more ballot boxes.

19. The question therefore is, how did those extra ballot papers get into the Counting Centre and eventually into the petitioner’s tray?

20. Apart from the two affidavits filed by those two witnesses and Form 66A and Form 66B, marked Exhibits "A" and "B" respectively, that is the case for the petitioner.

21. The first respondent did not call any witness because the allegation in the petition was against the second respondent, the Electoral Commission only therefore his counsel only kept a watching brief during the trial. But he was permitted to make submissions at the end of the trial after the Court reconsidered its earlier intimation at Status Conference that the first respondent should not be permitted to address the Court as there is no allegation against him.

22. However the second respondent called the Returning Officer, John Kalan, who gave evidence on oath and was extensively cross examined by the petitioner’s counsel. The Returning Officer also swore an affidavit which was admitted into evidence and marked Exhibit "E".

23. The evidence of John Kalan is this. He was the Returning Officer for the Telefomin Open Electorate during the polling and counting for that electorate in the 2007 National General Elections. He said that counting for the Telefomin seat commenced on 17 July 2007 at the Telefomin Council Chambers at 8:45 am. On Friday afternoon, 20 July 2007, counting of the primary or preference votes was completed and preparations for the elimination process took place from Friday evening to Saturday morning.

24. At this juncture, it is necessary to say that it would appear that the inference to be drawn from this is that the Returning Officer was physically present during such preparations although he did not specifically say so. It became evident in his oral testimony at the trial on 5 March 2008 that he was not present at the Counting Centre on Saturday, 21 July 2007 as he was attending Church Service and did not return to the Counting Centre until Saturday evening. The significance of that observation is that he did not see or know what had occurred on that Saturday, and he did not say that he observe or take part in the preparations for the elimination process that day.

25. I return to his evidence again and also note that in his affidavit, Exhibit "E", John Kalan referred to the elimination of Candidate No. 10, Mary Tarp Lane. However, I must, once more, make the observation that the Returning Officer was not prepared to tell the truth that he was not available during the elimination of Mary Tarp Lane at Elimination 13 on Saturday, 21 July 2007 for the reason I have alluded to, yet he gave evidence which gave the impression that he was there and he observed and knew what had transpired at the Counting Centre on Saturday, 21 July 2007.

26. If I may divert here briefly, I need to say that, even though I am mindful of the requirement of s. 217 of the Organic Law which deals with observing real justice, I need to say that the Returning Officer’s evidence in respect of the elimination of Mary Tarp Lane; her primary first preference votes and the distribution of the second and third preferences votes from her ballot papers are all hearsay evidence. The Returning Officer was not present therefore did not see for himself what had occurred at the Counting Centre on Saturday, 21 July 2007 because he was in Church, therefore could not give evidence of what had occurred that day.

27. Furthermore, in his oral testimony, the Returning Officer, John Kalan, also referred to the elimination of Mary Tarp Lane and the distribution of her other preference votes and this was coming from him after being sworn. For example, I will refer to a question and answer in his evidence in chief to demonstrate this issue from my notes of the proceedings:

"Q. You were Returning Officer during counting at Telefomin during the 2007 Elections. There is allegation that some 244 votes were removed during counting from the petitioner’s tray. Do you recall if that occur?

After distribution of these total votes to running candidates’ exhausted ballot paper, "we" came to a difference of 244. As it was a large number of ballot papers "we" stopped the elimination process so "we" could investigate how the excess ballot paper came about. "We" recounted all the ballot papers to confirm the difference, that is, "we" recounted the 915 votes to ascertain if there was a decrease or excess of the 244 votes...........", (my emphasis).

28. To my mind, the use of the word "we" clearly implied that the Returning Officer was present and he participated in the elimination of Mary Tarp Lane, (my emphasis). However his oral evidence is clear, he did not participate in the counting process on Saturday, 21 July 2007.

29. Because I consider that this hearsay evidence will affect the issue of the 244 votes, I am of the view that I ought not to accept that evidence. In observing real justice under s. 217, I am of the opinion that I should reject that evidence and for that reason, I will strike out parts of his affidavit from the last sentence of paragraph 4 to paragraph 10 inclusive of his affidavit sworn on 15 October 2007, Exhibit "E", and also reject the hearsay evidence from his oral testimony, part of which I have already alluded to above.
It is evident to the Court that in his evidence on oath, the Returning Officer, John Kalan, had intentionally misled the Court into believing that the evidence he gave in respect of what had transpired at the Counting Centre on Saturday, 21 July 2007 was observed and witnessed by him personally.

30. However, it became evident as well that he was not present on Saturday, 21 July 2007 as he was attending Church Service and did not get to the Counting Centre until the evening. Therefore, in my view, he cannot give evidence of the counting process during the period he was absent. Consequently, his evidence pertaining to the counting on Saturday, 21 July 2007, particularly, during the day time, is hearsay therefore inadmissible.

31. Furthermore, in his testimony, John Kalan made reference to a District Election Management Committee which comprised of the District Administrator, Deputy Chairman Provincial Election Screening Committee and Assistant Returning Officers which conducted an investigation into the 244 ballot papers, however, he was not a member of that investigating committee, which he said, "took us" almost two days to recommend to remove those 244 ballot papers from the count" (my emphasis).

32. As I understood from his evidence, that Committee considered the Returning Officer’s Ballot Papers Delivery Dockets and the Assistant Returning Officers’ Distribution Dockets, but did not have, and did not check the Presiding Officer’s Returns, which is a very important document in so far as ballot papers are concerned. It was his evidence that the Committee did not produce a written report of its investigation therefore everything that he referred to in his evidence relating to the Committee and its investigation, as well as the events at the Counting Centre on Saturday, 21 July 2007 are all hearsay because he was not present that day and was not in the Committee that carried out the investigation.

33. The following questions and answers in cross-examination clearly demonstrate the Returning Officer’s absence that day.

"Q.	Refer to your affidavit, Exhibit "E" at paragraph 14. You say that First Preference was completed on Friday, 20 July in the afternoon, correct?
A.	Yes
Q.	So you say Mary Tarp was eliminated on Saturday, 21 July 2007, in your oral evidence?
A.	Yes
Q.	She was eliminated on Count 13, correct?
A.	Yes
Q.	When did elimination commence?
A.	Elimination started on Saturday when I was attending Church Service. Final preference was completed on Friday, 20 July and I left it to the counting officers.
Q.	So you were not at the counting on 21 July 2007
A.	I was not at counting as I was attending Church Service.
Q.	When did you arrive at the counting centre the next time?
A.	Late Saturday evening, approximately 5.30 or 6.00 pm." (all my underlining)

34. In my view, one area of concern in this petition is the deliberation and decision of the District Election Management Committee in relation to the Returning Officer’s functions and powers under s.19. I will revert to this issue later in the judgment.

35. At this juncture let me complete the discussion of the whole evidence in this petition.

36. The evidence of the petitioner’s witnesses seemed to be contradictory in some respects. The evidence of William Bisan seems to be contradictory to the evidence of the Returning Officer, especially in relation to whether the Returning Officer did speak to Electoral Commission officials in Port Moresby or not. But to my mind, that is not really material to the issue, although it may be in so far as scrutiny is concerned.

37. However, I am of the view that the facts surrounding the 244 ballot papers are not really in dispute. It is not disputed that there were 244 ballot papers that were removed from the petitioner’s tray. It is not disputed that the Returning Officer did remove those votes. In essence, all the evidence relating to the 244 ballot papers are clear even though there are some variances in the evidence of William Bisan compared to John Kalan.

38. All in all, I find as a fact that a total of 244 ballot papers were removed from the petitioner’s tray after the No. 13 Elimination where Candidate No. 10, Mary Tarp Lane was eliminated.

39. I also find as a fact that the Returning Officer, John Kalan, was not present at the Counting Centre on Saturday, 21 July 2007. He was attending Church Service until about 5.30 or 6.00 pm when he returned to the Counting Centre. I find as a fact too that, as the Returning Officer was not present at the Counting Centre on Saturday, 21 July 2007; he did not see nor witness what had transpired during the counting process that day.

40. I accept that when he left the Counting Centre on Friday evening, 20 July, he did not return to the Counting Centre until the evening of Saturday, 21 July 2007. That is also an undisputed fact.

41. On those facts, I am entitled to find, and I so find, that the evidence of John Kalan, the Returning Officer, pertaining to what had occurred during day time on Saturday, 21 July 2007 at the Counting Centre is mostly hearsay and I reject the hearsay evidence. However I accept his evidence that on Saturday evening, when he returned to the Counting Centre, he removed the 244 ballot papers from the petitioner’s tray. That is also a fact.

42. The issue for consideration by the Court is whether the action of the Returning Officer in removing the 244 ballot papers from the petitioner’s tray amounted to an error and/or omission.

43. In determining that issue, I start with s.19 of the Organic Law. Although there is no evidence of John Kalan being gazetted as the Returning Officer for the Telefomin Open Electorate election in the 2007 National General Elections, the Court accepts that as a fact because it was not an issue in the trial.

44. The significance of that provision is that the Returning Officer is by law, the person who gives effect to the operation of the Organic Law in the conduct of a Parliamentary election in an electorate.

45. In the present case, the Returning Officer, John Kalan, was charged with the running of the elections for the Telefomin Open Electorate in the 2007 National General Elections. No one else had any authority over the Retuning Officer except the Electoral Commission because the Returning Officer is subject to the direction and control of the Electoral Commission by virtue of s. 19 (1) Organic Law and s. 3 Electoral Law Regulation 2007.
Whilst s. 19 (3) empowers the Returning Officer to seek assistance from a Committee, there is no evidence before this Court that the Committee referred to in the oral testimony of the Returning Officer had been established in consultation with the Electoral Commission in accordance with that provision. Sub-section (4) empowers the Regulation to establish a Committee to assist a Returning Officer.

46. Section 19 (1) Organic Law which relates to the powers of the Returning Officer is supported by s. 3 Electoral Law Regulation 2007. That provision in the Regulation stipulates that all electoral officials including Returning Officers "are subject to the direction and control of the Electoral Commission on all matters relating to or connected with elections." The powers and functions of the Returning Officer are clearly stipulated in s. 5 of the Regulation 2007

47. The making of a declaration for an electorate by the Returning Officer is also subject to the Electoral Commission’s direction and if he makes a decision contrary to a direction by the Electoral Commission that declaration is invalid. See s.19 (7) Organic Law. This issue does not arise in the present case; however, I will refer to it later in the judgment.

48. The counting of votes is subject to scrutiny in accordance with Part XIV of the Organic Law. By s.151 (1) (c), all the proceedings at the scrutiny must be open to the scrutineers’ inspection. There are very good public policy reasons that they must be so. One of the reasons that scrutineers are appointed is that they must carefully scrutinize the counting of votes so that the integrity of the counting process is not jeopardized or undermined by any unlawful conduct by counting officials.

49. The procedures for admitting or rejecting informal ballot papers are provided by s.152 of the Organic Law. That process is triggered off by an objection raised by a scrutineer. Under s.153A, the Returning Officer has the discretion to exclude from counting any ballot box which contains ballot papers, where in his opinion, the ballot papers in the ballot box were not cast lawfully or the ballot boxes were tampered with so that the integrity of the ballot papers has been compromised.

50. The basis for the Court recalling of the two petitioner’s witnesses was to correctly ascertained if the 244 ballot papers in question came in one ballot box or more than one ballot boxes and how they were brought into the Counting Centre and whether they underwent strict scrutiny process prior to being placed in the petitioner’s tray.

51. The recount of ballot papers is provided for in s.170, and under s.171, any ballot paper may, at the request of a scrutineer, be reserved for the determination of the Electoral Commission. The Electoral Commission alone has the power to decide if the ballot paper reserved for its decision can be allowed and admitted or, not be allowed and rejected. The Returning Officer must comply with the mandatory requirement of conducting a recount pursuant to s. 172.

52. One important observation I make is this, had the Returning Officer and the counting officials strictly adhered to the letter of the law on the admission and rejection of ballot papers, the 244 ballot papers in question would have been objected to during scrutiny. However there is no evidence at all as to how these ballot papers were brought into the Counting Centre. There is no evidence of how they came in and how they seemed to have bypassed proper scrutiny and ended up in the petitioner’s tray without any objection by any scrutineer.

53. In my view, these ballot papers should have been referred to the Electoral Commission by virtue of s. 171 because of the suspicious circumstances surrounding the manner in which they gained entry into the Counting Centre without proper scrutiny, notwithstanding that the Court has power to order a recount pursuant to s. 212 (1) (d).

54. I have referred to these relevant provisions of the Organic Law because in my humble opinion, the conduct of counting of the ballot papers, which was under the responsibility and authority of the Returning Officer, John Kalan, contained serious errors and/or omissions.

55. The above statement needs to be qualified. The principal issue relates to the removal of the 244 ballot papers. The pleadings in the petition relate to that issue alone. However, evidence adduced in the trial, especially the testimony of the Returning Officer, has given rise to other issues of errors and omissions. Although the pleadings do not refer to those other issues, I consider that those have been identified in the evidence and therefore the Court cannot ignore them. Again, s.217 of the Organic Law should be invoked here.

56. And I consider that the reason that these issues or facts could not be pleaded was because they were not available to the petitioner, or provided by the second respondent so that the petitioner could plead them in his petition. For instance, the fact that the Returning Officer, John Kalan, was not present at the counting on Saturday, 21 July 2007, only came out in his oral testimony. The fact that a Committee was given the task of investigating the status of the 244 ballot papers also arose in his sworn oral evidence, so as the fact that, it was that Committee, not him, who decided that the 244 ballot papers should be excluded from the petitioner’s count.

57. These facts and others I have not specified in this paragraph but appear in the body of the judgment have given rise to other issues of error and omission by the Returning Officer and the second respondent.

58. The Returning Officer, John Kalan, in the present case was charged with the conduct of the elections in the Telefomin Open Electorate. Contrary to Mr. Mawa’s submissions, the Returning Officer is subject to the direction and control or authority of the Electoral Commission, the second respondent. The Returning Officer is not independent from the Electoral Commission. It is because of the existence of the Electoral Commission that the position of Returning Officer is created pursuant to s.19 (1) of the Organic Law.

59. In my view, the combined effect of s.19 and s.171 clearly implies that the Returning Officer, being subject to the direction and control of the Electoral Commission, must consult the Electoral Commission on any issue he faces or is unable to determine himself.

60. For instance, in my opinion, he should have consulted the Electoral Commission on whether the 244 ballot papers then in question, should be removed or not. With respect to the Returning Officer, he is not bound by the Organic Law to consult any person or committee other than the Electoral Commission in respect of his decision to admit or reject ballot papers. Of course there are provisions in the Organic Law and the Regulation 2007 which authorize a Returning Officer to seek assistance from a committee in respect of issues relating to an election.

61. However, in the present case, I am of the opinion that the Returning Officer fell into error when he consulted the Steering Committee which decided that the 244 ballot papers were to be removed. That Committee is not charged by law to conduct the elections in the Telefomin Open Electorate.

62. By virtue of s.171, the issue of those 244 ballot papers should have been reserved for, and referred to, the Electoral Commission for its determination. A committee has no power under the Organic Law to determine the fate of ballot papers that are suspected of having been unlawfully marked or tampered with, or where they were being disputed.

63. No provision of the Organic Law authorizes any other person or body other than the Returning Officer to conduct an election in an electorate. By the same token, there is no provision in the Organic Law which authorizes a committee to make decisions on any disputed ballot papers.

64. Either the Returning Officer makes the decision on disputed ballot papers or he consults the Electoral Commission which can make that decision. But the Returning Officer is not authorized by law to receive a direction from any person or body other than the Electoral Commission in the exercise of his functions and powers.

65. In the present case, I consider that the Returning Officer’s action in consulting the Steering Committee and accepting its decision to remove the 244 ballot papers amounted to an error of law because the Organic Law does not authorize a Returning Officer to get directions from any person or body.

66. By law, it is the second respondent in this case, who should have issued a direction to the Returning Officer in respect of the status of the 244 ballot papers. However, at the end of the day, it is the Court which would ultimately decide whether or not any ballot papers should be excluded.

67. I am of the view that, had the Returning Officer consulted the second respondent on the issue of the 244 ballot papers, he would have been issued a direction to deal with those ballot papers in question, and any direction issued by the Electoral Commission would have been consistent with its overall supervisory powers under s.19 (1) Organic Law and s. 3 Regulation 2007, therefore lawful.

68. One of the submissions by Mr. William, counsel for the second respondent was that the Returning Officer said there were specimen signatures that the Committee investigating the 244 ballot papers considered in its investigation however, I decline to accept that evidence from the Returning Officer because he was not a member of that Committee which conducted the investigation.

69. It is my view that the best evidence that the second respondent should have produced in Court would have been sworn affidavits, tested in cross examination, or oral testimony from the Presiding Officers, Assistant Presiding Officers and Assistant Returning Officers from Yapsie LLG area where those 244 ballot papers came from. These officials would have either identified and confirmed their authentication of the 244 ballot papers, or disputed the signatures on those ballot papers.

70. But the second respondent failed to call any of those officials and basically relied on the evidence of the Returning Officer, John Kalan, which I have ruled hearsay and therefore inadmissible.

71. I also consider that the second respondent should have adduced evidence from the Presiding Officer of Yapsie LLG, after all he was the official responsible for the election in that area and he should have filed an affidavit so as his Assistant Presiding Officers and Assistant Returning Officers and their evidence would have been that the signatures on the 244 ballot papers did not belong to them. I would have accepted that evidence with no difficulty at all.

72. As it were, there was no evidence from those electoral officials and I am unable to accept the second respondent’s submission on that issue.

73. Another error, which to my mind is relevant, is how the 244 ballot papers were allowed into the Counting Centre, if I accept that they were unlawfully authenticated. Section 153A (1) of the Organic Law gives a discretion to the Returning Officer to exclude from scrutiny any ballot papers which he considered to have been unlawfully marked or the ballot papers had been tampered with.

74. From the evidence, the 244 ballot papers had already been allowed into the Counting Centre and into the petitioner’s tray without any objection by any scrutineer pursuant to ss. 151 and 152. How did that happen? The Returning Officer and the second respondent have failed to explain how those ballot papers got into the petitioner’s tray without proper scrutiny.

75. Furthermore, there is no evidence on whether the 244 ballot papers came into the Counting Centre in a ballot box or several ballot boxes. There is no evidence if there was any objection to the ballot papers. The evidence which I accept is that after the elimination of Candidate No. 10 Mary Tarp Lane, on the Elimination 13, the 244 ballot papers were discovered in the petitioner’s tray. How come they were not detected during scrutiny?

76. The Returning Officer has given no explanation, and in my view, there was an error in allowing these ballot papers into scrutiny, contrary to s.153A (1) and therefore that constituted an error of law.

77. Mr. William’s submission that it would amount to abetting an illegal practice if the 244 votes were allowed or admitted is misconceived, in my view. The fact is that these ballot papers had been admitted into scrutiny and if they were illegal as he claimed, the Returning Officer should not have allowed them in, in the first place. By doing so, he committed an error of law contrary to s.153A (1) of the Organic Law. The Returning Officer would have abetted an illegal practice as he was the second respondent’s official responsible for the counting. Those ballot papers should not have gone past first base and placed in the petitioner’s tray.

78. There are other errors which the petitioner’s counsel, Ms. Copland had submitted in relation to the Electoral Law Regulation 2007, in particular, Sections 85 and 86. I consider that these errors were not pleaded in the petition because the relevant information were not available to the petitioner and as I have adverted to in relation to the evidence of the Returning Officer, John Kalan, the information became available during the trial.

79. It is the evidence of the Returning Officer, John Kalan that the Presiding Officer’s Returns for the Yapsie Local-Level Government area was not available after polling, and even at the trial. The Returning Officer said those Returns were not available. How then could he have accurately determined that the 244 ballot papers were part of unused ballot papers which contained unauthorized signatures from unverified sources?

80. It is his evidence that he did not check those 244 ballot papers against the Presiding Officer’s Returns because there were no returns. Therefore, how certain could he have been when he removed the 244 ballot papers when he did not have the Presiding Officer’s Returns for the Yapsie Local-Level Government area?

81. It is my view that the failure by the Presiding Officer for Yapsie Local-Level Government area in returning his Returns to the Returning Officer breached the lawful requirement of ss.85 and 86 Electoral Law Regulation 2007 and furthermore, those breaches amounted to errors of law.

82. The Returning Officer attempted to offer excuses on logistical issues like transportation etc, however, I do not consider those as a valid reason to avoid errors and omissions. The country through its Parliament had allocated millions of Kina to the Electoral Commission to conduct the 2007 National General Elections therefore there should be no excuse on security, logistics and other aspects of conducting the elections.

83. There were other evidence adduced by Ms. Copland through the Returning Officer which relates to Forms 66A and 66B, Exhibits "A" and "B" respectively. However, I consider that that evidence is immaterial because the issues raised in that evidence were not pleaded in the petition, therefore I do not wish to address them.

84. Having considered the submissions of all the counsels and the evidence of all the witnesses, I am of the view that the evidence of William Bisan should be treated with caution. I do not readily accept all his evidence. David Akis was a competent witness and I was impressed with his evidence, but part of his evidence is in conflict with the evidence of the Returning Officer. In all material aspects of the issue at hand, I accept David Akis’ evidence. On the contrary, most of the evidence of John Kalan is hearsay and I reject most of it.

85. The Court has found that there were errors and/or omissions by the Returning Officer and the Presiding Officers and polling officials. The question is, would those errors and/or omissions likely to affect the result of the election?

86. The Court must reiterate here that the issue in this case is the status of the 244 ballot papers. It is not disputed that the first respondent polled 4,394 votes and was declared elected. It is also not disputed that the petitioner polled 4,346 votes and was the runner-up to the first respondent. Furthermore, it is not disputed that the difference of the votes between the first respondent and the petitioner was only 48 votes.

87. From those uncontested and uncontroverted facts, I find that the 244 ballot papers that were removed from the petitioner’s tray would have likely affected the result of the elections.

88. Having said many things against the Returning Officer, I must say that I do not take anything away from him. He was by law the person charged with the conduct of the elections in the Telefomin Open Electorate. I acknowledge that it is not an easy task to conduct an election in the circumstances of many communities in Papua New Guinea with rough terrain and scattered villages in the mountains and valleys of the country.

89. But in the present case, he alone, not the District Election Management Committee, had the lawful authority to consider and determine whether or not the 244 ballot papers should be excluded. There was no need to consult that Committee because that Committee is not charged with the conduct of the elections under the Organic Law. He should have consulted the second respondent, but did not and that is an omission.

90. I consider that the Returning Officer’s failure to consult the Electoral Commission on whether to admit or reject those 244 ballot papers amounted to both an error and an omission. An error on the basis of my view that the combined effect of s.19 (1) Organic Law and s. 3 Regulation 2007 implies that he should have consulted the Electoral Commission on this issue that he encountered, and an omission, when he failed to consider consulting and getting a direction from the Electoral Commission.

91. As a matter of mathematical calculation therefore, the 244 votes would have affected the result of the election if they were not removed from the petitioner’s count. Had they been added to the petitioner’s tally, his total tally would have been 4, 590 and he would have been declared elected with 196 votes more than the first respondent.

92. Section 218 (1) of the Organic Law provides that an immaterial error should not vitiate the result of the election unless the error or omission would affect the result. The test is whether an error or omission is likely to affect the result of the election.

93. In the present case, I have found that the exclusion of the 244 ballot papers from the petitioner’s tray amounted to both an error and an omission. And I have further found that such error and omission would likely affect the result of the election.

94. However, in my view, this is not a case where the Court should decide that the first respondent was not duly elected and the petitioner should be declared duly elected. The issue is limited to the 244 votes. The petition does not allege the very serious issues of bribery and undue influence (or illegal practices) which would enable the Court to ultimately declare an election null and void in accordance with s. 215.

95. In any event, there is evidence that the 244 ballot papers were not legally authenticated and in my humble opinion, this issue would be best resolved in a recount, not in declaring the election null and void.

96. Because the issue in this petition is a very narrow one involving the correct and lawful status of the 244 ballot papers, I am of the view that a recount of the ballot papers, properly scrutinized and with proper identification of the authentication of the ballot papers, in particular, the 244 ballot papers, by the appropriate election officials would reveal the proper legal status of the 244 ballot papers in dispute therefore would assist the Court in a final determination of this petition.

97. The Court considers that, that course of action has substantial merits and will do real justice in this case.

98. It is therefore my considered opinion that the relief of a recount in pursuance of s. 212 (1) (d) claimed by the petitioner is appropriate and it should be granted in preference over a declaration pursuant to either s. 212 (1) (f), or (g) or (h) which I have earlier adverted to above.

99. For these reasons, it is the judgment of the Court that there be a recount of all ballot papers in the Telefomin Open Electorate election. Accordingly, the Court orders as follows:-

100. However, in the light of the order for a recount, it is necessary to make formal consequential orders and these Orders are:-

must be kept strictly out of bounds to all persons including police officers and Electoral Commission officials after it has been properly secured and welded.

Young & Williams: Lawyer for Petitioner
Paul Mawa Lawyers: Lawyer for First Respondent
Nonggorr & Associates: Lawyer for Second Respondent

National Court of Papua New Guinea

Hoap v Iwei [2008] PGNC 118; N3420 (17 June 2008)