N10844

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 76 OF 2022

WILLIAM GOGL ONGLO
Petitioner

V

MUGUWA DILU
First Respondent

AND:
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Goroka: Kandakasi DCJ
2023: 06th -15th December
2024: 22nd January
05th June

CONSTITUTION – Enforcement of Constitutional right – Section 50, right to vote or stand for public office – Components, casting and allocation of votes to chosen candidate through proper scrutiny – Importance of scrutiny - Repeated breaches by outdated and incomplete common rolls and compromises or lack of proper scrutiny  - Need for appropriate orders for protection and enforcement of – Section 57 of Constitution invoked – Orders for biometric electronic voting system with electronic counting to be introduced in time for use in next election – Pending electronic voting and counting systems closed circuit television (CCTV) video cameras and recording to be used at counting and scrutiny of votes ordered.

ELECTIONS – Biometric voting system – Features and how it works – Save and secure efficient system - Advantages of compared to manual system – Protection against all forms of corruption and much reduced time and costs – Reduce carbon footprint - Increased confidence and trust in integrity of electoral system and democratic system of government 

ELECTIONS - National Elections – Ascertaining results by scrutiny – Importance and purpose of scrutiny – Verify election conducted fairly and impartially by examining results, identify any fraudulent activity, error, irregularities, misconduct or improper conduct, address and rectify them and ensure election outcome truly reflects the will of the voters - Help maintain public trust and confidence in the democratic system of government and elected representatives have the mandate to govern  - Promotes transparency, accountability, reduce chances of corruption, or manipulation and promote ready acceptance of election results as fair transparent and with integrity - Serious compromise of scrutiny –Returning Officer (RO) related to a candidate – RO appointment more counting officials from his related candidates tribe – Extra counting officials without specific tasks threatening and interfering with opposing candidates scrutineers – Physical assault of opposing candidates scrutineers by winning candidate’s scrutineers and counting officials - Loosing candidate’s scrutineers seriously injured and driven out of counting room and scrutiny  – Counting continuing and declaration made without scrutiny – Declaration made without quality and other checks – Large number of votes not properly scrutinized and accounted for – Election outcome affected – Recount ordered - Section 19, 147 – 172 , 217, 212, 218 (1) Organic Law on National and Local-level Government Elections (Organic Law) -  Section 5, 6, 88 of Electoral Laws (National Elections) Regulations 2027 (No. 4 2007).

ELECTIONS – Common roll – Importance and purpose of – Register and maintain accurate list of eligible voters - Uphold the integrity of the electoral process, safeguard the right to vote, and ensure fair and transparent elections – Duty of Electoral Commission to produce and keep it updated – Biometric voting system with electronic voting and counting system considered – Advantages of having such systems – No corruption or human error, prompt, open and fair election results - Section 46A Organic Law – Section 68, 71A, 92 and 93 of Electoral Laws (National Elections) Regulations 2027 (No. 4 2007).

ELECTIONS –Petitions – Matters pleaded – Evidence of matters not strictly pleaded allowed into evidence without objection  – Application of rule in Brown v. Dunn as applied in Maino v. Avei [2000] PNGLR 404 – Court to be guided by s. 217 of the Organic Law – Facts disclosing lack of proper scrutiny and ascertaining of the results and declaration of winner - Breaches of provisions of the Constitution-  Election outcome affected - Petition upheld.

EVIDENCE – Particular evidence – Video recordings – Objection to use of – Source of video – Source not objecting to admission – Application of s. 217 of the Organic Law and decision in William Hagahuno v. Johnson Tuke (2020) SC2018 – Video evidence allowed into evidence and used – Pictures and videos do not lie - Video evidence supporting petitioner’s claims – Ascertainment of results by scrutineer seriously compromised.

EVIDENCE – Lack of direct evidence on matters pleaded – Other evidence not objected to subjected to and cross-examined - Application of s.217 of the Organic Law as interpreted and applied in Hagahuno v. Tuke (supra) and best evidence rule as applied in Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605 – Available evidence considered – Evidence establishing ascertaining result of election seriously compromised – Petition upheld – recount ordered.

PRACTICE & PROCEDURE – Application to adjourn trial of election petition to attend to election related criminal offences against a key witness – Section 107 of the Criminal Code – Intention of – Election petition to proceed ahead of criminal proceeding – Adjournment denied.

PRACTICE & PROCEDURE – Relief on successful petition – Court has wide discretion under s. 212 of Organic Law – Application of s. 217 of the Organic Law - Court has power to grant such relief as the facts dictate including a relief not pleaded.

WITNESS – Credibility of - Contradictory evidence – Important rule in cross-examination – Only ask question to answers are already known – Introduction of affidavit containing contradictory evidence in cross-examination – Witness claiming forced to sign affidavit and disowning content of affidavit – No rebutted by other evidence – No basis to find witness not telling the truth.

Facts

A loosing candidate filed a petition (petitioner) against his loss claim serious compromise of the scrutiny process by the appointment of the returning officer (RO) who was related to the winning candidate (the winner), the RO appointed 200, 30 more than the authorised 170 about 184 of them from his and the winner’s tribe, allowed extra counting officials related to him and the winner into the counting room without any task to perform to roam around, block, interfere, intimidate, threaten, physically attack, seriously injure and drive out from the counting room the petitioners scrutineers. Prior to that, the petitioner’s scrutineers were threatened with death or violence and subjected to repeated intimidation and interference by the winner’s supporters, scrutineers and counting officials, offered in bribery monetary and other benefits, all aimed at getting the petitioners scrutineers out of their roles as scrutineers at the counting. Due to injuries the petitioner’s scrutineers sustained, they did not return to counting room to continue in their roles and requested the RO to give them time to call their candidate to organise replacement scrutineers. The RO rejected their request and the advice of the Provincial Police Commander (PPC) and the Provincial Election Manager (PEM) to suspend counting to allow the petitioner to get his substitute scrutineers into the counting room to continue with scrutiny on his behalf. The RO allowed counting to continue and declared the winner without scrutiny. The winning margin was 4,132 between winner and petitioner. At the trial the petitioner sought to adduce into evidence Commission recorded closed circuit television recording (CCTV) footages, which the winner of the election objected. The Commission did not object. The Court allowed the CCTV footages to be admitted into evidence

Prior to trial of the substantive matter, the winner and the Commission objected to the competency of the petition. After a hearing on that the objections the Court dismissed the objections and ordered a trial and set a date for a commencement of the trial. On the first day of the trial, the Commission applied for an adjournment to enable the RO to attend to criminal proceedings brought against him over the same allegations in the petition, citing s. 107 of the Criminal Code. The petitioner objected to the application. The Court dismissed the application to adjourn and ordered the trial to proceed.

At the conclusion of the trial and submissions of the parties, the Court formed a preliminary view that the conduct of the RO and his appointed counting officials and the Commission breached s. 50 of the Constitution and asked the parties to make submissions whether the Court should invoke the provisions of s. 57 of the Constitution for the protection and enforcement of the right under s.50 of the Constitution in terms of ordering the use of a biometric voting and counting systems and pending the implementation of such a system the use of CCTV video recordings at all countings of votes in future elections.

The winner and the Electoral Commission (Commission) argued, for a dismissal of the proceedings.  In so argued they argued the allegations pleaded in the petition were not strictly proven and cited Delba Biri v. Bill Ninkama [1982] PNGLR 342 and that line of cases. They also argued there was no serious compromising of the scrutiny process because there was nothing wrong with the appointment of the RO and his appointing of the other counting officials and the injured scrutineers were present at the counting. As for allegations of earlier blocking of the petitioner’s scrutineers’ views, threats, intimidation and or interference, they submitted none of that was established. The evidence of the estimated votes was only estimates, unreliable and therefore failed to show the results of the election was affected within the meaning of s. 218 (1) of the Organic Law. The petitioner argued to the contrary.

As for the invitation from the Court, the winner and the Commission argued there was no breach of the right under s. 50 of the Constitution, the suggestion for the use of BVS and CCTV video recording were policy matters. Hence, there was no basis for the Court to invoke s. 57 of the Constitution. The petitioner argued the evidence before the Court established breaches of the s. 50 right and argued for orders for its protection and enforcement under s. 57 in the terms suggested by the Court.

Held:  

1.	The winner and the Commission failed to make a case for adjournment in accordance with the law as enunciated in the Joshua Kalinoe & Ors v. Paul Paraka & Ors (2014) SC1366 at [12] – [13] and the intention and purpose of s. 107 of the Criminal Code was for election petitions to take priority over election related criminal prosecutions, by reason of which the trial of the petition cannot be adjourned pending conclusion of the criminal proceedings. The correctness or otherwise of the criminal proceedings can be separately raised and determined in the criminal proceedings itself: Adopted and applied Eremas Wartoto v. The State (2015) SC1411.

2.	Applying William Hagahuno v. Johnson Tuke (2020) 2018 and s.217 of the Organic Law and allowing itself to be “guided by the substantial merits and good conscience of the case without regard to legal forms or technicalities” and the fact that the Commission who produced the CCTV footage was not opposed to their admission and that they were directly relevant, the objection as to their admission was overruled and the video recordings were admitted into evidence.

3.	The decision in Delba Biri v. Bill Ninkama (supra) and its line of cases have been expressly overruled and replaced by the 5-member Supreme Court decision in William Hagahuno v. Johnson Tuke (supra) and is therefore not good law and does not apply.

4.	Having failed to observe the rule in Browne v. Dunn (1893) 6 ER 67 (H.L.) as applied by the Supreme Court in its decision in Maino v. Avei [2000] PNGLR 404 and s. 217 of the Organic Law and the decision in William Hagahuno v. Johnson Tuke (supra) the winner and the Commission were at no liberty to argue on the basis of no foundation in the pleadings in the petition against evidence they failed to object, allowed to be admitted into evidence and cross-examined witness on and the Court was at liberty to consider the evidence.

5.	All witnesses of the petitioner were accepted as credible and truthful witnesses giving truthful evidence because amongst others, their evidence was consistent with the CCTV footages which do not lie as well as and logic and usual happenings at counting centres in the country.

6.	Based on the evidence accepted by the Court inclusive of CCTV footages the Court found:
(1)	The RO with his own admission was related to the winner as an uncle in the “Melanesian way” and they both come from the same Narku tribe which gave the winner and advantage against all the other candidates from the outset of the counting of the ballot papers;
(2)	The RO allowed for a compromise of impartiality, fairness and transparency at the counting in favour of the winner by amongst others by:
(a)	Appointing more counting officials from his and the winners Narku tribe;
(b)	Allowing extra counting officials including some from the Narku tribe into the counting room with no particular task but prevent the petitioner’s scrutineers for raising objections or issues concerning the conduct of the counting and allocation of votes to the correct candidate or tray by interfering, threatening, intimidating and later team up with the winner’s scrutineers to physically attack, seriously injure and remove the petitioner’s scrutineers from the counting room and further scrutiny;
(c)	Failed to stop the actions of the extra counting officials including the kicking of the petitioner’s ballot box interferences, threats and intimidation levelled against the petitioner’s scrutineers;
(d)	Failed to entertain and resolves objections or issues raised by the petitioner’s scrutineers against illegal or incorrect movement of ballot papers to the wrong candidate or trays and thereby allow removal the petitioner’s marked ballot papers into the exhaust ballot box or stuffing them into the winner’s tray to decrease the number of votes the petitioner received and increase votes received by the winner;
(e)	Refused to adhere to the PPC and PEC as well as the petitioner’s scrutineers request for suspension of counting and give time and opportunity to petitioner to send in his replacement scrutineers and decided to continue with counting without scrutiny by the only other person in the race, the petitioner; and
(f)	Continued with counting without scrutiny and proceeded to declare the winner as winner of the election without quality and other checks for accuracy and aspects for a proper declaration.

7.	The winner’s supporters including the Narku tribesmen counting officials presented serious security threats to the petitioner’s scrutineers and subjected the petitioner’s scrutineers to threats of violence and intimidation as well as offers of bribery all with the aim of getting them out of the counting room to ensure the winner was declared the winner with the petitioner’s scrutineers not scrutinizing the counting.

8.	The above facts established a clear lack of ascertaining the results of the election by proper scrutiny and a serious breach of s. 147 and the other related provisions of the Organic Law which is necessary for proper verification and confirmation that the election was conducted fairly and impartially by examining the results, identify any fraudulent activity, error, irregularities, misconduct or improper conduct, address and rectify them and ensure the election outcome truly reflects the will of the voters and thereby help maintain public trust and confidence in the democratic system of government where elected representatives who have the mandate by the majority of the people govern.  The scrutiny process also helps promote transparency, accountability and reduce chances of corruption, or manipulation and thereby promote ready acceptance of election results the loosing candidates and the people of the electorate and thereby avoid election petitions.

9.	The breach of the proper scrutiny process seriously affected the election outcome in that more than about 4,816 at the lowest and more than 7,366 votes at the highest were not properly scrutinized and allocated to the petitioner who lost by a margin of 4,132 to the winner, which meant that number of voters rights under s. 50 of the Constitution to have their votes properly ascertained, counted and allocated to their chosen candidates through an impartial, fair and transparent process was also seriously breached.

10.	The right under s.50 of the Constitution which is a right to either to stand as a candidate in a National General Election or vote for a candidate of the voter’s choice is a special voting age citizens only right exercisable once every 5 years, through which the voters engage in the political process and have a say in the governance of our nation. An exercise of that right is complete and full when the voter casts his or her vote for his preferred candidate after which it is secure and transported to the relevant counting centre at which it is properly ascertained and allocated to the chosen candidate.

11.	Reading the provisions of s. 212 (1) (3) and (4) together with s.218 (1) as well as the provisions of s.217 of the Organic Law as interpreted and applied by the decisions of the Supreme Court in William Hagahuno v. Johnson Tuke (supra) and Yagama v. Yama (2013) SC1244, the Court has a wide discretion under s. 212 (1) (3) and (4) to grant any of the reliefs thereunder provided, as the circumstances of the case may warrant, whether specifically prayed for or not.

12.	Reading the provisions of s. 212 (1) (3) and (4) together with s.218 (1) as well as the provisions of s.217 of the Organic Law as interpreted and applied by the decisions of the Supreme Court in William Hagahuno v. Johnson Tuke (supra) and Yagama v. Yama (supra), appropriate reliefs in the particular circumstances of the case were to uphold the petition, declare the declaration of the winner, as the winner of the election null and void and order a recount of the votes. 

13.	Having found the citizens only right under s.50 of the Constitution being breach each election due to lack of proper scrutiny which is also connected to outdated and or incomplete common rolls the Court invoked s.57 of the Constitution and ordered:
(1)	the Commission and the National Government implement provision already made under the Electoral Laws (National Elections) Regulation 2007 (No. 4 of 2007) for to introduce a biometric voting system in terms of an electronic voter identification and electronic counting system in time for the next general election; and 
(2)	pending the full implementation of an electronic voter identification and electronic counting system, the Commission make a decision for the use of CCTV video recording and implement the same in all counting areas until full integrity in the scrutiny process is achieved.

Cases Cited:
Papua New Guinean Cases

William Gogl Onglo v. Muguwa Dilu & Electoral Commission (2023) N10595
Joshua Kalinoe v. Paul Paraka Lawyers & Ors (2014) SC1366
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Eremas Wartoto v.The State (2015)  SC1411
Agonia v. Karo [1992] PNGLR 463
Delba Biri v. Bill Ninkama [1982] PNGLR 342
William Hagahuno v. Johnson Tuke (2020) SC2018
Francis Koimanrea and Anor. v. The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002)
Ludger Mond v. Jeffrey Nape (2003) N2318
Peter Wararu Waranaka v. Richard Maru (2018) N7346
Michael Kuma v. Digicel PNG Ltd (2019) SC1851
Jimson Sauk v. Don Polye (2004) SC769
Saonu v. Dade (2004) SC763
Danaya v. Wobiro (2013) SC1292
Maino v Avei & Electoral Commission of PNG (2000) SC633
Maino v. Avei [2000] PNGLR 404
Bernard v. Duban (2016) N6299
Re Rights of Person Arrested or Detained [1977] PNGLR 362
SCR No 4 of 1980; Somare, Re [1981] PNGLR 265
Gamu v. State (2023) SC2368
Warisan v. Arore (2015) SC1418
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Kapi v. Electoral Commissioner of Papua New Guinea (2003) N2327
Embel v. Kopaol (2003) N2460
Toap Hoap v. Peter Welawe Iwei (2008) N3420
Wingti v. Rawali (2008) N3286
Kuli v. Apamia (2013) N5275
Yagama v. Yama (2013) SC1244
 Commander of Beon Correction Institution v. Mal (2022) SC2186
The State v. Tamate (2021) SC2132
Kaiulo, The Electoral Commissioner of Papua New Guinea v James Mobie Genaboro and Ron Ganarafo (1998) SC567
Karani v. Silupa (2004) N2517
Luke Alfred Manase v. Don Pomb Polye (2009) N3718

Overseas Cases Cited:

Browne v. Dunn (1893) 6 ER 67 (H.L.)

Counsel: 

Mr E. Isaac, for the Petitioner 
Mr. J. Wohuinangu, for the First Respondent
Mr. R. Williams, for the Second Respondent

DECISION ON THE PETITION
	
05th June 2024

1.	KANDAKASI DCJ: Following a dismissal of the respondents’ objections to competency of the petition, the trial on the petition commenced on 06 December 2023, and concluded with submissions made on 15 December 2023. Thereafter, the Court asked for and received further submissions on 22 January 2024, on the enforcement of s.50 of the Constitution under s.57 also, of the Constitution.

A.	PRELIMINARY – APPLICATION TO ADJOURN

2.	At the commencement of the trial, 1st Respondent, Mr Muguwa Dilu (Dilu) with the support of the 2nd Respondent, the Electoral Commission (Commission) applied under s.212(1)(a) of the Organic Law on National and Local-Level Government Elections (Organic Law) and s.107 of the Criminal Code for an adjournment. The purpose of the adjournment was to enable the Commission’s key witness, Mr. Michael Gand Palma, the Returning Officer (RO) for the Kundiawa-Gembogl Open Seat Electorate (KGO Seat), to apply for a dismissal of criminal charges against him, based on the Petitioner, Mr William Gogl Onglo’s (Onglo) complaint in the same terms as the grounds of this petition. Learned Counsel for the Commission, also submitted, a dismissal of the criminal proceedings will give the RO freedom to come to Court and testify for the Commission without the fear of incriminating himself in the pending criminal charges. Onglo objected to the application. 

3.	The RO had earlier appeared before the Kundiawa District Court for mention.  Neither on that occasion, nor at any other time, did the RO raise before the District Court any issue, as to him being a witness in this petition and asked for a dismissal of the charges or stay pending a final hearing and conclusion of the petition.  The issue was therefore, raised for the first time in this proceeding.  Learned Counsels for the parties failed to assist the Court with any submissions on the principles governing adjournments and how they should be applied in this case. 

4.	I found there is no prescription either in s.212(1)(a) or any other provision in the Organic Law that prescribes how and or when the power of adjournment should be exercised. Proceeding without any assistance from Counsels, I adopted and applied the relevant principles on adjournment as enunciated by the Supreme Court in Joshua Kalinoe v. Paul Paraka Lawyers & Ors (2014) SC1366 at [12]. Applying those principles, I refused the application for adjournment and ordered the trial to proceed.

5.	There was an additional reason for the decision to dismiss the application.  That was centred on s.107 of the Criminal Code, which reads:

“(1) A prosecution for an offence against any of the preceding provisions of this Division must be begun–
(a) within one year after the offence is committed; or
(b) if it is committed with respect to a parliamentary election with respect to which a petition is tried by the National Court, within three months after the report of the National Court is made,
whichever period last expires, but in any event it must be begun within two years after the offence is committed.
(2) For the purposes of Subsection (1), the service or execution of process on or against the alleged offender is the commencement of the prosecution, unless the service or execution is prevented by some act on his part, in which case the issue of the process is the commencement of the proceeding.”
6.	What is obvious from s.107(1)(b) is this, election related criminal charges can only be prosecuted after the conclusion of any related election petition. This is understandable. If an election petition alleging any election related criminal offence is presented, that petition must be first heard and determined given that the life of the relevant Parliament is 5 years. There is no similar time limit for the prosecution of a criminal offence. Related to that in my respectful view, is the fact that, any person elected to Parliament through a criminal enterprise should not benefit from such enterprise. That ties in well with the accepted principle of law that no person can be allowed to gain from his or her own criminal, illegal, improper, unfair and questionable conduct: See, PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126 and Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605.

7.	In view of the clear provisions of s.107 of the Criminal Code, the criminal proceedings need to be delayed or stayed.  The petition needed to proceed unimpeded by those pending criminal proceedings.  It was open to the Commission and its key witness, the RO, to appear before the District Court and apply for a stay until this petition is finally determined. That, they failed to do. They also failed to provide any reasonable explanation as to why they could not do that in the relevant District Court, prior to the commencement of the trial in this petition. The law in respect of the issue at hand is well settled.  No civil proceeding can be employed to interfere with any criminal process or proceedings. Instead, any issue a party may have with any such proceeding, needs to use the relevant criminal proceeding itself to raise the issues: See Eremas Wartoto v The State (2015) SC1411.

B.	SUBSTANTIVE PETITION 

1.	Relevant background 

8.	Both Onglo and Dilu were candidates in the 2022 National General Elections (2022NGE) for the KGO Seat. Onglo was the former holder of the seat and was a former Minister for Police immediately before the 2022NGE. He lost that seat to Dilu in the 2022NGE. He polled 21, 158 votes while Dilu polled 25, 290, giving a winning margin of 4, 132 votes. The absolute majority, fifty percent plus one was 23, 194 +1. The relevant declaration was made on 06 August 2022, at the Dickson’s Oval Counting Centre, Kundiawa. 

2.	The Petition and its basis

9.	Onglo did not accept that outcome. He thus filed this petition. In my decision on the objections to competency of the petition, I summarised the petition in the following terms:

“In summary he alleges that, through collusion and compromises between certain counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent, the scrutiny and counting of votes was compromised.  He alleges in that regard that the counting was conducted without scrutiny or proper scrutiny, which was orchestrated to affect the result of the elections amongst others by:

(a)	Removing the Petitioner’s marked ballot papers into the exhausted ballot box or stuffing them into the 1st Respondent’s box to decrease the number of votes the Petitioner received; and

(b)	Stuffing up the 1st Respondent’s ballot box with ballot papers not marked for him but other candidates and the Petitioner to increase the 1st Respondent’s votes; and

(c)	To achieve the election outcome and to facilitate the foregoing, the Petitioner’ scrutineers were assaulted and removed from the scrutiny and counting of votes resulting in the counting of votes without scrutiny; and

(d)	The 2nd Respondent allowed the 1st Respondent to have 7 scrutineers with the Petitioner having none at the final eliminations and eventual declaration of the results; and 

(e)	attempts to stop counting by the Provincial Election Manager and the Provincial Police Commander were ignored.”

3.	Issues for determination

10.	One of the factual matters alleged and missing in the above summation is an allegation by Onglo that, compromising of the proper scrutiny and declaration of the results was possible by an increased number of counting officials beyond that which was required being allowed to overcrowd the counting room.  Another relevant and related important question if the earlier questions are answered in the affirmative is, are the alleged actions or inaction of the Commission and supporters of Dilu immaterial and did not affect the outcome of the election for the KGO Seat?   Hence, the list of questions to be answered or resolved are: 

(1)	Was the scrutiny and counting for the KGO Seat compromised by increased number of counting officials crowding the counting room and collusion between certain counting officials led by the RO, who were related to Dilu, and his supporters?

(2)	Was the counting of votes conducted without proper scrutiny which was orchestrated to affect the result of the elections amongst others by:

(a)	Removing Onglo’s marked ballot papers into the exhausted ballot box or stuffing them into Dilu’s box to decrease the number of votes Onglo received.

(b)	Stuffing up Dilu’s ballot box with ballot papers not marked for him but other candidates and Onglo to increase Dilu’s votes.

(c)	Assaulting Onglo’s scrutineers and removing them from the scrutiny and continue a counting of votes without scrutiny to ensure Dilu was declared the winner of the election. 

(d)	The Commission allow Dilu to have 7 scrutineers with the Petitioner having none at the final eliminations and eventual declaration of the results.

(e) 	attempts to stop counting by the Provincial Election Manager (PEM) and the Provincial Police Commander (PPC) were ignored.

(3)	If the above questions are answered in the affirmative, are the alleged actions or inactions of the Commission and supporters of Dilu immaterial such that they did not affect the outcome of the election for the KGO Seat?

4.	Answers to questions 2(d) and (e)	

11.	Before getting into the contested facts, I note there is not much of an issue over questions (2) (d) and (e).  I will have those questions disposed of first in the following way:

(d)	Question: Did the Commission allow Dilu to have 7 scrutineers with the Petitioner having none at the final eliminations and eventual declaration of the results?

Answer:  None of the witnesses called by Onglo gave any evidence covering this question. I thus find this part of the allegation in the petition has not been established.  Accordingly, I dismiss this part of the petition.

(e) 	Question: Were there attempts to stop counting by the Provincial PEM and the PPC and they were ignored?

Answer:  The answer to this question is a “Yes”.  All evidence called by all parties, including the RO’s own admission establish that, the RO decided to proceed with the counting even without any scrutiny by the only other candidate still in the race. The evidence also establishes that, that was despite the PEM and the PPC advising the RO to suspend the counting to allow for Onglo to send in his substitute scrutineers. That followed a serious assaulting of Onglo’s scrutineers who were not able to return to their roles due to the injuries and trauma they sustained at the hands of Dilu’s scrutineers with the assistance of counting officials as will be demonstrated later.   

5.	Evidence and facts

12.	Each of the rest of the questions stated above present both factual and legal questions.  I will deal firstly with the factual aspects of each of the questions and then get to the legal questions.

(5)(a)	 Uncontested facts

13.	From affidavits filed by the parties and the submissions of the parties, several of the facts are not in dispute. These are firstly, the Electoral Commission is mandated by the Organic Law to run elections. The Commission appoints, polling and other officials to discharge its responsibilities.  That includes returning officers and their assistants for each of the electorates. In the present case, a Mr. Michael Gand Palma was appointed as the RO for the KGO Seat. Four others, namely Mr. Samuel Kagl, Rose Dama, Peter Mai and Alois Rokoa, were appointed as Assistant Returning Officers (AROs).

14.	Secondly, Onglo’s scrutineers were Kama Gand and John Kaima.  For Dilu were Auta Paul Muguwa and Michael Parak.

15.	Thirdly, the counting and scrutiny of votes commenced on 24 July 2022. It concluded at around 3pm on 06 August 2022. The completion of primary counts took place on 29 July 2022.  After quality checks, the total allowable votes casted and the total scored by each candidate were as per the table below:

Box No	Candidate Names	Score Primary Count	
10	Johnny Mek Teine	423	
11	Killen Peter Paglau	86	
12	Iwaks Kawage	337	
13	David K Apa	1050	
14	John Umba Michael	1614	
15	Peter Kuman Jnr	54	
16	William Golg Onglo	13134	
17	Ignatius Kilage Nime	3293	
18	Ruben Thimothy Kagl	66	
19	Tony Gagma Mondo	1750	
20	Stanley Enn Alphonse	7141	
21	Paul Kawage Kiak	96	
22	Joe Rutz Komba	42	
23	Peter Kawage Wawe	08	
24	Mukuwa Dilu	11779	
25	Paul Umba	650	
26	Tobias Kulang	11045	
27	Sonny Waieng	311	
28	Joe Kuman Lamb	241	
29	Mathew Gaglua	1642	
30	Joe Captain Aure	184	
31	Peter Kama	6587	
32	Samuel Kupo	3446	
33	Joe Kua Towa	3291	
			
**	Total formal ballot papers	68090	
**	Total informal ballot papers	1477	
**	Total ballot papers	59575	
**	Total ballot papers issued	70045	
**	Total ballot papers missing	470	
**	Total allowable votes	69575	

16.	The top four candidates were Onglo, Dilu, Tobias Kulang and Stanley Enn Alphonse. At the top of the list was Onglo, with 13,134 votes.  That was 1,255 votes ahead of Dilu who was on second place. No candidate reached the absolute majority. The counting, therefore, went into eliminations. 

17.	Fourthly, the eliminations commenced at 1:00pm on 2 August 2022. After the 19th elimination of candidate Samuel Kupo, the progressive tally for the remaining top 5 candidates were: 
Box No	Candidate Names	Score Primary Count	
16	William Golg Onglo	17,540	
20	Stanley Enn Alphonse	9,936	
24	Mukuwa Dilu	15,121	
26	Tobias Kulang	14,307	
31	Peter Kama	8,792	

18.	Onglo maintained the lead with 17,540 votes, with a difference of 2, 419 votes from Dilu who was at 15,121 votes. 

19.	Finally, the eliminations and counting of the second and third preferences of the excluded candidates continued onto 03 - 06 August 2022.  On 06 August 2022, the declaration of Dilu as the winner of the election was made. What happened from the 19th elimination is the subject of the contest in this petition. 

(5)(b)	 Contested facts – Onglo’s evidence 

20.	I turn now to the contested matters which require more consideration.  Starting with Onglo’s side, I note, in a bid to establish his claims, Onglo tendered into evidence, several documentary evidence. The table below lists the documents tendered with the exhibit marks given:
	Document name	Exhibit mark	
1	Writ for the Kundiawa Open Electorate 	 “A”	
2	Form 66A1 for Mt William 	“B1”	
3	Form 66A1 for Waiye LLG	“B2”	
4	Form 66A1 for the Nilkande LLG 	“B3”	
5	Form 66A1 for Kundiawa Urban LLG	“B4”	
6.	Form 66A2 - Summary of Primary Count	“C”	
7	Form 66B – Exclusions and progressive tally	“D”	
8	Counting Officials Master List	“E”	

21.	Then by order of the Court, Onglo admitted into evidence several segments of closed-circuit television footages or recordings (“CCTV footages”). These footages were from recordings conducted by the Commission at the counting. They were marked as exhibit “F”.  The table below lists the relevant segments:

Segment No.	Description	Day and date	
1	D03-20220804102803	04 August 2022	
2	D03-20220805101204  	05 August 2022	
3	D03-20220806105803	06 August 2022	
4	D03-20220806115040	06 August 2022	
5	D03-20220806124318	06 August 2022	
6	D03-20220806133555	06 August 2022	
7	D03-20220806142832	06 August 2022	

22.	Additionally, the affidavits in the following table with the indicated exhibit marks were admitted into evidence for Onglo:

Affidavit of	Date filed	Exhibit mark	
1	William Gogl Onglo	28/10/2022	“G”	
2	Theresa Kagl	28/10/2022	“H”	
3	Lucy Kua Siune	28/10/2022	“I”	
4	Kama Gande	28/10/20222	“J”	
5	John Kende Kaima	28/10/2022	“K”	
6	Thomas Digine	28/10/2022	“L”	
7	Kulame Poka	28/10/2022	“M”	

(5)(c)	Respondents evidence

23.	The respondents also tendered in evidence in response and in support of their positions against Onglo’s claims. Dilu called 3 witnesses and tendered the following 5 affidavits:

Affidavits of	Date file	Exhibit mark	

1	Martin Thomas	22/12/2022	“R1 (1)”	
2	Anna Siwi	22/12/2022	“R1 (2)”	
3	Nancy Ogio	22/12/2022	“R1 (3)”	
4	Kulame Poka	22/12/20222	“R1 (4)”	
5	Theresa Kagl	22/12/2022	“R1 (5)”	

24.	The Commission called 2 witnesses and tendered the documents listed in the below table:
Document	Date file	Exhibit mark	

1	Affidavit of Michael Gande Palma	16/01/2023	“R2 (1)”	
2	Sample of Ballot papers (book form containing 10 bundles i.e 500 ballots	22/12/2022	“R2 (2)”	
3	Affidavit of Samuel P, Kagle	16/01/2023	“R2 (3)”	

(5)(d)	Contest facts 

25.	Turning to the relevant evidence, I note, they come from the witnesses the parties called. Called for or by Onglo were:

(a)	William Gogl Onglo
(b)	Theresa Kagl;
(c)	Lucy Kua Siune; 
(d)	Kama Gande;
(e)	John Kende Kaima;
(f)	Thomas Digine; and
(g)	Kulame Poka.

(i)	William Gogl Onglo

26.	Onglo, went into evidence first for his case.  His evidence covers security around the counting center. Most specifically all entry points were blocked by Dilu’s supporters making it impossible for his scrutineers to freely enter and exit the counting center.  He speaks of getting his scrutineers in through the help of the police.  His evidence was later confirmed by his scrutineers Kama Gande and John Kaima who were later called to give evidence in support of his case.   

27.	Dilu did not take the stand on this point or other parts of the evidence of the witnesses Onglo called. Neither the Commission nor Dilu called any witnesses to specifically address and rebut this part of the evidence. None of the other witnesses called by Dilu and the Commission gave any evidence on this point.  In the circumstances, I find the security situation at the counting center from the outside and more so the free entry of Onglo’s scrutineers was severely curtailed as described by Onglo and his scrutineers.  

(ii)	Theresa Kagl

28.	The second witness called by Onglo was Theresa Kagl.  Her evidence in chief is in her affidavit, Exhibit “H”. Relevantly, she deposes to:

(1)	Being appointed as a counting official for the KGO Seat in the 2022NGE for the counting which took place at the Dickson Oval in Kundiawa.

(2)	Being present in the counting room throughout the counting period from 24 July 2022 to final declaration on 06 August 2022 and was able to witness, recall and testify as to what happened in the counting room on the relevant dates.

(3)	Arriving at the counting centre around 8:00am on 06 August 2022 for counting that day. The RO and the AROs, counted two groups of 6 women to be at 2 sorting and distribution tables and 4 women were tasked to stay at the trays table to bundle ballot papers after they are called. The 4 women at the trays table were Kiak Julie from Kond Village, who was looking after tray 24, Kehl Thomas Ambai, Christine Ilai and another lady who works with Kundiawa-Gembogl District Administration. 

(4)	There being 3 women at the exhaust box, namely Nancy Manjuk, Ingrid Sine, Chris Wenambo and Bengi Nolai.

(5)	Being one of 6 women tasked to look after the sorting and distribution table 1.

(6)	Witnessing the final elimination of candidate Tobias Kulung and a distribution of his ballot papers. That took place around 10:30am by which time about 15,000 ballot papers needed to be sorted out and distributed.

(7)	Seeing ballot papers being sorted out into 3 groups, number 16 for Onglo, 24 for Dilu and exhaust box for exhausted ballots.

(8)	Seeing a counting official, namely Sandy Michael, pick up 2 bundles of ballot papers meant for Onglo and taking them to the exhaust tray. There, with the assistance of another counting official Chris Wenambo, removed a rubber band that was holding them. At that moment, one of Onglo’s scrutineers, after seeing what had happened tried to raise a complaint but he got attacked and a fight broke out between Dilu and Onglo’s scrutineers. Some counting officials joined in and attacked Onglo’s scrutineers.

(9)	The estimated ballot papers in the 2 bundles to be around 3,0000 to 5,000 ballot papers. This estimate was based on her experience as a sorter at the counting.

(10)	Leaving the counting room and stayed outside for her own safety when the fight broke out.  

29.	During examination in chief, she was asked to explain paragraph 11 of her Affidavit.  That paragraph deposes to ballots marked for Onglo being taken by Sandy Michael and placed in the exhaust box. She explained, the RO issued an unusual direction on the relevant day for the ballots to be sorted into 3 groups on the sorting table. Following that decision, trays or boxes were created, the first one for Onglo, the other for Dilu and the last one for the exhaust ballots. Given the unusual direction and having seen the three different boxes, she was able to see and tell Sandy Michael taking the ballot papers marked for Onglo and placing them in the exhaust tray.

30.	Through cross-examination of her by Dilu’s learned counsel, Mr. Wohuinangu, another affidavit sworn by this witness Exhibit “R1(5)” got introduced. That affidavit amongst others sought to retract from the witness’ first affidavit, Exhibit “H”. Upon being questioned, she testified to the statement or evidence therein contained not coming from her but pre-prepared by someone else and she was forced to sign under threat. Hence, she asked for the second affidavit and its contents to be disregarded as those were not her testimony. This part of her evidence was not challenged by Dilu and the Commission. Hence, it remains unchallenged. 

31.	Additionally, certain segments of the CCTV footage were played back to the witness.  She confirmed the matters she deposed to in her first affidavit. She also identified Siwi Kawage in the CCTV roaming around in the counting room aimlessly and kicking a ballot box. She further gave evidence about the fight in which Onglo’s Scrutineers, Kama Gande and John Kaima were seriously assaulted. 

32.	Furthermore, she was able to identify Sandy Michael as the person wearing black clothes and in hood walking into the sorting table and picking up ballot papers marked for Onglo and placing them into the exhaust tray. In her affidavit, she deposed to the ballot papers estimated to be between 3,000 to 5,000. In cross-examination, Dilu’s learned Counsel, Mr. Wohuinangu tried to create doubt in the estimated number of ballots by suggesting 500 to 1,000. But the witness said, the ballot papers she was sorting out on the sorting table at the relevant time were about 3,000 to 5,000 for Onglo and that is the number of ballot papers she was talking about.

33.	The Commission’s learned Counsel, Mr. Williams does not expressly make any submission as to the credibility of Theresa Kagl as a witness. But Dilu’s learned Counsel, submits there is competing evidence, which must be resolved in favour of the respondents. He then submits, Theresa Kagl’s evidence, is unreliable and should not be relied on because:

(1)	She gave an inconsistent statement saying that she was lying. Her allegation of being threatened was extracted only in cross-examination and no evidence in chief was led on this.

(2)	In any event, her evidence is unbelievable if one considers the uncontested evidence. Sandy Michael was the runner, took it to the caller and then Nancy Ogio recount and verified before placing it in the exhaust box.

34.	I find the two reasons given above cannot be sustained.  On the first ground of the issue of threat is a matter that was set in motion by learned counsel’s own cross-examination of the witness. Following on from that, there are three problems with this submission.  Firstly, the witness did not say she was lying in any respect or part of her testimony. Secondly, counsel did not put the suggestion of lying by the witness to the witness in counsel’s cross-examination of the witness. Thirdly, counsel with respect ignored one of the important tenets of cross-examination, which is, never to ask a witness any question to which counsel does not already know the answer. In other words, counsel should only ask questions to which counsel already knows the answer.  Hence, if counsel went by that principle, he knew the answer the witness gave in terms of being threatened and her disowning the content of the affidavit, Exhibit “R1 (5)” prior to him asking the question.  With such knowledge, it was counsel and his client’s obligation to then call other witnesses or evidence rebutting Theresa’s testimony as to the allegation of being threatened and disowning the contents of Exhibit “R2 (5)”.  This they failed.  Without any such evidence, the submission by counsel is without merit and is dismissed

35.	The second ground comes with a suggestion that it is an uncontested fact that “Sandy Michael was the runner, took it to the caller and then Nancy Ogio recounted and verified before placing it in the exhaust box.”  This is a seriously contested fact. Theresa gave her evidence in the terms she stated.  Her evidence was later corroborated by Lucy and Kulame and the CCTV footage. 

36.	To rebut Theresa’s evidence, the respondents needed to call Siwi Kawage, Sandy Michael and Chris Wenambo. They also needed to call those who supposedly obtained a statement that constituted or may have constituted exhibit “R1(5)”. None of these people were called to respond to and rebut Theresa’s testimony. Thus, her evidence stands unchallenged by any direct evidence from any of the people implicated in her testimony. The only people that had something to say about what happened in the counting room were Anna Siwi and Nancy Ogio.  I will touch on their evidence once I get to considering the respondents’ evidence.

(iii)	Lucy Kua Siune

37.	Lucy, who was called after Theresia gave evidence in terms similar to Theresia’s. She thus corroborates Theresia’s evidence.  In her affidavit evidence in chief, Exhibit “I” she deposes to noticing during elimination 21, ballot papers clearly marked for Onglo being placed in tray 24 in bundles of 10s, 100s, and 1,000s.  This saw about 1,000 ballot papers marked for Onglo placed in Dilu’s tray. On seeing these, she, and another counting official namely Christine Ilai and Kayln Ambai discussed this. On noticing the ladies talking, a male counting official namely a Gabby Yalgol swore at them in the Kuman language saying something to the effect, “women with big vaginas must stop talking”. Other counting officials on hearing Gabby joined in and threatened them and told them not to say or do anything. Given the threats they received, she and her colleagues decided against doing anything about those votes. After the ballot papers were dealt with in that way, Dilu took over the lead from Onglo after the 21st elimination. 

38.	The next day, 06 August 2022, when counting resumed, the witness speaks of certain happenings that were not right. At paragraphs 19 and 20 of her affidavit, Exhibit “I”, she deposes to a counting official with the score board asked her to bundle ballot papers marked for number 16, which was Onglo’s, into bundles of 50 so he could pick them up and throw them into the toilet.  She did not do as directed and left the ballot papers mixed up.  

39.	Further, she testified to seeing most of the counting officials were siding with Dilu and were doing certain things that were not right.  One such happening was a Philip Makis taking a bundle of ballot papers numbering about 100 – 200, from the sorting table and throwing them into the exhaust box or tray.  The ballots papers comprised of some exhausted, some live for tray 24 (Dilu) and some for tray (16) Onglo.  She then speaks of the serious assault of Onglo’s scrutineers and more ballot papers, estimated to be about 300 – 400 live ballot papers being thrown into the exhaust box by a Waim Palma, without following the normal process of waiting for the caller to call and then the ballots papers go to the relevant or correct tray.

40.	Finally, she deposes to the final declaration being made after these incidents at 3:30pm. Soon after this, some counting official announced that the member elect will say thank you to the officials for their hard work and invited the officials to Mt Wilhelm Hotel.  They went along and they were given a total of K15,000.00 by Dilu. Lucy deposes to receiving K200.00 out of that. 

41.	The questions in cross-examination of this witness by the respondents were centered around her memory and accuracy in the estimated number of ballot papers. When asked during examination in chief as to how she knew about the number of ballot papers and their movement, she said she assisted Dilu’s tray keeper in bundling the ballot papers or votes for the purposes of counting and posting on the tally sheets. Given that, she was able to tell of the possible number of ballot papers being deliberately placed in the wrong tray. Cross-examination of this witness did not go further to challenge other parts of the witness’ evidence as outlined above, for example poor recollection and naming of the various actors or fabricating her evidence. The questions in fact asked in cross-examination failed to create any doubt both in the witness’ memory and the number of ballot papers involved. Additionally, the CCTV footage corroborates Lucy’s testimony as was the case with Theresa’s testimony.  

42.	In submissions, the Commission’s learned Counsel, Mr. Williams makes no submissions against the credibility of Lucy as a witness.  Instead, the learned Counsel’s submissions center around what is pleaded in the petition and Lucy’s evidence failing to strictly prove what is pleaded. I will get to that when considering the question of, what does the evidence accepted by the Court prove or establish.

43.	On the other hand, Dilu’s learned counsel, Mr. Wohuinangu submits there is competing evidence which must be resolved in favour of the respondents. Then specifically concerning Lucy’s evidence, he submits her evidence is unreliable and should therefore not be relied on because she gave inconsistent evidence. The inconsistency is in respect of the number of ballot papers allegedly moved by Sandy Michael.  In her affidavit, she deposed to about 3,000 to 5,000 being picked up by Sany Michael and placed in the exhaust tray or box. In cross-examination, she said she saw 500 to 1000 ballot papers being moved. In re-examination she clarified that she saw 500 to 1000 ballot papers moved whilst 3,000 to 5,000 bundles remained. These were live ballot papers that belonged to Onglo, Dilu and exhaust ballot papers.

44.	There are two serious problems with this submission.  Firstly, the numbers of ballot papers are only estimates.  One would expect that the Commission or the RO should be able to produce accurate figures. It is within their duty to ensure the ballot papers per ballot box as they are opened and counted are recorded with the number going to each of the boxes, in this case it was, Onglo, Dilu and exhaust.  When there is an issue as in this case, such a record could then be produced to help settle the issue.  That did not happen here.  There is no evidence that Lucy was the responsible officer.  The best she could do therefore was to give estimates and that is what she did.   When that is the case, there is bound to be a difference of views.  Ones guess should be as good as they others.  Consequently, the suggested inconsistency does not go far enough to form the bases or at all to suggest that the witness is not a credible witness.

45.	Secondly, it was necessary for the Commission or Dilu to call Christine Ilai, Kayln Ambai, Sandy Michael, or Gabby Yalgol to rebut Lucy’s evidence. The respondents did not call any of these people to rebut and displace Lucy’s evidence.  Hence, her evidence stands essentially unchallenged and unrebutted by any evidence from any of the relevant people. The only people that had something to say about what happened in the counting room were Anna Siwi and Nancy Ogio. We will deal with their evidence once we get to considering the respondents’ evidence.

(iv)	Kama Gand

46.	Onglo’s next witness was Kama Gand. He was one of Onglo’s 2 scrutineers at the counting. Kama’s Affidavit was tendered into evidence as Exhibit “J”.  He deposes amongst others to the following:

(1)	Serious security risks, threats and intimidation levelled against him and his co-scrutineer from Dilu’s supporters, both from within the counting room by majority of the counting officials from 03 to 06 August 2022, as well as outside the counting room and outside the counting Centre by Dilu’s supporters. This part of the evidence elaborates and corroborates Onglo’s own evidence on the security situation.

(2)	His co-scrutineer, John Kaima not turning up to continue with his duties as a scrutineer on 04 August 2022 because of threats he had received. 

(3)	During the counting, he saw extra counting officials namely, Siwi Kawage, Benny, Bomai, Philip Makis, Kimbe Nime (Big Boy), Michael Bex and Paul Durkwa and others allowed into the counting room. They hung around in the counting room with no specific task to perform. These persons continuously told him, he was from the Waiye LLG and he should not be strict and instead take it easy and let counting proceed as a Waiye young man (referring to Dilu) is about to win. This continued until both him, and John were assaulted on 06 August 2022.

(4)	The threats and intimidation were levelled at him because he was constantly taking issue with many repeated instances of placing of ballot papers clearly marked for Onglo either into the exhaust or Dilu’s tray. 

(5)	From the actions of the counting officials and the RO and the AROs failing to do anything he got the clear impression that the officials were already compromised in favour of Dilu.  He, therefore, requested at one point for the RO to remove some of the counting officials, but he said or did nothing.

(6)	After the elimination of candidate Stanley Enn Alphones on 05 August 2022, and when Dilu took the lead, about 60 to 70% of the counting officials cheered, shook their hands and were giving high fives and went into celebratory singing around the counting room. There were similar celebrations outside the counting centre in Kundiawa township. Whilst in that celebration mood, Auta Paul Muguwa, one of Dilu’s scrutineers demanded the RO to declare Dilu as duly elected, despite counting not being concluded and the required absolute majority requirement not being reached. 

(7)	Dilu’s supporters were armed and were posing a serious security risk for the witness and his co-scrutineer. They left the counting room at the end of that day’s counting under escort from their own supporters.  As they were leaving, Dilu’s supporters told them “it’s our turn to win and we will win so don’t come to the counting centre tomorrow”. 

(8)	The next day, 06 August 2022, he received a call from an unknown caller who identified himself as Dilu and he also worked it out to be Dilu, tried to persuade him not to get to the counting room and offered to fly the witness to Port Moresby the following week. He discloses both his and that of Dilu’s mobile telephone numbers.  

(9)	Dilu’s supporters made it difficult for the witness and his co-scrutineer to enter the counting room.  On Onglo’s request a police vehicle came to their help and got them into the counting centre on the last day of counting, 06 August 2022. 

(10)	When the counting commenced at 10:30am there were about 14,760 votes collected by Tobias Kulang that needed to be distributed between Onglo and Dilu. 

(11)	As counting commenced, he heard about an estimated 2,500 to 3,000 ballot papers being already called. Many of those were for tray 16, which was Onglo’s. Those ballots filled up one tray already and was quarter way into the second one. He estimated the total for both trays to be around 1,500 to 2,000.  As counting continued, Onglo continued to collect more votes.

(12)	On seeing more votes going to Onglo, Auta Paul Muguwa, one of Dilu’s Scrutineers approached him and said, “you leave the ballot papers to candidate 24 (Dilu) and walk out to the gate and get your K50,000.00”. He then asked if his brother (Dilu) called him (the witness) earlier and the witness said yes.

(13)	Then suddenly, Siwi Kawage kicked Onglo’s ballot box and soon thereafter, Muguwa swung a punch at the witness and another punch followed. Then the rest of the officials attacked both the witness and his co-scrutineer John Kaima and drove them out of the counting room. The witness and his co-scrutineer sustained serious injuries. The injuries Kama sustained were a swollen face with general facial hematoma (bleeding) and sustained other injuries namely:
(1)	Severe trismus (unable to open his mouth wide);
(2)	Mobility of the upper lateral incisor;
(3) 	Fractured mandible through Lt. angle (38); and
(4)	Swollen lower Lt. mandible (Parasymphysis)  

(14)	After the fight and despite the serious injuries and the trauma and pain the witness and his co-scrutineer were in, the RO asked them to return to the counting room when clearly, the scrutineers were in no position physically to resume duties. They responded with the obvious, that they were in no position to resume their duties as scrutineers and asked for time to inform their candidate (Onglo) so he can arrange for replacement scrutineers. The RO refused the request and decided to continue with the counting and ultimately make the declaration without any scrutiny by Onglo through his duly appointed scrutineers due to no fault of the scrutineers or Onglo. 

(15)	After the declaration the supporters and relatives of Dilu tried to say sorry to the witness on 10, 19 and 25 August 2022 and tried to make peace, but he refused saying the matter was already in Court. 

(16)	The foregoing actions and inactions of the supporters of Dilu which included a majority of the counting officials including the RO, caused the witness to get the sense that the whole set up at the counting center was aimed at ensuring Dilu was declared the winner of the election by a deliberate failure to fairly count and account for each of the ballot papers, ascertain the winner of the election fairly and openly and have the fair and clear winner declared. 

47.	The CCTV footage corroborates Kama’s evidence.  When the relevant footage was shown to the witness, he was able to identify the persons he named in his affidavit, namely for example, Siwi Kawage.  The CCTV footage also showed, the kicking of Onglo’s ballot box, several people with no specific tasks roaming around in the counting room and inside the counting room, the movement of ballot papers into the exhaust box, elsewhere and ultimately the attack of the witness and his co-scrutineer.  

48.	The respondents called only the RO and one of his ARO, Samuel P Kagl. But no other witness was called to rebut all or any of Kama’s evidence.  The respondents needed to call in addition to the RO and the ARO, at least the persons that were named and or implicated in Kama’s evidence, like Auta Paul Mugawa and Siwi Kawage. For reasons only known to the respondents, they called none of these people to take the stand.  Dilu should have also taken the stand, but he did not for the purpose of amongst others, rebutting the evidence on the issue of security threats coming from his supporters and evidence suggesting he called the witness and offering to fly him to Port Moresby.

49.	Ultimately, Kama’s evidence stands unchallenged or rebutted.  

50.	In their respective submissions, each of the respondents’, learned Counsels do not make any submissions against the credibility of Kama as a witness and why his evidence should be rejected. Their submissions only point out Kama’s evidence not covering allegations in the petition of:

(1)	Kama seeing Anna Siwi purportedly move ballot papers to tray 24 from tray 16 on 05 August 2022; and 

(2)	A Paul Dilu informed Kama of the K50,000 to collect and not a Paul Auta Mugawa as suggested in Kama’s evidence.

51.	If the witness did not cover the matters pleaded, it means either of two things.  Either that, the petitioner decided to abandon that part of his pleading or that the witness simply forgot to cover that part of the pleading. Without clarification seeking questions put to the witness, nothing further can be made of matters not covered in a witness’ testimony.   Where a witness gives evidence that contradicts what is pleaded, again, the duty rests on counsel to have these clarified by appropriate questioning of the witness when the witness is in the witness box.  This was not done.  Hence, the Court will go by the evidence the witness has given.  As to what use can be made of the evidence, is quite a separate matter. I will get to that later. 

52.	Hence, in the absence of any submission to the contrary, the points made by the respondents’ learned Counsel do not reflect adversely against Kama being a truthful witness. Besides, I observed his demeanor in the witness box. He gave me a clear impression of being a truthful and honest witness.  For these reasons, I find him to be a truthful and credible witness and accept his evidence.

(v)	John Gende Kaima

53.	Onglo next called John Gende Kaima, his second scrutineer.  John’s testimony corroborates Kama’s evidence in most respects and adds the following:

(1)	At the commencement of the eliminations on 02 August 2022, there were too many counting officials allowed into the counting room. He tried to get the RO to remove some of the extra officials and failed to receive any response from the RO.

(2)	He did however receive a response form Auta Paul Muguwa, one of Dilu’s scrutineer’s with words to the effect in pidgin “larim mi kisim now, taim blo yu pinis yah” translated into English as “let me get it this time, your time is finished”.  Another of the counting officials, Gabby Yalgol added “yu kaikai inap, yu go mipla bai kisim”, translated as “you ate enough, you go we will get it”.  A third counting official whose name he could not recall tried to hit him with a piece of timber.

(3)	Around this time, he saw and heard most of the other counting officials talking and he realized the counting officials together with the RO and AROs were already siding with Dilu. 

(4)	At the close of counting for that day around 4:00pm and as he was coming out, someone amongst Dilu’s supporters who were outside the gate called his name and said, his (the witness) neck will be chopped if he returned to the counting center the next day.

(5)	The next day on 04 August 2022, he wanted to go and continue with his duty as scrutineer for Onglo but he saw the main bus stop and the roads leading to the counting center were all blocked off by Dilu’s supporters. At that point he recalled the threat he received the day before and decided against going to the counting center. 

(6)	On 05 August 2022, he woke up early and at about 6:00am, he took a bush track that leads to the Kundiawa General Hospital and from there, he entered the counting center.

(7)	After eliminations, 20 and 21 and on two different occasions, he stopped counting official Ben Goiye from putting ballot papers meant for Onglo into Dilu’s tray. 

(8)	The act of placing Onglo’s ballot papers into Dilu’s tray was repeated and each time this happened, he tried to stop and correct it, he got shouted at by Dilu’s scrutineers and Kama Gand told him to stay quiet and not to disturb.

(9)	The final elimination was then set for the next day, 06 August 2022 and as he and his co-scrutineer stepped out of the counting center, Dilu’s supporters told them not to return to the counting center the next day.  

(10)	On 06 August 2022, all road and bush track access routes to the counting center were blocked off by Dilu’s supporters. Two men, Peter Tu and James Kombokun who were sent to check the bush track the witness had used the previous day confirmed the blockage. Also, Peter Tu was shot at by a sling shot and sustained injuries. Dilu’s supporters did not stop at that, they chased the two men away with bush knives wielded toward them.

(11)	He and his co-scrutineer called their candidate Onglo, who managed to organize police to take them into the counting center.  

(12)	He then restates what Kama Gand said in his testimony as to the happenings in the counting room during the final elimination through to final declaration and adds, a Kimbe Nime, a counting official attacking him in the fight that led to the serious injuries he and his co-scrutineer sustained. According to medical evidence attached to his affidavit he sustained “grossly swollen” facial injuries “from trauma with bilateral peri-orbital (eye) swelling obstructing vision”. He also sustained “blood clot injuries to his nose”.  

54.	When asked in examination, cross-examination, and re-examination, about the possible reasons for the fight, he said he and Kama were assaulted because it was clear that most of Tobias Kulang’s second and third preference votes would go to his candidate and not Dilu. He went on to say Ongolo would have been declared winner if the counting proceeded in accordance with the law and in a fair and transparent manner. When asked further in cross-examination as to how he could tell that would have happened, he said it was not hard. He then explained, when the caller calls the marked ballots, he said he and the other scrutineers did not only see the first preferences but also note the second and third preferences and make notes of the same.

55.	Kimbe Nime, Siwi Kawage and the other people, named in John’s testimony should have been called to give their version of the evidence if John was not telling the truth. That the respondents failed to do. Hence, John’s evidence remains substantially unchallenged and not rebutted. 

56.	Dilu made no submissions against John’s evidence. Similarly, The Commission made no submissions specifically on whether John’s evidence should be rejected or not.  Learned counsel for the Commission, however, made the following submissions:

(1)	The allegation at paragraph 14 of the petition of John Kaima sending text message to the Returning Officer is not supported by the petitioner’s own witnesses. They admit that no mobile phones were allowed into the counting Centre.

(2)	Paragraph 17 of the petition stated that John Kaima did not go into counting on 04 August at all. John Kaima gave evidence that he was not in the counting on 04 August (see paragraph 13 of his affidavit (“Exhibit J”). Paragraph 21 of the petition, concerning the 04 August stated that “at around 10.30am John Kaima, complained to the RO and the ARO Rose Dama but they just heard him…”.  The allegations surrounding John Kaima on the 04 August have not been proven.

(3)	Scrutineer John Kaima even gave evidence that the Returning Officer and the whole counting centre were waiting for them to arrive in the morning before any counting could resume. When they arrived, everyone clapped and cheered for them and counting commenced thereafter at around 10.00am. This evidence attests to a Returning Officer who was extending time to allow for their presence at counting and was not partisan at all.

57.	The first point made in these submissions fails to note that in John’s affidavit evidence he specifically says he texted the RO. I accept that other witnesses spoke of mobile phones not being allowed into the counting room. It was incumbent upon Counsel for the Commission to cross-examine the witness and call evidence to rebut this part of the witness’ testimony.  The RO was called as a witness. The issue was not even put to the RO and the RO in any case did not specifically address the issue.  Given this, it is now not open for Counsel to submit as he has.  The first point is therefore dismissed.

58.	 As to the second point of pleadings alleging John being at the counting on 04 August 2022 and complaining as alleged is contrary to what the witness said in his testimony. No clarification question was put to the witness. There is no challenge on the credibility and correctness of the witness’ testimony on this point. I will thus go by the witness’ testimony.

59.	Turning to the third point, Counsel does not point to whether the purported evidence from John is in his affidavit, or in answer to a question in chief, cross-examination or re-examination. I also do not recall any specific question about the alleged waiting and cheering on the arrival of the Onglo scrutineers.  If, however, evidence was given in those terms and I missed it, it makes no difference because, firstly they needed to be in the counting room for the counting to continue. Secondly, what matters is what happened to the scrutineers after the commencement of the last day of counting, when they were seriously assaulted and driven out of the counting room. Their unrebutted evidence is, given the serious injuries they sustained and being traumatized by a mob inclusive of counting officials, they were in no position to resume duties and as such, they did not. 

(vi)	Thomas Digine

60.	Called next for Onglo after John was Thomas Digine. This witness was one of the counting officials as a runner during the elimination process conducted from 04 to 06 August 2022. His evidence in chief is his affidavit admitted into evidence as exhibit “L”.   In that affidavit, he deposes to:

(1)	More counting officials being allowed into the counting room on 06 August 2022 with others allowed to hang around outside.

(2)	As did the earlier witnesses and consistent with those witnesses’ accounts, speaks of the setup of the counting room, Onglo collecting more ballot papers or votes from the commencement of the counting for that day with 2 of his trays filled and with more ballot papers being called for Onglo.

(3)	As counting continued and as Onglo continued to collect more votes, he could sense the counting officials including the RO and the 4 AROs and some scrutineers getting anxious as they had already sided with Dilu. 

(4)	The fight between Dilu and Onglo’s scrutineers which was joined in by some of the counting officials who also attacked Onglo’s scrutineers resulted in serious bodily injuries to them and were eventually driven out of the counting room. 

(5)	The fight went on for about 3 to 5 minutes.  Within that time, some of the other counting officials, hurriedly went to the exhaust tray and the sorting table, took ballot papers from there and added those ballots papers to Dilu’s tray, making them to fill up three trays from only a single tray a moment earlier that was only quarter way full prior to the fight.

(6)	His above evidence would be confirmed or supported by CCTV footage as he was aware of video recording of the counting process.

(7)	Based on what he said above and what he saw, he formed the view that the fighting was a pre-planned action put into action in the way things played out in the counting room.

(8)	Strengthening his view was him witnessing a failure by the RO to take any step toward taking charge of the situation, secure the ballot papers from being moved and stop the serious assaulting of Onglo’s scrutineers. Instead, the RO only stood at the exhaust tray chatting with a lady while about a few thousand ballot papers were passing from the exhaust box under his nose to Dilu’s tray.  

61.	The CCTV footage corroborates Thomas’s testimony. Nothing was asked in cross-examination that created any doubt or inconsistency in this witness’ own testimony and the CCTV footage and or the rest of Onglo’s witnesses.  Neither learned Counsel for the respondents made any submissions against the credibility or an acceptance of Thomas’ testimony. The Court finds the witness credible and accepts his evidence in its entirety. 

(vii)	Kulame Poka

62.	Kulame Poka was the final witness called by Onglo. This witness was also a counting official as a runner. His evidence in chief is his Affidavit, admitted into evidence as Exhibit “M”.  In addition to the evidence already admitted, this witness deposes to:

(1)	Noticing after the eliminations of candidates Peter Kama and Stanley Enn Alphones, about 150 – 200 ballot papers marked 29 for Mathew Gegua (an eliminated candidate) on try 20 for candidate Alphonse were moved to tray 24 for Dilu.

(2)	Seeing the RO on 3 occasions personally take a large number of ballot papers marked 29 for eliminated candidate Mathew Gegua to tray 24 for Dilu.

(3)	Prior to the attack on Onglo’s Scrutineers, seeing a counting official Sandy Michael on two separate occasions take a total of about 2,000 to 3,000 ballot papers marked 16 for Onglo, straight to the exhaust box instead of handing them over to him to put in Onglo’s tray.

(4)	Seeing the fighting of Onglo’s scrutineers creating a distraction and allowed for many more ballot papers from exhaust box to being taken out and placed in Dilu’s tray resulting in a quick filling up of 3 trays compared to only one tray that was fill only quarter way prior to the fight. 

(5)	The RO did not wait for substitute scrutineers for Onglo, defied request of the PPC and the PEM and proceeded with the counting. 

(6)	Counting was done quickly with a lot of ballot papers moved to the exhaust box with the winner declared between 2:30 and 3:00pm.

63.	In cross-examination, Dilu’s learned Counsel introduced the witness to another affidavit deposed to by him.  That was Exhibit “R 1 (4)”.  In that affidavit, the witness purports to retract or deny the truthfulness of what is in his earlier affidavit, Exhibit “M”.  The witness disowned Exhibit “R1(4)” and asked the Court not to believe the matters set out therein.  He said he had neither seen the document before, nor was it prepared on his instructions, or a statement given by him.  Instead, it was a document pre-prepared by someone for him which he was forced to sign after he was kidnapped and taken to Jiwaka province against his will. 

64.	None of the persons the witness named as his kidnappers were called to give evidence to rebut all or any of his claims of being kidnapped and forced to sign the affidavit.  The same goes for Sandy Michael who the witness implicated as a person who was illegally moving ballot papers into the wrong trays or boxes.  The other person that is implicated in this witness’s evidence is the RO. He was also identified and implicated in the other witnesses’ evidence.  He was called. The RO’s evidence will be considered when considering the respondents evidence.  

65.	The Commission makes no submissions against Kulame as a witness and his testimony.  However, the learned Counsel for Dilu, Mr. Wohuinangu submits, against any acceptance of Kulame’s evidence because:

(1)	Kulame gave inconsistent statements and insisted in cross-examination that he was abducted. However, this was not put to him in examination in chief nor clarified in re-examination. To that extent, it cannot be relied on as evidence of anything.

(2)	He gave contradictory evidence in that he did not know where he was at the counting center.

(3)	[omitting repetitions] Clearly Kulame’s evidence is unreliable and should be rejected as evidence of Sandy Michael. In any event, he was a runner and would not know what happened. He accepted this proposition in cross-examination and was not clarified in re-examination.

(4)	The uncontested evidence is that the cause of the fight between the scrutineers was because of the number 29 looking like 24 and vice versa. This is a normal scrutineer business. This evidence was supported by Kulame Poka.

66.	I will deal firstly with the first point.  This argument is like the one raised against Onglo’s first witness, Theresa Kagl.  I repeat what I said there. The issue of the second affidavit of Kulame and his claim of being abducted or kidnapped by some known and some unknown persons are matters that came out in learned Counsel’s own leading cross-examination of the witness. Following on from that, there are two problems with this submission. Firstly, Counsel did not put any further questions to the witness on his claims either for him to retract or clarify. Hence, what the witness said stands accepted. Secondly, Counsel with respect ignored one of the important tenets of cross-examination. I repeat what I said on that point in respect of Theresa’s evidence and dismiss this part of learned counsel for Dilu’s submissions.
  
67.	As for the second point, I consider this issue will need to be considered in the totality of the witnesses’ testimony and the key issues in the case.  I will do that when considering all the evidence and the answers to the relevant important questions. 

68.	Turning to the third and final point, I note the issue of the cause of the fighting of the Onglo scrutineers which resulted in serious injuries to them and them being taken out of their duties as scrutineers are contested matters.  Counsel has not pointed to any evidence that establishes this fact without contest or beyond argument. Instead, it is a contested matter in respect of which Kulame testifies in support of.

69.	In short, the submissions made for and on behalf of Dilu are flawed and they fail to provide any foundation to find against Kulame as a credible and truthful witness.  I also observed this witness’ demeanor and performance in the witness box and got the clear impression that this witness was a witness of truth. In these circumstances, I find and accept Kulame with his evidence as credible and truthful.

(5) (e)	Respondents case

70.	We now turn to the respondents’ case. Dilu and the Commission called several witnesses in a bid to rebut Onglo’s evidence.  Called for Dilu were Thomas Martin, Anna Siwi and Nancy Ogio, while the RO, Mr. Michael Gand Palma and Samuel P Kagl were called by the Commission.  We go into a consideration of each of these witnesses ‘evidence, starting with Thomas Martin’s.

(i)	Thomas Martin

71.	Thomas was losing candidate, Tobias Kulung’s scrutineer.  His candidate got eliminated last on 06 August 2022. This witness was not in attendance at the counting room on 06 August 2022 when the distribution of Kulung’s votes took place. He was thus in no position to testify, and he has not given any evidence as to what transpired on the relevant day. 

72.	His evidence in chief is his affidavit Exhibit “R1(1)”. At paragraph 9 and 10 of his affidavits, he gives his reasons for not being present in the following terms:

“Around 6:00pm on 15 August 2022, the counting was suspended to enable the final elimination to take place the next day, Saturday 6 August 2022. I requested for the suspension, because my candidate’s box, will decide the winner between candidates Dilu and Ouguglo. I can recall that lead candidate was Dilu and in the Second Place, was candidate on Ouguglo was about 3000 plus votes. As my village is located at Gembogl in Mt. Wilhelm Rural. (Midnand) LLG, I felt unsafe to travel up and down to Kundiawa town because Messrs Dilu and Guguglo are from Waiye and Niglkande LLG respectively. Other scrutineers and I will travel through their villages and strong holds to access Kundiawa town. 

10.	Because of the above reason, I in consultation with my candidate, Mr. Kulung decided that I and my colleague scrutineers for Mr. Kulung will not attend the scrutiny on 06 August 2022.”
 
73.	The witness denies his nonattendance at the counting center was due to threats levelled against him by Dilu’s supporters as alleged in paragraph 46 of the petition. The rest of his evidence touches on the set up of the counting room and all proceeding well in a transparent manner. He also says no scrutineers’ views of each of the ballot papers that were called and sent to their respective trays were blocked. There were no complaints from anyone of the scrutineers, especially from the scrutineers of Peter Kama and Stanley Enn Alphones who were earlier eliminated. 

74.	I do not find, this witnesses testimony credible. It is normal for issues to be raised at almost all counting rooms in all national elections.  No election has ever been returned without issues raised in the counting rooms and such issues either getting resolved there or failing that, brought to the Court of disputed returns. This witness paints a picture of a perfect conduct of the counting until the elimination of his candidate. This is to be contrasted with the evidence given by Onglo’s witnesses which speak for example, of more counting officials allowed into the counting room, some of whom were without any specific task and were allowed to roam around in and around the counting room, illegal movement of votes to wrong trays and issues raised against those. These kinds of eventualities and others make counting of ballot papers usually a problematic matter in almost all elections in PNG. Accepting this witness’s evidence will mean the counting for the KGO Seat was one that was fair, open, transparent and accepted by all candidates and therefore Onglo has come to court against an exceptional and PNG first proper election outcome. Unfortunately, the reality is the opposite other evidence I decided to accept establish. I therefore, find this witness to be not credible and therefore reject his evidence.

(ii)	Anna Siwi

75.	Dilu’s second witness was Anna Siwi. She did not give any evidence directly contradicting any of Onglo’s witnesses’ evidence on the issue of the increased number of counting officials and crowding of the counting room.  But she did depose generally in her affidavit, Exhibit “R1 (2)” as to the setup of the counting room, sorting table and trays for each of the candidates.  She says this was in accordance with the Commission’s standard setup design or model.  Given the setup, she says there was no opportunity to block the scrutineers’ views or moving ballot papers into the wrong trays.  She also deposes to the process employed to count and accounting for of the votes.
 
76.	Further, Anna deposes to:

(1)	Counting officials working in shifts. She does not say if Lucy and Theresa attended partially or throughout the whole counting period.

(2)	Being under strict instructions to ensure the counting took place fairly and transparently. But she gives no evidence of such instructions being in fact followed and was the case from start to final count and declaration.

(3)	Counting officials were not allowed to talk amongst themselves. She does not say whether this instruction was strictly observed.

(4)	A possible explanation as to how it was not possible for her and others to move ballot papers from one tray to another without drawing a complaint from one of the scrutineers.

(5)	A denial of the allegation of the matters pleaded in paragraph 37 of the petition which alleges she and other counting officials cheering on Dilu taking the lead after elimination of candidate Stanley Enn Alphonse and gives an estimate of about 4,465 ballot papers posted on the score board and of that about 1,000 to 1,500 would be ballot papers marked 16 for Onglo but were mistakenly or deliberately bundled with ballot papers marked 24.

77.	Like Martin Thomas, Anna paints a picture of a perfect conduct of the counting through to the final declaration. I repeat my observations and what I said in respect of that suggestion by Martin Thomas, and again by Anna in her testimony.  Additionally, on this point I note that since Thomas was not at the counting room on 06 August 2022 and therefore did not witness the illegal happenings of that day, he may be entitled to the views he held.  Anna was however, present on 06 August 2022 according to her evidence in chief.  She could not paint the same picture of a perfect counting process that was conducted transparently, fairly and with integrity, without properly accounting for the serious attack and injuries inflicted upon the Onglo scrutineers and counting continuing without scrutiny by Onglo’s scrutineers. When these are factored in, her evidence gets displaced.

78.	Additionally, Anna’s demeanor in the witness box gave me the clear impression of a witness who was not prepared to tell the truth.  She impressed upon me as a witness prone to changing her testimony and prepared to lie until the CCTV footage was shown to her and she found she could not easily go against what was revealed in the footage. An obvious example of that is in her affidavit, Exhibit “R1 (2)” at paragraph 26, where she deposes to “all allegations are false and not true as the counting for the Kundiawa Gembogl Electorate was done in accordance with standard practice and procedure.”  This clearly ignores the true position presented by the CCTV footage and the photographic evidence of the Onglo scrutineers being seriously assaulted and both rendered incapable of continuing in their roles as scrutineers and yet counting was allowed to proceed without scrutiny by any Onglo scrutineers. This was a serious incident that seriously affected the counting. Despite that, Anna makes no mention of this incident in her affidavit and her evidence in chief. These were abnormal and could have been easily picked up by this witness.

79.	Furthermore, Anna in her affidavit at paragraph:

(1)	20 says, she was keeping the tray of Onglo on 06 August 2022 but later changed her story saying that was a mistake made by her lawyers. She said she was not there on 06 August 2022. 

(2)	At paragraphs 11, 12,13 and 14, she says she was not part of the group who conducted the primary count. But during cross-examination she said she was in the counting room from the first day of counting to the final day when the declaration of the outcome of the election was made.

80.	For these reasons, I find Anna is not a truthful and credible witness. Her evidence contains half-truths designed to hide the truth of what really happened in the counting room on the relevant dates, including the serious assault of the Onglo scrutineers on 06 August 2022 as confirm by the CCTV footage and the Onglo scrutineers’ photographic evidence depicting the injuries they sustained. Accordingly, I also reject Anna’s testimony per her affidavit and her oral testimony in court in so far as they give a different version to the one being told by the CCTV footage, the photographic evidence and the other evidence I have already decided to accept. 

(iii)	Nancy Ogio 

81.	After Anna, Dilu called Nancy Ogio. She too was a counting official from 02 to 06 August 2022. She was the keeper of the exhaust box.  I do not find this witness as a witness of the truth for 6 reasons, and therefore, also reject her evidence. The first reason is, in her attempt at trying to give the same impression as did Thomas Martin and Anna Siwi as to the counting on the relevant dates for the KGO Seat.  I repeat what I observed and said about this part of their evidence, especially that of Anna since Thomas was not present in the counting room on 06 August 2022. Without the witness properly accounting for the serious attack and injuries inflicted upon the Onglo scrutineers, and the counting allowed to continue without scrutiny by Onglo’s scrutineers due to no fault of theirs, this witness’ attempt at painting of a perfect picture of proper counting that was transparent, fair, open and with integrity does not hold any water.

82.	Secondly, her demeanor in the witness box gave me the clear impression of a witness that was evasive, not prepared to change her evidence even when the CCTV footage was played back to her. 

83.	Thirdly, in paragraph 7 (e) of her Affidavit, Exhibit “R1(3)” she refers to paragraph 48 in the petition and denies ever seeing Sandy Michael moving any ballot papers marked for Onglo into the exhaust tray or box.  At the same time, she says, the total of 5,000 ballot papers alleged is too big and she could have easily seen it, but she says she did not.  Onglo’s witnesses testified to such a number of ballot papers being moved to the exhaust box, meaning they were able to see but not her. Also, Sandy Michael was identified in the CCTV footage when the relevant part of the footage was played back to other witnesses and being the one that was moving the ballot papers.

84.	Fourthly, the CCTV footage contradicts Nancy’s evidence. Despite being shown the relevant segment of the CCTV footage, she maintained her version of her evidence. I repeat, photographs or videos do not lie.  The only matter that is usually open for those captured in a photo or a video or witnesses to what is captured to add is for them to explain what is happening or who is doing what if that is not clear. The CCTV footage revealed ballot papers being moved by counting officials while the serious assault on Onglo’s scrutineers was taking place and all attention was on the fight. Nancy did not offer any explanation that displaces the suggestions from the CCTV footage and photographs of the injuries the Onglo scrutineers sustained and his witnesses’ explanations. 

85.	Fifthly, at paragraph 7 (i) of her affidavit she states: “There was a confrontation or skirmish by scrutineers’ zone but that was at their own section and the security quickly brought the situation under control. It did not affect the accounting section where the ballot papers were sorted and distributed. Those sections, including her section, were restricted. For any unauthorized person to go into those areas.”  In her oral testimony, she described this as a minor incident.  This statement again clearly ignores the true position presented by the CCTV footage and the photographic evidence of Onglo’s scrutineers being seriously assaulted and both rendered incapable of continuing in their roles as scrutineers and yet counting was allowed to proceed without scrutiny of the process by Onglo’s scrutineers. Security did not quickly intervene to prevent the serious assaults and driving out of the Onglo’s scrutineers. Further, the CCTV footage reveal ballot papers being moved by counting officials while the serious assault on Onglo’s scrutineers was taking place and all attention was on the fight. There is no evidence from this witness or anyone else of anyone, including the RO or any of the ARO’s stepping in quickly to prevent any moving of ballot papers. 

86.	Finally, Nancy states at paragraph 7 (j) of her affidavit: “In the end before the declaration, the Exhaust and live ballot papers for Tobias Kulung were recounted and balanced before the actual declaration was made.”  Interestingly, she is the only person talking about this.  The RO and the ARO, Samuel P Kagl who were in Charge of the counting, say nothing about this.  If Nancy is correct, it would have taken the process to the next day because of more than 15,000 plus ballot papers were to be checked. Additionally, none of the respondents’ witnesses say anything about this happening. 

(iv)	Michael Gand Palma

87.	Michael Gand Palma, the RO, was the next witness called for the respondents.  His evidence in chief is his affidavit, exhibit “R2 (1)”.  He denies the whole of the allegations in the petition. 

88.	Michael confirms his appointment as the RO and his appointment of the counting officials for the KGO Seat.  Next, he outlines his experience with running elections and what he did for the setup of the counting center, the period it took for the counting from the primary counts to the eliminations and final declaration.  Based on the way the counting room was set up, he denies the allegations of the scrutineers’ views being blocked and illegal or incorrect moving of live ballot papers from one candidate’s tray to the other or the exhaust tray. 

89.	The above part of the RO’s evidence fails to note the relevant part of Onglo’s allegation in paragraphs 12 to 13. These pleads name counting officials Benny Bomai, Siwi Kawage, Philip Makis, Kimbe Nime (also known as Big Boy), Jacinta (whose second name is unknown), Michael Bex, Paul Durkwa and others whose names are not known, blocking the views of his scrutineers.  It is not a general allegation of a crowd generally doing the blocking. The pleadings at paragraph 13 after naming these persons in paragraph 12 makes this clear in the following terms:

“Those counting officials were involved in blocking the Petitioner’s scrutineer’s view of the sorting table and were making a lot of noise and distracting the scrutineers from careful inspection of what was going on at the sorting table and therefore the Petitioner’s scrutineers could not see the ballot papers at the sorting table.”

90.	These allegations are effectively repeated in paragraphs 18, 20, 21, 24, 27, 28, 30 and 46 naming the same persons as the persons blocking the Onglo scrutineers.  

91.	For the number of counting officials, he was authorized to appoint, the RO says he was allowed 170, whom he scheduled on shifts.  However, the actual number he appointed is 200 according to Exhibit “E”, the complete name of the counting officials.  That was 30 more officials than the authorized number. Of that 200, according to the RO, at least 50 counting officials were maintained, at any one given time.  This he says was necessary to speed up the counting and declare a winner without compromising integrity, fairness, and transparency.  

92.	He goes on to say, given the need to speed up the counting he appointed counting officials from within Kundiawa Urban and the nearby tribes of Kamaneku, Enduga, and Narku. In cross-examination he admitted to both him and Dilu coming from the same tribe, Narku. Under further cross-examination, he admitted to being an uncle to Dilu in the “Melanesian way”.  This is an admission of paragraph 25 of the pleadings in the petition. 

93.	In a bid to show only a minority of the counting officials came from the Narku tribe, the RO lists 19 officials in paragraph 26 of his affidavit. That is 31 officials short, given his own evidence of maintaining at the counting center at any one point in time at least 50 officials.  Also, he spoke of the counting officials working on shifts. He produced no evidence in the form of copies of each of the shifts with the names of the officials scheduled for each of the shifts. Similarly, he produced no list of each shift in terms like the list he provides in paragraph 26 of his affidavit. Further, he did not produce a list of all the 200 people he had appointed with their respective tribal names or physical addresses disclosed. 

94.	Of the 19 listed at paragraph 26 of his affidavit, the RO confirms Kimbe Nime, Michael Bex and Paul Durkwa as coming from the Narku tribe. These persons were identified by Onglo’s witnesses, John Kaima and Kama Gande as extra counting officials allowed into the counting room with no task to perform by anyone of them with Kimbe Nime identified as one of the counting officials that supported Dilu’s scrutineers to assault the Onglo scrutineers.  In view of no disclosure of the remaining 184 counting officials’ tribal affiliations, I find the RO has failed to achieve his objective of trying to demonstrate that the majority of the counting officials he appointed were not from his and Dilu’s, Narku tribe.  This leaves open the suggestion that a majority of the counting officials were from his and Dilu’s, Narku tribe.

95.	The witness then deposes to a dispute occurring at about 1:30pm.  That he says was between, the scrutineers of Dilu and Onglo.  It happened only in the scrutineers’ area outside the main counting room.  He formed the view that the dispute did not affect the counting, so he decided to allow for the counting to continue. Yet he says he suspended the counting for 20 minutes to consult the Provincial Election Manager. He does not depose to what was the Election Manager’s advice and goes on to say on seeing Onglo’s scrutineers near the Chimbu Provincial Seat Counting area he asked them to return to the counting.  The scrutineers said they were not feeling okay and refused to return but later they did.  This suggestion of the scrutineers returning is not supported and indeed goes against all the evidence earlier called by all parties.

96.	The RO maintained that the dispute was a minor one when giving his oral evidence in chief and earlier part of Onglo’s learned counsel’s cross-examination of him. He continued to maintain that position even when the video footage showing the attack on Onglo’s scrutineers was put to him.  However, when further cross-examined, this time with reference to the photographs of the seriously injured Onglo scrutineers, the RO conceded to the seriousness of the injuries sustained by those scrutineers. Despite the serious attack of Onglo’s scrutineers being captured and replayed in the video footages for him with the photographic evidence and medical evidence, the RO maintained his claim that these were minor incidents caused by Dilu’s scrutineers when in fact it was his appointed counting official Siwi Kawage who started the incident and other counting officials like Kimbe Nime both from Dilu and his Narku tribe, being involved in the serious attacking of the Onglo scrutineers.

97.	Further, the RO says his decision to continue with the counting was because live ballot papers were open and that he had received a brief not to stop counting.  However, he does not say where that brief came from. The PEM and the PPC had asked him to suspend the counting on seeing Onglo’s scrutineers being badly injured and were in no position to return to their respective scrutineering duties. The requested suspension was to enable Onglo to get his substitute scrutineers into the counting room to continue with the counting.

98.	Under cross-examination and on seeing the relevant part of the video footage, the RO conceded to some of the officials having no specific role or part to play in the counting room were allowed to roam around. The RO gave no convincing evidence as to why it was necessary to appoint and allow such an extra number of counting officials without specific tasks to perform, especially when there was a heavy presence of police and other security personal providing security at and for the counting room. This category of counting officials included, a Siwi Kawage from his and Dilu’s Narku tribe,  whom all witnesses identified as the one who initially kicked a ballot box and threw something at one of Onglo’s scrutineers, John Gende Kaima. That was a serious illegal conduct by a counting official.  Yet the RO did nothing about it or the fight that subsequently ensured were the Onglo scrutineers were seriously injured.  When pressed on in cross examination about that, he was evasive.  

99.	Siwi Kawage’s conduct contradicts the RO’s claim of the fight with Onglo’s scrutineers was with Dilu’s scrutineers only. The fight was set in motion or initiated by Siwi Kawage a counting official appointed by the RO who was allowed to roam around in the counting room without having a particular official role to play. Siwi Kawage was not the only person with no role to play, being allowed to roam around or hang around inside and outside the counting center and cause trouble. Kimbe Nime also from the Narku tribe, was another of those counting officials allowed to roam around in the counting room with no specific task. He too joined forces with Dilu’s scrutineers and attacked one of Onglo’s scrutineers.  Both the CCTV footage and the other evidence, show some of these extra officials joined with Dilu’s scrutineers to fight and cause serious injuries to Onglo’s scrutineers, while the RO and the other extra counting officials, moved ballot papers between, Onglo’s, exhaust and Dilu’s trays to increase Dilu’s votes. This was no minor incident. It affected the counting and the eventual outcome. 

100.	Given the revelation by the CCTV footage of ballot papers in fact being moved around as suggested by Onglo’s witnesses, it was necessary for the RO to address this point and properly carry out the usual quality checks and verifications before getting to the final declaration. That was required even if the attack of the Onglo scrutineers did not happen, and ballot papers were not moved to the wrong trays.  In the present case, it was necessary and was required particularly when the RO proceeded to continue the counting without scrutiny of the only other person in the race for the seat, Onglo, not by his choice but by the illegal means employed by counting officials and Dilu’s scrutineers. The RO makes no mention of conducting these steps, maybe because of his own evidence that, there was no such movement of ballot papers and that he was on a mission to declare Dilu as the winner of the seat.  

101.	Having regard to all of these, I closely observed the RO’s demeanor in the witness box, he did not impress upon me as a truthful witness.  Instead, he gave me the clear impression of an evasive and unreliable witness willing to give half-truthful evidence and prepared to make up evidence even when faced with what the CCTV footage and the photographs of the seriously injured Onglo scrutineers revealed.  Hence, I accept only the part of his evidence that contains his admissions and those that do not contradict the evidence of the witnesses I have already decided to accept. 

(v)	Samuel P Kagl

102.	The final witness called was Samuel P Kagl. His evidence in chief is per his affidavit Exhibit “R2 (3)”. He corroborates the RO’s testimony, in relation to the number of counting officials the RO was authorized to appoint being 170, the counting officials working on a shift basis, strict control on who could be allowed into the counting room, the setup of the counting room, conduct of counting and how it was possible for scrutineers to see and call for stopping of illegal movement of ballot papers.  He then adds:

(1)	Kama Gand did not raise any complaints at all at any time during the counting. 

(2)	Recalling being called to remove, and he did remove a complete stranger who had entered the counting center, yet he speaks of a rigorous security check which ensured this did not happen. How was this stranger allowed in, he does not offer any explanation.

(3)	A denial of the whole of Onglo’s allegations in his petition, which includes the serious attack of the Onglo scrutineers.

103.	In cross-examination, Samuel admitted to counting continuing whilst the attack on the Onglo’s scrutineers was going on and the Onglo scrutineers were badly beaten and forced out of the counting room. When this witness was shown the relevant CCTV footages covering the serious attack of the Onglo’s scrutineers, and other counting officials rushing here and there with live ballot papers to the exhaust box and to Dilu’s tray, he explained that it was necessary to secure the live ballot papers. Later when asked by the Court he admitted to counting without scrutiny was wrong.

104.	Although this witness conceded to the continuation of the counting without scrutiny was wrong, he did not impress upon me as a witness of the whole truth and nothing else. For if he was a truthful, honest, and reliable witness, he would have at least voluntarily mentioned amongst others the:

(1)	Serious attack on the Onglo scrutineers.

(2)	Serious injuries the Onglo scrutineers sustained.

(3)	Fact that, the Onglo scrutineers could not possibly return to continue with their role on the same day immediately after they were seriously attacked and were seriously injured.

(4)	Wrongfulness of the continuation of the counting without scrutiny by the only other candidate that was in the race, Onglo.

(5)	Wrongfulness in not properly consulting, seeking, and securing the approval of the relevant authorities including the PPC, PEM, the Electoral Commissioner and the AROs on duty before proceeding with the counting and declaration of results.

(6)	Based on the foregoing, the legality of declaration of the election results was in question.

105.	Further, as did the earlier witnesses for the respondents, Thomas, Anna and Nancy, this witness tries to paint a perfect picture of the counting being conducted transparently, fairly and with integrity. I repeat what I observed and said about this part of the earlier witnesses’ evidence, especially that of Anna and Nancy.  Without the witness properly covering the serious attack and injuries inflicted upon the Onglo scrutineers, and how it was proper for the counting to continue without scrutiny by Onglo’s scrutineers, this witness’ trying to paint a perfect picture of the counting process does not hold any water. This brings into question his credibility as a witness and the correctness of his evidence. His demeanour and performance in the witness box did not impress upon me as a witness of truth.  Given these factors, I reject this witness’ evidence, except, only to the extent that his evidence is consistent with the CCTV footage, the photographs of the seriously injured Onglo scrutineers and evidence of the witnesses I decided to accept.

6.	Submissions of the parties

106.	We now turn to the submissions of the parties on what must the Court do with the evidence before the Court.  In that regard, I note the parties’ submission in the main cover:

(a)	The credibility and acceptability of each of the witnesses and their respective evidence.

(b)	The facts I must find.

(c)	The answers I must give to each of the questions presented.  

(d)	The decision the Court must ultimately make to either uphold or dismiss the petition.

107.	I have already gone through the credibility of each of the witnesses and their respective evidence and made decision on which evidence to accept and which of them to reject in the foregoing.  This leaves us to deal with the remaining aspects.   

(a)	Finding of facts – The Law

(i)	Submissions and the law

108.	On the issue of facts, submissions of the respondents fall under two broad categories. The first concerns allegations made in the petition’s pleadings but not substantiated by any evidence.  Onglo makes no submission for any finding in his favour in respect of those pleadings. I am of the view therefore that Onglo has abandoned those allegations. There is however, evidence before the Court on the other allegations.  That leads us to the next category.  

109.	The second category concerns allegations in which Onglo has produced some evidence.  In respect of those parts of the case, the respondents through their respective learned Counsels submit Onglo had the burden to strictly establish the case he has pleaded, nothing more and nothing less. That they submit, Onglo failed to do. Therefore, they submit, the petition must be dismissed. 

110.	In so submitting, the learned Counsel for the Commission, Mr Williams citing the decision in Agonia v. Karo [1992] PNGLR 463, submits, an election is not a general inquiry into the process of an election for the Court of Disputed returns to see if any offences or omissions have occurred. Instead, “the Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.”

111.	Then citing the decision of the Supreme Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342, submits an election petition is no ordinary cause. It is a serious matter that challenges the will of the majority. Given that, “the legislature has accordingly laid down very strict provisions before there can be any [such] challenge”.  At the same time, counsel cites the recent five-member Supreme Court decision in William Hagahuno v. Johnson Tuke (2020) SC2018, which decided that a more liberal approach be given to election petitions given the dictates of s. 217 of the Organic Law. But he submits, as the Court does so, it must not lose sight of s. 218 also of the Organic Law which dictates that where an error or omission is proven, the error or omission must be a material one that affected the election result.

112.	Citing the unreported and unnumbered decision of Sakora J in Francis Koimanrea and Anor. v. The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002), Counsel goes onto submit, if elections are not conducted properly and in accordance with the law, it must not go without challenge but:

 “… if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations…”

113.	Further, counsel cites my decisions in Ludger Mond v. Jeffrey Nape (2003) N2318 and Peter Wararu Waranaka v. Richard Maru (2018) N7346, where I took the strict approach following the decision in Biri v. Ninkama (supra) and emphasized the importance of pleadings which drive the evidence. To further strengthen those submissions, counsel finally cites the Supreme Court decision in Michael Kuma v. Digicel PNG Ltd (2019) SC1851 at paragraphs 90 and 91 where the Court emphasized the importance of properly pleading a cause, without which no evidence can be led.

(ii)	Consideration of the submissions

114.	I make these observations.  Firstly, the decision in Agonia v. Karo (supra), concerned a petition based on an allegation of bribery which is a criminal offence. A single instance of bribery pleaded and established beyond any reasonable doubt can overturn an election outcome. Given that, the essential elements of the offence must be pleaded. Then to succeed, evidence establishing each of the essential pleaded elements beyond reasonable doubt must be presented.  This has been confirmed by many Supreme Court decisions. The latest decisions on point are the decisions in Philip Kikala v. Electoral Commission & Mangape (supra) Hagahuno v. Tuke (supra). This decision highlighted the fact that as long as the essential elements of the offence of bribery are pleaded, a petitioner need not do more in terms of pleading his or her case. 

115.	The present case is based on illegalities and irregularities in the counting room.  In my decision on the respondents’ objections to competency, I found the petition was competent to go to trial.  A trial was conducted, and all sides went into evidence. Hence, the considerations that apply to a petition based on bribery do not apply in this case.

116.	Secondly, the decision in Biri v. Ninkama (supra) is no longer good law. It has been overruled and replaced by the five-member Supreme Court decision in Hagahuno v. Tuke (supra). The decision endorsed the Supreme Court’s earlier decisions in Jimson Sauk v. Don Polye (2004) SC769 and Saonu v. Dade (2004) SC 763 and Danaya v. Wobiro (2013) SC1292 which spoke against the strict approach per Biri v. Ninkama (supra) line of cases.  Hagahuno v. Tuke (supra), also approved and followed its earlier decision in Philip Kikala v. Electoral Commission & Mangape (supra) which reviewed Biri v. Ninkama (supra) and overruled the decision on the application of s. 217 of the Organic Law. Hence, the decision in Biri v. Ninkama (supra) is of no assistance to the respondents. 

117.	Thirdly, I was a member and president of the bench in Hagahuno v. Tuke (supra). At paragraph 10 of my decision, I expressly acknowledged my error in following Biri v. Ninkama (supra) and that line of cases in my decisions in Mond v. Nape (supra) and Waranaka v. Maru (supra).  These decisions therefore do not correctly represent the law.  Instead, they have been overtaken and displaced by the decision in Hagahuno v. Tuke (supra). 

118.	Fourthly, counsel does not highlight sufficiently the decision in Francis Koimanrea and Anor. v. The Electoral Commission and Paul Tiensten (supra) which first emphasises the importance of an election petition in cases where “elections are not held or conducted properly, regularly, or according to law” before turning to the converse of that.  In that case, the Court highlighted the fact that: “public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied.” For a failure to do so:

“could result in the entire electoral system and its processes undoubtedly held up to public ridicule and brought into disrepute.  Citizens would lose respect for and confidence in their Constitution and its processes.  Democracy as enshrined in the Constitution would degenerate into a total farce.  It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.”

119.	In my decision in Hagahuno v. Tuke (supra) at paragraph 13, I picked up on that point and said:

“…Integrity in an electoral and election process and election results would readily be said to exist, if the laws governing these processes are fairly, honestly and correctly applied in the way they should be by those obligated by law to do so.  That would be from the Electoral Commissioner at the top to a counting officer to those who are aspiring to become elected leaders.  Also, it takes a proper scrutiny and enforcement of the laws through the appropriate court challenges, the ultimate of which, are election petitions. Successful prosecution of election petitions in appropriate cases undoubtedly contributes to meaningfully keeping and upholding integrity in our electoral system, election processes and outcomes.  For such successful prosecutions would send strong deterrent messages to those who might be inclined to or contemplate engaging in such illegal or improper conducts in an election.”

120.	Fifthly, I accept that pleadings do play an important part in all litigation. For election petitions, as noted by the decision in Hagahuno v. Tuke (supra), the decision in Biri v. Ninkama (supra) introduced, and it has been the law on strict interpretation of the provisions of the Organic Law and pleadings and meeting other requirements of the Organic Law for election petitions. This has resulted in serious problems with the ready technical knockout of many possible good petitions and has contributed to too much bad conduct at elections with many bad election returns. The subsequent decisions of the Supreme Court in Sauk v. Polye (supra) and Saonu v. Dade (supra) spoke against the strict approach and so did other Supreme Court decisions like the one in Danaya v. Wobiro (supra). Then before Hagahuno v. Tuke, the decision in Philip Kikala v. Electoral Commission & Mangape (supra) held the time has come to review the soundness of the decision in Biri v. Ninkama (supra) and overruled and replaced the decision in Biri v. Ninkama (supra).

121.	In my decision in the Hagahuno v. Tuke (supra) case, I noted at paragraph 64 that:

“…the Court in Biri v. Ninkama, did not give any consideration to the principles that should guide the interpretation and application of the provisions of the Organic Law, which is a Constitutional law.  That resulted in the Court employing a strict interpretation approach and in so doing, introduced two restrictions that have no expressed foundation in the Organic Law, which go against the whole purpose and intention of providing for election petitions ...  Firstly, the decision bars all forms of amendments after the expiry of the 40 days limit under s. 208 (e) of the Organic Law. Secondly, the decision deferred the application of s. 217 also of the Organic Law until at the trial of a petition.  This strict approach in my view, has also prevented the Court from considering and appreciating:
(1)	the importance of an election petition which may represent not only an individual losing candidate but representative of a significant part of an electorate;
(2)	election petitions assist in ensuring and enabling respect for and maintaining the integrity of the electoral system with the election process and election outcomes;
(3)	lawyers are specifically excluded from appearing in election petition cases by s. 222 of the Organic Law except by consent of the parties or with leave of the Court;
(4)	given (3) above, it was intended that an ordinary PNG citizen not standing in the same position as a citizen in Australia or England in terms of his or her educational and sophistication levels would bring an election petition to the National Court;
(5)	given (3) to (4) above, Parliament would therefore have not intended or foreseen flawless petitions but could have anticipated defects, errors and omissions attending election petitions;
 (6)	appreciating (3) to (5) above, Parliament deliberately decided to allow for flexibility with less rigidity by deciding to and including the provisions of s.217 of the Organic Law to ensure that was the case; and
(7)	in particular, the technical rules going into pleadings and evidence that attends other proceedings are specifically excluded by s.217 of the Organic Law to allow for more flexibility in the Courts dealing with election petitions.”

122.	The decisions of the Supreme Court in Kikala v. Electoral Commission & Mangape (supra) and Hagahuno v. Tuke (supra) corrected those errors and overruled Biri v. Ninkama (supra). These decisions are the most relevant and applicable authorities. They stand for the proposition that s. 217 of the Organic Law is an important provision that applies both at the preliminary stage of objections to competency of a petition through to trial and final decision. Hence, what has been pleaded, what evidence has been called or produced by the parties and what use must this Court make, are questions that must be answered through the lenses of s. 217. For this Court to do “real justice” it must “be guided by the substantial merits and good conscience” of the case “without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not”.

123.	Finally, in the context of this case, the decisions of the Supreme Court out of Charles Maino’s challenge against Moi Avei’s election victory out of the 1997 National General Elections for the Kariku-Hiri Open seat are relevant.  The first of the two decisions is published as Maino v Avei & Electoral Commission of PNG (2000) SC633 while the second one is reported in the PNG Law Reports as Maino v. Avei [2000] PNGLR 404.

124.	These judgements concerned the filing of 4 affidavits by Mr. Maino after the trial Court ordered a re-count and before the matter returned to the Court with the results of the recount. Without properly attending to a proper admission into evidence of those affidavits with opportunity given to Mr. Avei to respond to them, Mr. Maino invited the trial Court to accept the evidence and uphold his petition. In response, Mr. Avei argued to the contrary.  The trial Court without addressing the issue of proper admission of the affidavits and related, proceeded to consider the contents of the affidavits.  Based on the affidavits, the trial court upheld the petition. 
.
125.	On review, the Supreme Court in its first decision, dismissed the application and reaffirmed the trial Court’s decision. The Court reasoned that the trial Court was entitled under s. 217 of the Organic Law to consider all evidence, including the affidavit evidence before it. The second decision followed a slip rule application for the Supreme Court to reconsider its first decision.  The Court decided to reverse its earlier decision. In so doing, the Court reiterated s. 217 of the Organic Law dictates that “the technical rules of evidence do not apply”.  At the same time however, the Court emphasised the fact that s. 217 of the Organic Law directs the Court to:

“be guided by the substantial merits and good conscience … without regard to legal forms and technicalities or whether the evidence before it is in accordance with the law of evidence or not”. 

126.	The Court went on further, to say:

“the provisions of s 217 are not meant to override the right to have a say on any allegation or evidence that may affect a party, unless the party’s own action shows him not wishing to conduct any examination or call any contrary evidence. The superior court, in this case the Supreme Court, cannot apply a different law to this.”

127.	The Court went on to point out that the rule in Browne v. Dunn (1893) 6 ER 67 (H.L.), still applies.  The rule is, evidence not put to the other side or not challenged by an opposing party, stands as uncontested and the Court can proceed to consider the evidence on that basis. Section 217 of the Organic Law does not exclude the rule in Brown v. Dunn.  Instead, it provides the necessary expressed statutory foundation for a Court of Disputed Returns to: 

“be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.”

128.	As noted above, these words of s. 217 have been the subject of many National and Supreme Court decisions. The latest Supreme Court decision on point is the one in Hagahuno v. Tuke (supra).  Allowing myself to be guided by those decisions, I take the directive in s. 217 to mean, the Court of Disputed Returns’ decision-making process is to focus on the fundamental principles and fairness of a petition at hand. It emphasises the need for the Court to look beyond procedural or technical aspects of the law and instead consider the essence and substance of the petition before it. Approaching a petition in this way would ensure that judgments are based on the underlying principles of justice and fairness rather than being limited by strict adherence to legal forms, processes and procedures or technicalities. Ultimately, this allows for a more flexible and equitable interpretation of the relevant laws, which would enable the Court to reach a just and equitable outcome based on the individual circumstances of each case.

129.	The question then is, what are the circumstances or the substance of the petition in the present case?  From the pleadings in the petition, to the evidence called by the parties, the petition concerns the integrity, which means, openness, fairness, safety and security of the counting process employed for the KGO Seat in the 2022NGE from 02 to 06 August 2022 and the correctness of the eventual declaration of Dilu as the winner of the election.  

6 (b)	Findings of fact – Facts from uncontested evidence

130.	The uncontested and unrebutted evidence of Onglo and his two scrutineers, Kama and John and his other witnesses, is that the counting center at the Dickson Oval in Kundiawa was surrounded and under the control of Dilu’s supporters from the outside. The supporters made it next to impossible for the Onglo scrutineers to freely, safely and fearlessly enter and exit the counting venue for each day of counting. They were instead subjected to much trouble and difficulty in entering these venues. They were forced to take several steps including, on one occasion, seeking and securing police assistance to get into the counting venue.

131.	The scrutineers were threatened with violence and death.  The level of threat went to such an extent that one of the scrutineers, John decided against going to the counting center to continue with his duty to discharge his important function of scrutinizing the counting on behalf of Onglo on 04 August 2022.  That was out of fear for his life.  There were more attempts at getting the scrutineers away from performing their duties.  That included offers of bribery in the form of an offer of an airline ticket to Port Moresby made by Dilu himself and make an offer of K50,000.00 communicated by Dilu’s scrutineer, Auta Paul Muguwa to one of Onglo’s scrutineers, Kama Gande. 

132.	When all the threats and offers failed to achieve their intended objective of getting the scrutineers out, Dilu’s scrutineers resorted to actual physical violence against both of Onglo’s scrutineers with the support of some of the counting officials. They seriously injured and drove the Onglo scrutineers out of the counting room. This serious incident did not stop the counting. Despite the PEM and the PPC asking the RO to suspend the counting to enable Onglo to send in his replacement scrutineers, the RO decided to continue with the counting, without the only other person in the race scrutinizing the counting and the ultimate declaration of Dilu as the winner of the KGO Seat. Having proceeded in that way, the RO produce no evidence of the process he adopted to ascertain and confirm the accuracy in the counting of the votes, their allocation to the correct candidates and or the exhaust tray, by conducting preliminary and final quality checks and the like before proceeding to making his declaration of Dilu as the winner of the relevant election. 
 
6 (c)	Findings of fact – Facts from contested evidence

133.	From the versions of the evidence and facts I decided to accept on the contested facts there are several additional circumstances.  Firstly, the RO admitted he and Dilu are members of the same Narku tribe.  He also admitted to being an uncle to Dilu in the “Melanesian way”.  

134.	Secondly, the RO was authorized to appoint 170 counting officials, but he appointed 30 more to increase the total to 200 counting officials. No reasonable and justifiable reason or explanation was given for going beyond the authorized limit and whether that was approved.  Of that 200, the RO gave a list at paragraph 26 of his affidavit of 19 counting officials with their tribal affiliation or membership and or their residential area in the electorate. Three out of that list have no indication of their tribal membership or their respective residential locations. One of them, Kimbe Nime, who has been identified as one of the counting officials who attacked and injured the Onglo scrutineers is indicated as coming from the Narku tribe. The RO has not produced any list indicating the tribal affiliation or residential locations of the balance of 181 counting officials.  Despite talking about the officers working under shifts as opposed to all these people crowding the counting room, the RO produced no documentary evidence in the form of a list for at least one or two of the shifts. From this lack of explanation and evidence, I have inferred that most of the counting officials totaling 184 were appointed from Dilu and the RO’s Narku tribe.  

135.	Thirdly, I have also found that although the counting room may not have been crowded in the ordinary meaning of the word, there were more counting officials like Siwi Kawage, allowed into the counting room with no task to perform other than obstruct and interfere with the Onglo scrutineers. These extra counting officials obstructed the Onglo scrutineers’ views especially of what was happening at the sorting table which was away from their location. These extra officials also interfered with the scrutineers carrying out of their functions by issuance of threats and several means of intimidation in response to objections or issues the scrutineers raised in the counting room. These extra counting officials further teamed up with the Dilu scrutineers in the fighting, seriously assaulting and driving the Onglo scrutineers out of the counting room.

136.	Fourthly, the fighting, seriously injuring and driving the Onglo scrutineers out of the counting room and counting continuing without any scrutiny by Onglo and proceeding to declare Dilu the winner of the election without proper quality and other checks was all unprecedented events.  Yet the RO and all Dilu’s witnesses did not volunteer or mention with the relevant details this incident in their respective affidavit evidence or their oral evidence in chief.  They were instead prepared to say the counting processes proceeded well with no major event interrupting the counting process and played down the seriousness of the attacks on the Onglo Scrutineers.

137.	Fifthly, we have the CCTV footage, which is the only totally impartial piece of evidence. The various segments of the CCTV footage corroborate Onglo’s witnesses’ evidence saying, Onglo was collecting almost all the votes from Tobias Kulung’s second or third preference votes when counting commenced on 06 August 2022. With the witnesses assisting in identification, the footage clearly shows Siwi Kawagi kicking a ballot box, confirmed as that of Onglo. He is then seen throwing something at or toward the Onglo scrutineers. The footage further shows the physical attack of the Onglo scrutineers shortly thereafter.  Furthermore, the CCTV footage shows, despite the fighting, the counting continues as if nothing is happening. Further still, while the attack continues, officers from within the counting room are seen moving ballot papers into the exhaust tray, while the RO is seen standing next to the exhaust box showing no sign of any concern over the attack on the Onglo scrutineers and the quick movement of ballot papers.  

7.	The questions and answers

138.	With these facts or circumstances in mind, we now turn to the remaining questions and their answers.  We start with the first question first.

(a)	Main question No.1 

139.	The question once again reads:

“Was the scrutiny and counting for the KGO Seat compromised by increased number of counting officials crowding the counting room and collusion between certain counting officials led by the RO, who were related to Dilu, and his supporters?”

140.	Included in this question are the following factual sub-questions that must be first answered:

(1)	Is the RO related to Dilu?

(2)	Did the RO appoint counting officials from his and Dilu’s tribe and other nearby tribes?

(3)	Did the RO appoint more counting officials than required?

(4)	Was the counting room overcrowded with the officials appointed by the RO?

Sub-question (1)	- Is the RO related to Dilu?

141.	Based on the RO’s own evidence and admission, the answer to the first question is “Yes”.  The relationship as described by the RO himself is that he is an uncle to Dilu in the “Melanesian way”. This is a traditional or customary concept.  As I stated in Bernard v. Duban (2016) N6299 at [59], Sch. 2.1 (1) – (3) of the Constitution as interpreted and applied by the Supreme Court decisions in SCR No 1 of 1977; Re Rights of Person Arrested or Detained [1977] PNGLR 362 and SCR No 4 of 1980; Somare, Re [1981] PNGLR 265, empowers the Court to be informed of the relevant custom in several ways.  

142.	One of them is the judge’s own knowledge of the relevant custom in question. In so far as my knowledge and experience goes in respect of this customary concept, I note that “an uncle in the Melanesian way” connotes a relationship in existence that is not only biological but cultural. Such relationships center around tribes, clans, families and other cultural groupings that may have originated from time immemorial in Melanesia, which includes, PNG, Fiji, Solomon Islands and Vanuatu.  

143.	Although in the context of customary land rights what I said in Bernard v. Duban (supra) at [60] equally applies in other settings. There I said:

“A landowning family would be connected to a common ancestor through their grand, great and great, great grandparents and so on until they reach their tribes and beyond that, language and other groupings. A grouping of a number of families with common origin and other factors, are usually sub-clans who could inter marry, fight wars usually over land within their boundaries, women and other properties, yet remain part of the grouping in every other way.  Similarly, at the next level being clans, again within their boundaries, there would be inter clan marriages, war fares over land within their boundaries, women and other properties. The same goes for the next level, being the tribes.  The tribes would be larger groups depending on their traditional stories about their origin, past and present trading and other linkages…” 

144.	Tribal and clan groups come first in line outside the individual family unit in PNG.  This is so because of the explanation I offered in in Bernard v Duban (supra) at the same paragraph as above, in the context of customary land rights in the following terms:  

“These levels of groupings [family, clan, subclans and tribes] enables an individual to assert and enforce his or her ownership or other rights and interests in customary land against others.  At a family level, it would be within the family with leadership provided by the father or the mother (depending on the kind of society) which has the authority to make decisions in cases of disputes and a lack of resolution through consensus. Then at the sub-clan level, it would usually be under the leadership of one or two persons from within the sub-clan who are respected and accepted as leaders.  The same would be the case at the clan and tribal levels.”

145.	In elections tribes and clans have played far more influential roles in election outcomes, especially in the highlands. Couple of learned authors acknowledge the power of the tribes or clans with block voting which the limited preferential voting (LVP) system was intended to overcome: See for example B. Reilly, Political reform in Papua New Guinea, The Australian National University, Pacific Economic Bulletin, Vol. 21 No. 1, 2006, Asia Pacific Press.  Unfortunately, the LPV system did little or nothing to secure secret votes by voters and have their votes counted. A Freedom House publication covering the 2022 elections asks and answers the following question:

“Are the people’s political choices free from domination by forces that are external to the political sphere, or by political forces that employ extrapolitical means?	

In coastal and lowland areas, most citizens and candidates are generally free to make political choices without undue interference. However, in the Highlands, many local leaders, politicians, and candidate agents control the balloting process and complete the ballot papers in bulk—a form of “assisted voting.” As a result, the affected citizens are essentially denied the right to vote.”
(Underlining mine)

146.	Given this, the tribal relationship, is a significant factor to consider when it comes to determining whether the election outcome for the KGO Seat was arrived at with integrity in that it was fair, impartial, open or transparent with scrutineers free to raise objections and other issues as may have been warranted as a matter of fact.  This leads us to the next sub-question within the first question.

Sub-question (2) - Did the RO appoint counting officials?
 
147.	The question is:

“Did the RO appoint counting officials from his and Dilu’s tribe and other nearby tribes?”

148.	The simple answer to the question is “Yes”.  The RO admitted to being authorized to appoint counting officials and he made the appointments. Following from that is the next sub-question, which we turn to now.

Sub-question (3) - Did the RO appoint more counting officials than required?

149.	The answer to that question is also “Yes”.  As already noted, the RO failed to produce copies of each of the shifts he alleged his appointed counting officials worked under with their respective tribal affiliations. Similarly, he also failed to provide a full list of the total 200 (30 more officers than authorized) counting officials he appointed with their tribal affiliations, like the list he deposed to in paragraph 26 of his affidavit.  These failures form the foundation to infer that more counting officials about 184 of them were appointed from his and Dilu’s Narku tribe, some more than what was required. 

150.	This leads us to the remaining sub-question of was, the Counting room overcrowded by counting officials. 

Sub-question (4) - Was the counting room overcrowded by Counting officials?

151.	To answer that question, we need to consider and answer the question, what evidence do we have on point? Onglo pleaded in his petition and his scrutineer witnesses, Kama Gande and John Gende Kaima and his learned Counsel’s submission speak in terms of an overcrowded counting room.  On the other hand, the respondents’ witnesses and their learned Counsels speak of the opposite. The evidence just disclosed and discussed above without more, suggest there being a crowd and hence a “Yes” answer to the question.  

152.	However, when the CCTV footage is introduced, it gives an independent and impartial picture of the number of people that were present in the counting room with some freely and aimlessly roaming around. This evidence does not show any crowd in the ordinary meaning and sense of the word inside the counting room. At the same time however, it reveals several people, some of whom were identified and named by Onglo’s witnesses, are seen roaming around aimlessly in the counting room and many others hanging around outside the counting room. Of those inside, they were named and identified by Onglo’s witnesses as members of Dilu and the RO’s Narku tribe. It is the action of these free roaming around counting officials, according to the Onglo scrutineer witnesses that caused them obstructions.

153.	The obstruction was not only where the ballot boxes were being opened and called out but also and more so what happened thereafter as well. This is well described by Kama at paragraph 25 of his affidavit, Exhibit “J” in these terms:

“John Kaima and I were busy seeing the Callers who were calling the ballot papers and giving them to the Runners to put them in the correct tray, such as the exhaust tray, tray 16 for the Petitioner, tray 24 for the First Respondent and tray 26 for candidate Tobias Kulung, that we could not get ourselves close enough to see the sorting table and the exhaust tray as that space was occupied and blocked by the counting officials.” 

154.	Aside from the suggestion of the extra counting officials obstructing the views of the Onglo scrutineers in the way they described, I find there was no crowd or overcrowding in the ordinary sense of those words. This explains why they do not give any evidence of movement of ballot papers in that area, but other witnesses have.

155.	I will leave the legal question of, was the scrutiny and counting for the KGO Seat compromised to answer after all the remaining factual questions presented under factors (a) to (c) in the second main question are determined.  

(b)	Main Question No. 2 - Was the counting of votes conducted without proper scrutiny, with ballot papers moved and Onglo scrutineers assaulted and removed from scrutinizing the counting?

156.	We now turn to the consideration of question 2 (a) to (c).  I will deal with these questions together. The questions are:

(a)	Were there removing of Onglo’s marked ballot papers into the exhausted ballot box or stuffing them into Dilu’s box to decrease the number of votes Onglo received?

 (b)	Were there stuffing up of Dilu’s tray or box with ballot papers not marked for him but other candidates and Onglo to increase Dilu’s votes?

(c)	Were Onglo’s scrutineers assaulted and removed from the scrutiny and counting of votes continued without scrutiny to ensure Dilu was declared the winner of the election? 

157.	There are two components to this question.  The first is the removal of ballot papers. This is the subject of sub-questions (a) and (b). The second component is assaulting and removal of the Onglo scrutineers from the counting room, counting continuing and concluding with Dilu declared winner without scrutiny.  This is the subject of sub-question (c).

158.	The question of removal of ballot papers also has two components. The first concerns an allegation of moving Onglo’s marked ballot papers into the exhaust tray both before, during and after the fighting and assaulting of the Onglo scrutineers. The second concerns an allegation that ballot papers marked for Onglo or other candidates were placed in Dilu’s tray. 

(i)	Respondents’ submissions

159.	Submissions of the respondents fall under two broad categories. The first concerns allegations made in the petition’s pleadings but not substantiated by any evidence at all.  Onglo makes no submission for any finding in his favour in respect of those pleadings. I am of the view therefore that Onglo has abandoned those allegations. 

160.	The second category concerns allegations in which Onglo has produced some evidence in a bid to substantiate his allegations.  In respect of those parts of the case, the respondents through their respective learned Counsel submit Onglo had the burden to strictly establish by evidence the case he has pleaded, nothing more nothing less.  That they submit, he failed to do. Therefore, they submit, the petition must be dismissed. 

161.	I already addressed these submissions of the respondents at paragraphs 108 to 129 above.  In short, I determined that the provisions of s. 217 of the Organic Law applies for the reasons I have already given. Then applying s. 217, I proceed to making findings of fact based on the evidence before the Court.  

(ii)	Question 2 (a) and (b) – Removal of Votes

162.	Based on the facts so found, the first two sub-questions can be answered without more.  I state below the relevant questions with their answers:

(a) 	Question: Were there a removing of Onglo’s marked ballot papers into the exhausted ballot box or stuffing them into Dilu’s box to decrease the number of votes Onglo received?
Answer: “Yes”.

(b) 	Question: Was there a stuffing up of Dilu’s ballot box with ballot papers not marked for him but other candidates and Onglo to increase Dilu’s votes?
Answer: “Yes”.

(iii)	Question 2 (c) – Assaulting, removal of Onglo scrutineers and proceeding without scrutiny 

163.	I now turn to sub-question (c).  That sub-question asks:

“Were Onglo’s scrutineers assaulted and removed from the scrutiny and counting of votes continued without scrutiny to ensure Dilu was declared the winner of the election?”

164.	As can be seen, this sub-question has three parts. These are:
 
(1)	Were Onglo’s scrutineers assaulted and removed from the scrutiny and counting of votes?

(2)	Did counting of votes continue without scrutiny after the assaulting and removal of the Onglo scrutineers from the counting room?

(3)	Were the events covered in (1) and (2) above intended to ensure Dilu was declared winner of the election?

165.	Based on the evidence and finding of the relevant facts as noted above, the first two questions are answered with a “Yes”. As for the third sub-question, I answer the question also with a “Yes”. In so doing, I accept that there is no direct evidence as to there being such an intention of the RO and those with whom he conducted the counting and declaration with.  Intention is always difficult to establish as a fact. However, the law is well settled. Intention can be inferred from the actions or inaction of the person whose actions or inactions are under consideration: See for example, Gamu v. State (2023) SC2368.

166.	In the present case, when we consider the whole conduct of the counting process. That starts with the appointment of the RO to the RO appointing more counting officials than the number he was authorised to appoint, to appointing a majority of the counting officials from Dilu and his Narku tribe as counting officials, Dilu’s supporters surrounding and blocking off all access into and out of the counting center for the Onglo scrutineers with threats of violence and intimidation leveled against them, to extra counting officials with no specific tasks allowed into the counting room and allowing them to roam around causing distractions, intimidation and otherwise interfere with the Onglo scrutineers, offering of bribes, threats of physical violence, physically fighting and causing actual physical harm and injury to the Onglo scrutineers and driving them out of the counting room and despite that, counting allowed to continue, conclude and finally declare the winner of the election without scrutiny from the only other remaining candidate, leads to the “Yes” answer. 

(iv)	Main Question 3 - Was the election outcome seriously affected

167.	This takes us to the last question to be considered and answered.  The question is:

 “Depending on the answers to the earlier questions did the alleged actions or inactions of the Commission and supporters of Dilu seriously affect the outcome of the election for the KGO Seat?”

168.	I will deal with this question under the following categories:

(a)	Appointment of ROs and counting officials.

(b)	Security and access to and from counting venues for scrutineers;

(c)	Movement of ballot papers to the wrong trays; and

(d)	Scrutiny at counting of ballot papers or votes and final declaration. 

(a)	Appointment of the RO and counting officials 

169.	We start with the first category of the appointment of ROs and counting officials. Section 19 of the Organic Law provides for the appointment of a RO by the Electoral Commission by notice in the National Gazette, for each electorate. Once appointed, a RO is “charged with the duty of giving effect to this Law [Organic Law] within or for his electorate, subject to any directions of the Electoral Commission.” He is thus a delegate of the Commission. All learned counsel did not assist me with any submissions on the qualification for appointment as a RO. In the absence of any expressed provision to the contrary, I consider the criteria should be like those provided for other counting officials in s.88 of the Electoral Law (National & Local Level Government Elections) Regulations 2007 (No. 4 of 2007) (the Election Regulations).  That provision reads:

“88.	Appointment of scrutiny officials
A Returning Officer shall ensure that a person appointed as a counting official to count votes at a counting center-
(a)	does not hold an office in a registered political party; and
(b)	is not a member of the Parliament representing the electorate; and
(c)	is not a member of a provincial government assembly or local-level government representing the electorate concerned; and
(d)	has not been a candidate in a national election or local-level government election in the electorate concerned; and
(e)	is not so closely related by blood or marriage to a person referred to under Paragraphs (a), (b), (c) or (d); and
(f)	is not so obviously closely associated with a person referred to under Paragraphs (a), (b), (c), or (d).
(Underlining supplied)

170.	The factors under (a) to (d) are obvious. As such, they require no further consideration.  Factors (e) and (f) are most relevant given the importance of National General Elections, which appear to be getting worse each election.  These two factors should be interpreted liberally and consistently with s. 217 of the Organic Law as interpreted and applied by the five-member Supreme Court decision in Hagahuno v.Tuke (supra).  

171.	To Westerners, family and other forms of relationship are restricted and usually much smaller in terms of the total number of human beings in such relationships.  This must be contrasted with the generous way in which Papua New Guineans take their relationship to include much extended notions of fathers, mothers, brothers, sisters, cousins, aunts, uncles, grandmothers, grandfathers, tribes, clans and families, which extended to include even people from other families, clans and tribes and even foreigners who have no biological and lineage connections with them. 

172.	In the context of the issues on appointment of counting officials, the learned counsel for Dilu submits for the restrictive literal interpretation.  On the other hand, learned counsel for Onglo submits effectively that this Court should go by the provisions of s. 217 of the Organic Law as interpreted and applied in Hagahuno v. Tuke (supra).  The law is now settled per Hagahuno v. Tuke that the fair large and liberal interpretation rule applies to interpretation and application of provisions of the Organic Law and the regulations made thereunder. This approach is dictated by the object of having provisions like s.88 of the Election Regulations. The intent and purpose of having this provision in my view is obvious.  Any person with a relationship with a candidate or any of the other persons listed in s.88 (a) to (c) of the Regulations are not appointed. That is necessary to ensure that the RO and the officers that are appointed by a RO is impartial and independent and are able to run the relevant elections in a fair, impartial, open and transparent manner and hence with integrity. 

173.	In the present case, the Commission appointed the RO who is a tribal uncle to Dilu and the two of them come from the same Narku tribe. That placed Dilu in a more advantageous position.  That in my view placed the other candidates compared to Dilu in a more disadvantaged position by virtue of their having no such relationship with the RO.  The advantage Dilu had, played out first in the RO’s appointment of more counting officials from the Narku tribe. Secondly, he allowed extra counting officials from his tribe or nearby tribes to interfere with, and ultimately physically attack, cause serious bodily injuries to the Onglo scrutineers and have them removed from the counting room. Thirdly, despite the serious assaulting of the Ongol scrutineers, the RO allowed counting to continue and ultimately declare Dilu as the winner.  Fourthly, he made the declaration without any quality, accuracy and other checks.  Additionally, the evidence before the Court establishes that the RO and the officials he appointed refused to respond to objections and other issues raised by the Onglo scrutineers. 

174.	Having dealt with several election petitions, I note that the appointment of RO and other polling and counting officials that are related in some way to a candidate in an election is a recurring problem. That problem has led to compromising of the election process resulting in so many election petitions filed after each election.  A quick search of the published judgements out of disputed election returns confirms this. That means, the Commission has failed to carry out sufficient checks to ensure the people it proposes to appoint as ROs do not have any relationship in the wider PNG sense of the word with any of the candidates before appointing them. This is critical and important because it is the ROs who appoints counting officials and others.  If the RO appointed is related to a candidate in the broader sense of the word, he could further compromise the independence and integrity of the election process by appointing other counting officials that are also related to the same related candidate. They would then work in collaboration with the RO as had happened in the instant case and thereby, produce an election outcome that is seriously compromised, not fair, not right and lacks integrity. Effectively, instead of allowing for the peoples’ votes to produce an election outcome fairly by their votes, their votes continue to be hijacked or disregarded. In this way the people’s right to elect a representative to parliament once every 5 years and hence have a say in our country’s national affairs get denied and people with questionable characters or people who have not fairly and honestly secured the peoples vote allowed to enter Parliament. 

(b)	Security and access to and from counting venues for scrutineers.

175.	The uncontested evidence is that, Dilu’s supporters took control of the counting venue from the outside. That went on for several days from 02 to 06 August 2022. Dilu’s supporters made entry and exit from the counting venue difficult for the Onglo supporters. The supporters issued threats and intimidated the Onglo scrutineers. Inferring from the whole of the circumstances before the Court, I am of the view that the whole objective of this was to ensure the Onglo scrutineers did not get into the counting room. If they succeeded in that, the counting could have proceeded without the Onglo scrutineers. That would then have resulted in a manipulation of the counting process and the eventual declaration of Dilu as the winner without any significant resistance and no one remaining in the counting room to tell of what went on in the counting room. There is no evidence from Dilu himself or any of his witnesses as to what he did to stop and remove his supporters from doing what they were doing and allow for free and uninterrupted entry and exit from the counting room of the Onglo scrutineers, so they could discharge their functions without any fear or favour. By his failure, Dilu demonstrated his preparedness to win the election, by all means, even if, some of the means adopted were illegal.

176.	The actions of Dilu’s supporters were calculated to ensure the peoples votes were not properly ascertained by proper scrutiny through a fair, open and impartial process where each ballot casted is examined through the scrutiny process and allocated according to the choice the voters have made per their ballot.  I will elaborate on this later under the question of scrutiny under question item (d).

(c)	Movement of ballot papers to the wrong trays or boxes

177.	The next lot of action taken by Dilu’s supporters was the movement of various ballot papers into either Dilu’s or the exhaust tray.  The relevant days are the 05 and 06 August 2022.  As noted already, the movement of ballot papers were as follows:  

(1)	On 05 August 2022:
(a)	According to Lucy’s evidence, when the candidate Stanley Enn Alphones was eliminated an estimated 1,000 ballot papers marked for Ongolo and some of them for candidate Tobias Kulung were bundled with Dilu’s and were posted on the tally board for Dilu.  If these votes are divided equally by three that would come to Onglo losing about 333 votes, while Dilu is gaining by 666 votes, as he is also receiving Tobias Kulung’s share. This means a difference of 666 in the winning margin. 

(b)	Kulame’s evidence adds about 150 – 200 ballot papers marked 29 in 03rd preference votes for candidate Mathew Gedua on tray 20 for candidate Stanley Alphones were moved to tray 24, for Dilu.

(c)	Kama’s evidence, at paragraph 19 of his affidavit, suggests many instances of ballot papers marked for Onglo being placed in Dilu’s tray. He also suggests at paragraph 22 of his affidavit of many instances of ballot papers marked for other candidates placed in Dilu’s tray. 

(2)	On 06 August 2022:
(a)	Kama’s evidence suggests Onglo began to collect more votes with a total of about 2,500 to 3,000 ballot papers called. By then Onglo had 1 full tray of ballot papers and a second one about three quarters full, while Dilu had only 1 tray up to only a quarter way full. Kama estimates the total ballot papers in the two trays for Onglo to be about 1,500 to 2,000.

(b)	On seeing how his candidate was doing Dilu’s scrutineer, Auta Paul Muguwa offered to get Kama out of the counting room with an offer of K50,000.  Kama rejected that offer and soon thereafter he and his fellow scrutineer, John Kaima were attacked, they both sustained serious injuries and were driven out of the counting room.

(c)	John’s evidence gives a similar estimate as Kama of the number of ballot papers counted prior to the fighting and seriously injuring of the Onglo scrutineers. He estimates the total number of ballot papers counted at that point to be between 2,000 to 3,000.  Then for the possible votes Onglo had in his tray, he gives an estimate of 2,000 to 2,500 votes while Dilu collected about 400 – 500 votes.

(d)	Kulame’s evidence suggests that whilst the fighting and assaulting of the Onglo scrutineers provided a distraction, he saw many exhausted ballot papers picked up and placed in Dilu’s tray and in that way filled up fully three trays. Going by the estimated number of ballot papers held in 1 full tray and another three quarters way full for Onglo given by Kama, two of the full trays could be about 2,000 to 2,500 votes.  Or if we go by John’s estimates the total estimated ballot papers would be about 2,500 to 3,500 votes

(e)	Prior to the fighting, seriously injuring and driving out of Onglo’s scrutineers, Theresa and Kulame’s evidence suggest Sandy Michael moved from the sorting table an estimated 2,000 to 3,000 ballot papers or votes marked for Onglo into the exhaust tray. 

(f)	Lucy’s evidence adds about 100 – 200 ballot papers, some of which were exhausted, some marked for Onglo and others marked for Dilu were thrown into the exhaust tray by Philip Makis.  If we divide these votes equally by 3, it means both Onglo and Dilu lost about 32 to 63 votes each. Hence this does not have any impact on the petition either for or against Onglo or Dilu.

(g)	Lucy further adds after the fighting of the Onglo scrutineers, Waim Palma took 2 bundles of ballot papers estimated to be around 300 – 400 and threw them into the exhaust tray.  She does not however, indicate if they were live votes and if so, whose votes they were. Hence, these figures cannot be considered either for or against Onglo or Dilu.

178.	On this evidence, we have an estimated total of 4, 816 at the lowest and an estimated 7,366 votes at the highest were moved in favour of Dilu. The respondents tried to discredit the various figures given by reference to sample ballot papers for the Goroka Open Seat. Unfortunately, this ballot papers and the relevant questions were not put to the Onglo witnesses.  Applying the rule in Brown v. Dunn as adopted and applied in many cases in our jurisdiction like the decision in Maino v. Avei (supra), the respondents’ attempts must fail. 

179.	Additionally, I do not agree that the figures given by the Onglo witnesses are mere speculations.  Each of the relevant witnesses gave evidence of their respective basis for giving the estimated figures.  Theresa, in her evidence for example, made it clear that the figures she testified to were from the very table she was dealing with.  Hence, the estimated figures she gave were based on what she saw, witnessed and experienced in the counting room.  Additionally, the estimated ballot papers she and the other witnesses testified to were dealt with in bundles and not individually. It was thus difficult for her and the other witnesses to be precise.

180.	The evidence with the various estimated figures is the only and best evidence we have.  I reiterate what I said during the assessment of each of the witnesses testimony, the Commission had the duty and was in a better position to produce the precise figures, through the RO and AROs or any of its other officials directly dealing with the counting of the KGO Seat, as to the total number of votes in each ballot box opened, whose votes each of the ballot papers were marked for, which tray they were in fact placed, whether they were rechecked for accuracy before posting them on the progressive tally board and so on until each ballot paper was properly accounted for up to the final count, allocation, preliminary and final quality checks and finally the final declaration. This it failed to do. See Warisan v. Arore (2015) SC1418.

181.	Where the primary or specific evidence on any matter in issue between the parties cannot be produced in Court, the principle of “best evidence rule” applies and the issue before the Court can be determined on the secondary or other evidence adduced and is before the Court.  The decision of the Supreme Court in Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605 is relevant. What the Court said there, although, in the context of a case of trespass, is instructive.  At paragraph 41 of its judgment the Court said: 

“Thirdly, we observe that a landowner would be hard placed to access any evidence on the specifics and more so the full nature and extent of a trespassers gain or benefits from the use of the land.  Naturally, a trespasser would be in possession of such information. The onus should be on the trespasser therefore to fully disclose all relevant information or evidence. Such disclosure should be made upon the landowner making a claim against a trespasser to enable an expedited settlement through direct negotiations, mediations or a form of ADR and only failing that, resolution by trial.  Any failure to disclose or produce the kind of evidence in question, should result in any secondary or tertiary evidence being allowed to overcome the lack of any direct evidence, as a practical application of the best evidence rule principle.”

182.	In this case, the parties consented to their respective affidavit evidence being admitted into evidence. Accordingly, I had them admitted into evidence and gave them their respective exhibit marks. No reservation or objection was ever raised by either of the respondents against the whole or parts of the affidavits sought to be admitted into evidence for Onglo based on either there being no foundation in the pleadings or any other basis. Similarly, no objection was ever raised by either of the respondents against any part of Onglo’s witnesses’ oral evidence. Instead, all Onglo witnesses were called, cross-examined and re-examined.  By their own conduct, in failing to object to the evidence which they now submit, I should reject, they decided to allow that evidence to be adduced as evidence in the case. 

183.	In these circumstances, the rule in Brown v. Dunn (supra) as discussed and applied in Maino v. Avei (supra) within the meaning of s. 217 of the Organic Law applies against the respondents. Accordingly, I reject the respondents’ submissions.  Consequently, the evidence adduced for or by Onglo is evidence before the Court for the Court to consider and come to a decision in the interest of doing “real justice” in the substantive merits of the case, as I am required to do under s. 217 of the Organic Law. The serious, compromise of a proper scrutiny process disclosed by the evidence cannot be swept under the carpet or ignored.

184.	Proceeding on that basis, I find the number of ballot papers or votes removed from Onglo’s tray and placed in the exhaust tray or given to Dilu along with other candidates’ votes is significant. The winning margin was 4, 132 votes. The evidence suggests 4, 816 at the lowest and an estimated 7,366 ballot papers or votes at the highest not properly scrutinized and allocated to the correct candidate or tray. In addition to that, there were many instances of ballot papers going into Dilu’s tray, votes either belonging to Onglo or other candidates.  If the actual or estimated figures were in evidence, that will certainly decrease the number of votes going to Dilu and increase the votes going to Onglo. Hence, the final tally and eventual winning number of votes and margin would significantly be further affected and ultimately, the election outcome for the KGO Seat.  

(d)	Scrutiny at counting of ballot papers or votes and final declaration

185.	The final matter I turn to is the scrutiny of counting and the final declaration. All Counsels have assisted me with their respective submissions that address this issue. I am most grateful for their respective submissions, which I will refer to relevantly in the course of my decision on this point.

186.	As learned counsel for Onglo submits, Part XIV of the Organic Law, ss. 147 - 172 makes a comprehensive provision for scrutiny at elections. I accept learned Counsel’s submission also that this demonstrates that scrutiny in elections is a most important matter. This is obvious from the wording in each of the relevant provisions. Section 147 makes scrutiny mandatory by stating: “The result of the polling shall be ascertained by scrutiny.” Section 150 grants a candidate in an election the right to appoint scrutineers up to two “but only one such scrutineer …may be present in the counting centre at any one time during the scrutiny.” Section 151 provides for the way scrutiny should be conducted and when. It directs counting to commence as soon as voting in the relevant electorate is completed.  Subsection (b) authorises “scrutineers appointed under Section 150 and any persons approved by the officer conducting the scrutiny” to be present”. Then most importantly the next subsection (c), requires: “all the proceedings at the scrutiny shall be open to the inspection of the scrutineers.”

187.	Section 154 then prescribes the scrutiny process as follows: 

“(2) The electoral officer conducting the scrutiny shall, in the presence of a presiding officer, poll clerk or an officer and of such authorized scrutineers as choose to attend and other person approved by the Returning Officer–
(a) 	open all ballot-boxes received from polling places within the electorate; and
(b) 	reject all informal ballot-papers, and arrange the unrejected ballot-papers under the names of the respective candidates by placing in a separate parcel all those on which a first preference vote is indicated for the same candidate; and
(c) 	count the first preference votes given for each candidate on all unrejected ballot-papers; and
(d) 	make out and sign a statement (which may be counter-signed by the presiding officer, poll clerk or officer present and, if they so desire, by such scrutineers as are present) setting out the number of first preference votes given for each candidate, and the number of informal ballot-papers; and
(e) 	place in a separate parcel all the ballot-papers which have been rejected as informal”.

188.	As the learned Counsel for Dilu submits, s.151 of the Organic Law is complemented by ss. 5 and 6 of the Election Regulations.  These provisions authorise ROs to be in charge of the scrutiny process and if need be, with the assistance of AROs. They are charged with the responsibility to conduct the scrutiny process as directed by the relevant provisions of the Organic Law and the Regulations. 

189.	These provisions and the question of proper scrutiny have been the subject of many cases in the past.  Learned Counsel for Onglo provides a list of some of them.  One of the cases cited is the decision of his Honour Gavara-Nanu J in Kapi v. Electoral Commissioner of Papua New Guinea (2003) N2327. There, his Honour considered the question of whether a lawful declaration was made when a candidate was declared winner by the RO without ascertaining the results before the scrutineers of all the candidates. In nullifying the declaration and election of Hon. Sam Abal as the member elect for the Wabag Open Seat his Honour held:

“The conduct of the scrutiny process is a public affair, therefore it must be done fairly and openly for the scrutineers to see and inspect. That is the intent and the purpose of s.151.

Section 175 of the Organic Law empowers the Returning Officer to declare the result of the election, as soon as the result of the elections is ascertained. This in my opinion refers to the result being ascertained after all the scrutiny process is properly concluded after all the votes cast in all the boxes allowed in the scrutiny process are counted and the result is ascertained in the presence of and by the general consensus of all the scrutineers present in the counting centre. This is significant because the scrutineers have the right to know on behalf of their candidates the result of the election, before it is declared by the Returning Officer. Without this, there cannot be any ascertainment of the result of the election and for which no valid declaration can be made.” 
(Underlining supplied)

190.	Los J., in In Embel v. Kopaol (2003) N2460, added:

“Scrutinizing is a compulsory process required under Part xiv of the Organic Law. Section 147 begins with a very strong command that ‘The result of the polling shall be ascertained by scrutiny’. It is a must and the Organic Law prescribes no other way than scrutiny. Section 149 commands the returning officer or his assistant to ‘conduct scrutiny at the counting centre’. Section 150 of the Organic Law allows a candidate to be represented at the scrutiny. And ‘all the proceedings at the scrutiny shall be open to the inspection of the scrutineers’. These are not just nice words. These words import real meaning to the election process at the counting stage. First each candidate must be allowed to be represented at a distance where he (or she) must be able to see and observe the preliminaries, the counting and the declarations all the necessities that are commanded by section 151 of the Organic Law.”
(Underlining supplied) 

191.	Later in Toap Hoap v. Peter Welawe Iwei (2008) N3420, Sevua J., ordered a recount of votes after finding a removal of about 240 disputed ballots from the petitioner’s tray without scrutiny. Those votes were material and would likely affect the result of the election. In so doing, his Honour pointed out the public policy behind the requirement for ascertaining the result of an election by scrutiny in these terms:  

“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.”
(Underlining supplied)

192.	In the same year, Cannings J in Wingti v. Rawali (2008) N3286, ordered a recount after noting the law regulating the process on objection of ballot boxes for scrutiny was not followed. From the headnote of the judgment his Honour 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.
(Underlining supplied)

193.	Another case coming closure to the present case is, in the matter of Kuli v. Apamia (2013) N5275.  There, his Honour Makail J ordered a recount of the ballot papers for the electorate after noting there was deliberate misplacement of votes, and the counting room was tense with threats and intimidation that made proper counting of ballots impossible.

194.	In the present case, based on the evidence before the Court, I accept learned Counsel for Onglo’s submission that the whole counting process was the worse form experienced in the country to date. This case has now added another bad illegal, improper and unacceptable practice at counting of ballot papers in PNG elections.  For the first time, we have a case of:

(1)	A person who is admittedly related tribally to the winning candidate (Dilu) was appointed RO.

(2)	The RO appointed more of his and Dilu’s tribesmen as counting officials.

(3)	The RO appointed extra counting officials from his and the winning candidate’s tribe and allowed to roam around freely in the counting room.

(4)	The extra counting officials obstructed the views of the Onglo scrutineers, issued threats, intimidation and otherwise interfered with them and eventually, teamed up with Dilu’s scrutineers to attack the Onglo scrutineers in the counting room.

(5)	The scrutineers of Onglo were seriously injured from the attack and forced out of their role at the final elimination stage by Dilu’s scrutineers working in association with some of the counting officials.

(6)	The RO did nothing to stop the attack on the Onglo scrutineers and before that, the kicking of Onglo’s ballot box by a counting official, Siwi Kawage.

(7)	The assault on the scrutineers was set into motion by extra counting officials who were allowed into the counting room by the RO with no task to perform.

(8)	Despite the attack on the Onglo scrutineers, counting was allowed to continue both during and after the fight without the scrutineers of the only other person still in the race, Onglo.

(9)	The counting was promptly concluded, and declaration of the winner was made without any proper preliminary and final quality checks.

195.	Counsel for the Commission submits the appointment of scrutineers is the responsibility of individual candidates. He points out that s. 150(1) of the Organic Law leaves it as an option to a candidate by the use of the word “may”. If he exercises his right to appoint a scrutineer, that scrutineer “may” be present at scrutiny (s. 151(b)). A candidate is not forced by law to appoint and send in a scrutineer to the counting of votes. The scrutineer is also not forced by law to attend when he is appointed. It is a choice for both the candidate and the scrutineer.

196.	Counsel goes on to ask, if a candidate decides not to appoint a scrutineer or is unable to appoint a scrutineer, should the counting not resume and progress? He submits, that is not the scheme of scrutiny required under 151(b) of the Organic Law. Mandatory time periods for elections are set by the Constitution and the Organic Law. When the mandatory commencement time for counting falls due, counting must proceed. A candidate may appoint a scrutineer and that scrutineer may opt to attend. However, counting must proceed. It is clear from the use of the word “may”, that counting can proceed with or without the presence of an appointed scrutineer. If the legislator had intended that counting could only proceed with the presence of scrutineers, it would have said so and if that was so, there would be chaos.

197.	Turning to the current case, Counsel submits, there is no dispute that after the fight broke out, the petitioner’s scrutineers were not present for the rest of the last elimination of candidate Tobias Kulang until declaration. There is also evidence from both the petitioner’s scrutineers and the RO that the RO did approach both scrutineers to return to counting, but due to injuries they decided not to attend and that replacement scrutineers were to attend for the petitioner. Both were given their mobile phones, and both called the petitioner. Both scrutineers gave evidence that they came to the counting centre by police escort in the morning. It is possible that the petitioner had influence on the police to assist as he was the Police Minister (paragraph 4 of his affidavit “Exhibit G”.  The replacement scrutineers could have come in with police escort under the same arrangements in the morning. 

198.	Counsel continues, scrutineer John Kaima even gave evidence that the Returning Officer and the whole counting centre were waiting for them to arrive in the morning before any counting could resume. When they arrived, everyone clapped and cheered for them and counting commenced thereafter at around 10.00am. This evidence attests to a Returning Officer who was extending time to allow for their presence at counting and was not partisan at all.

199.	Ultimately, learned Counsel submits, the RO has not made any error of law in resuming counting without the petitioner’s scrutineers under the circumstances. The first respondent’s scrutineers were there at counting. The petitioner had more than two hours to arrange for a scrutineer to attend. He chose not to, and he is clearly entitled to do that by virtue of s.150 of the Organic Law. There is no error on the part of the RO.

200.	With respect there are about 5 problems with this submission. Firstly, the Onglo scrutineers were seriously attacked and traumatized by the Dilu scrutineers with the support of the extra counting officials, like Siwi Kawage who were allowed into the counting room by the RO.  This was the last of the steps taken by Dilu’s supporters some of which were in the counting room, now executing threats of such harm and injury the scrutineers endured in the days before and on the final day, 06 August 2024. That attack resulted in the Onglo scrutineers sustaining serious physical injuries to their face and eye area such that they were in no position to resume their duties. Their photographic evidence of the injuries they respectively sustained bears witness to that.

201.	Secondly, the scrutineer’s own testimony is that they were in no position to resume duties as they were badly injured.  They were waiting in a police vehicle (see John Gende Kaima’s affidavit) for safety whilst waiting for Onglo to send his replacement scrutineers. The seriously injured scrutineers decided not to return to the counting as they were seriously injured and were in no position to perform their respective functions with their assailants and aggressors closely around them. The RO in his evidence said they were in the vicinity of the counting area, so he decided to continue with the counting.  This is not the same as being at the counting center providing scrutiny on behalf of their candidate.  Also, this is not the same has a scrutineer choosing freely not to turn up for scrutiny on behalf of his candidate or the candidate freely choosing not to appoint any scrutineer.

202.	Thirdly, the RO said nothing about giving Onglo any time, let alone 2 hours to send in his replacement scrutineers.  Both Dilu and the RO or anyone for the respondents did not testify as to how easy and safe it was for Onglo to send into the counting room his replacement scrutineers.  Given the threats of the previous days now actioned on 06 August 2022, against the Onglo scrutineers and Dilu’s threatening supporters present at the counting venue both inside and outside, how was it possible for Onglo to quickly send in his replacement within a matter of minutes or even a few hours?  It would be reasonable to expect that could not be done that easily given the serious security threat worsened by the actual attack on Onglo’s scrutineers. 

203.	Fourthly, there is no dispute that the PPC and PEM asked the RO to suspend the counting to give Onglo sufficient opportunity to find and send in replacement scrutineers. This the RO rejected and decided to allow counting to continue. Clearly, this was not a case of the Onglo’s scrutineers walking out of their duties in circumstances where there were no security and safety issues.  No one would have easily volunteered to replace the seriously attacked and injured scrutineers out of fear for their own lives and or safety.  Hence, this required more than a few minutes or 2 hours as suggested by Mr Williams for Onglo to find willing people to replace his seriously attacked and injured scrutineers, Kama and John.  If the RO went by the PEM and the PPC’s advice, the police, if required, would have assisted with possible promise of safety and security to enable willing persons to be Onglo’s replacement scrutineers.  The RO went against that advice and decided to proceed with the counting without any scrutiny of the continuation of the counting and declaration of Dilu as the winner of the election.

204.	Fifthly, the voluntariness attending the appointment of scrutineers by candidates and their scrutineers attending polling and counting, are there under all normal circumstances.  However, when a candidate’s scrutineers are threatened and eventually, they are seriously attacked by an opponent’s scrutineers acting with the support of counting officials is a totally different situation requiring a different consideration, if a candidate’s duly appointed scrutineers are not there to continue scrutiny of the counting and final declaration of an election. The circumstances leading to the nonattendance needs to be carefully considered. Then only upon all efforts made with opportunity and facilities accorded to the candidate whose scrutineers have been attacked and removed from the counting room to appoint his replacement scrutineers and he fails to appoint any replacement; only then could an RO lawfully proceed to count without scrutiny by that candidate.  This is not what happened here. 

205.	In the present case, may be Dilu and his supporters had prior advice in terms of the submissions made by learned Counsels for the respondents.  From the actions of Dilu’s supporters surround the counting venue from the outside they were doing their best by using threats and intimidation to get the Onglo scrutineers not to attend the counting center and conduct scrutiny on behalf of Onglo. Falling to achieve that from the outstanding, it got carried into the counting room this time, executed by counting officials and Dilu’s scrutineers upgraded to include even an offer of K50,000.00 in bribery. That failed to get the Onglo scrutineers to leave their post.  Having failed in all these attempts, the Dilu scrutineers and his supporting counting officials from his and that of the RO’s tribe resorted to violence and forcefully removed the Onglo scrutineers out of the counting room.  Consistent with that, the RO, did not grant Onglo any reason time and opportunity to send in his replacement scrutineers.  He instead despite advice from the PPC and the PEM, continue to count without scrutiny.  There is no voluntary opting out of continuation in scrutiny by Onglo and or his scrutineers. 

206.	Finally, the RO and others waiting for the arrival of the Onglo scrutineers, is an event that took place at the commencement of the final elimination counting on 06 August 2022, if that is what happened. That is not what happened after the physical attack and removal of the Onglo scrutineers from the counting room. There is no evidence of the counting being suspended and everyone involved waiting for Onglo to appoint his replacement scrutineers and such scrutineers entering the counting room and counting continuing with their scrutiny.  The opposite is the case.

207.	I reiterate the cases cited at paragraphs 189 to 193 above’s emphasis on the importance and the public policy behind the requirement for scrutiny at counting. On my part I say the importance of ascertaining election results through scrutiny cannot be overstated. Scrutiny refers to the careful examination and verification of election processes and outcomes to ensure accuracy, fairness, and transparency. In my view there are 6 key reasons why scrutinizing election results is most important.

208.	Firstly, scrutiny helps to verify that an election was conducted in a fair and impartial manner. By examining the results, any irregularities or misconduct can be identified and addressed, ensuring that the outcome truly reflects the will of the voters.

209.	Secondly, elections are the bedrock and foundation of democracy. The legitimacy of governments is dependent on the integrity of the electoral process. Scrutinizing election results helps to maintain public trust in the democratic system and ensures that the elected representatives have the mandate to govern.

210.	Thirdly, scrutiny plays a vital role in detecting any errors or fraudulent activities that may have occurred during the election. By thoroughly examining the results, discrepancies in voter registration, ballot counting, or other irregularities can be identified and rectified.

211.	Fourthly, in some cases, election results may be contested or disputed. Scrutiny provides a mechanism to address these grievances by allowing for a thorough examination of the evidence and ensuring that the outcome is based on accurate information. 

212.	Fifthly, by subjecting the election process to scrutiny, transparency and accountability are enhanced. It allows for independent observers, political parties, and other stakeholders to participate in the verification process, promoting transparency and reducing the chances of manipulation or corruption.

213.	Finally, when election results are scrutinized and verified, it instills confidence in the electorate. Citizens are more likely to trust and accept the outcome when they know that the results have undergone rigorous examination and are backed by evidence.

214.	In short, scrutinizing election results is of paramount importance as it upholds the principles of fairness, democracy, and accountability. It ensures that the electoral process is transparent, accurate, and credible, thereby fostering public trust in the democratic system of government. Returning officers, AROs and other counting officials who themselves have integrity and are impartial and who fully understand and appreciate the importance of the scrutiny of election results will readily allow for any grievances, or irregularities or misconduct to be identified.  Then address them and resolve them based on accurate evidence or information before them.  They will also ensure the counting room set up and all activity within the counting room is safe and secure for all candidates’ scrutineers, such that, they would be permitted to freely raise any irregularity, misconduct or any other issue they might have, without any fear or favour.

215.	In the present case, the evidence demonstrates a complete failure to meet the purpose and objective of scrutiny at the counting of the KGO Seat and the eventual declaration.  During the counting before the Onglo scrutineers were assaulted and driven out, they were not permitted to freely raise any issues they had.  On seeing votes going into the wrong trays for example, they tried to raise them only to receive no response from the RO or the ARO working with him.  Instead, they received suppressive negative and threatening responses from the extra counting officials permitted into the counting room by the RO.  In other words, the requirement for scrutiny in this case was seriously breached and Dilu was declared the winner of the election without proper scrutiny.  To use the words of my brother Gavara-Nanu J in Kapi v. Electoral Commission (supra), the result of an election is often “ascertained in the presence of and by the general consensus of all the scrutineers present in the counting centre” which was not done in this case. 

216.	In my view, the failure to properly ascertain the results of the election for the KGO Seat not only breached the laws on scrutiny but also amounted to a serious infringement of the people’s right under s. 50 of the Constitution to either stand for an elective office or vote for a candidate of their choice. This is one of the most fundamental, sacred and special rights of voting age citizens. It is otherwise known as suffrage. Suffrage is a fundamental democratic principle that ensures the participation of citizens in the political process. It grants individuals the ability to choose their representatives and have a say in the decision-making process of their nation. The right to stand for office allows eligible citizens to run as candidates for various positions in government, such as president, senator, or member of parliament. This right also ensures that individuals with diverse backgrounds and perspectives can actively participate in shaping the policies and laws of their country. At the same time, this fundamental and special right enables citizens to express their preferences and select the candidate of their choice. By casting their vote, citizens have the power to influence the outcome of elections and determine the individuals who will hold public office. That is why in any democracy this special right ensures that the government represents the will of the majority of the people and qualifies to be a government for and by the people.

217.	This right is an essential component of a functioning democracy, which allows citizens to actively engage in the political process and have a say in the governance of their nation. In PNG, this right gets exercised once every 5 years. In developed democracies like Australia the right is exercised every 3 years.  It would therefore be a serious attack on democracy and infringement of the citizens’ special rights and the commission of a serious offence for anyone to take any action or inaction that interferes with the free exercise of the special citizens only right.  Once the right is exercised at the polls, that should be protected and properly ascertained through proper scrutiny, counted and allocated to the chosen candidate and thereby allow the citizens to have a real say on the election of a candidate preferred by the majority free of corruption, bribery or any form of undue influence. Any candidate and his or her supporters who fail to observe the need for free and fair elections and try to help themselves, through threats, intimidation, violence and such other illegal means, have no place in a democratic country like ours.  As such, they cannot be allowed to gain from such actions. 

218.	With this, I turn to sub-question (4) of the main Question 1, which was left to be dealt with after all the factual questions and related are determined.

(8)	Question 1 (4) - Was the scrutiny and counting for the KGO Seat compromised? 

219.	Based on all the foregoing, the answer to the question without any hesitation is a “Yes”. In short, I have found the ascertaining of the results of the KGO Seat through scrutiny and counting was seriously compromised from the outset. That happened with the appointment of RO, a tribal uncle to Dilu. He then extended that compromising act by appointing more counting officials from his and Dilu’s Narku tribe. This was then carried into the counting room with extra counting officials some of whom were from the Narku tribe, who were allowed by the RO to roam around freely in the counting room issuing threats and intimidation against the Onlgo scrutineers. The Onglo scrutineers were prevented by threats, intimidation and other illegal means from exercising their rights as scrutineers to raise objections in respect of irregularities, errors and omissions they identified during the counting process. Then ultimately, they were physically attacked by Dilu’s scrutineers and his tribesmen counting officials and driven out of the counting room. All this happened after Dilu’s supporters surrounding the counting center failed to prevent the Onglo scrutineers from getting into the counting room, through threats and intimidation. These actions of the RO and the other counting officials resulted in a failure to properly scrutinize and allocate to the correct candidate or exhaust ballots a total of 4, 816 ballot papers at the lowest and an estimated 7,366 ballot papers at the highest. If the many other unnumbered votes get added to these figures that would further increase the number votes involved. This is significant, given the winning margin of 4,132 votes.
 
220.	Our people and indeed no democracy can tolerate this kind of conduct. Certainly, the Commission the Constitutional custodian and manager of our electoral system cannot condoning and tolerating the kinds of conduct or actions exhibited by the RO and the other RO appointed counting officials inside the counting room and the many Dilu supporters acting from outside the counting venue. Instead, of defending such a seriously compromised election outcomes, the Commission should be readily refusing to recognize such outcome it should be either direct a recount or declare a failed election and go for a fresh election. If the Commission readily came to such decisions in cases like the present, it would be drawing a clear line between what is acceptable and what is unacceptable in an election.  In so doing, it would contribute to instilling integrity, honour and respect into the whole of the election process, the final of which, is ascertaining of the results by scrutiny and declaration of a clear winner, through a process that is impartial, fair and transparent and because of that, accepted by all starting with the losing candidates.

C. 	THE RELIEFS 

221.	Before getting to the final orders that must be made, there is one final matter I must turn to. That is on the reliefs the Court can grant on a successful petition.  All learned Counsels submissions are very brief. Counsels for the respondents without more submit for a dismissal of the petition and have left it at that. On the other hand, learned Counsel for Onglo without more submits for an upholding of the petition and essentially a grant of the orders sought in the petition. These submissions are obviously, unhelpful. All learned Counsel failed to assist me with any learned or considered submissions on how this Court should exercise the discretionary powers it has under s. 212 of the Organic Law, especially when we have s.217 of the Organic Law and the evidence before the Court of the many illegal actions in and around the counting venue which seriously affected the election outcome. I am thus proceeding unaided by all learned Counsels.

(a)	The law 

222.	Section 208 (b) of the Organic Law requires a petitioner to plead the reliefs sought.  Section 212 of the Organic Law provides for the kinds of relief a Court can grant. This provision in relevant parts empowers the Court in these terms:

“212. POWERS OF COURT. 
(1) 	In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things -
…
(d) 	order a re-count of ballot-papers in an electorate; and 
…
(f) 	declare that a person who was returned as elected was not duly elected; and 
(g) 	declare a candidate duly elected who was not returned as elected; and 
(h) 	declare an election absolutely void; and 
(i) 	dismiss or uphold a petition in whole or in part; and 
(j) 	award costs; and 
…
(3) 	The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. 
(4) 	Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
(Underlining supplied)

223.	Before proceeding any further, I note this provision is not in mandatory terms but crafted in wide discretionary terms. This is apparent from the use of the words “and may, amongst other things” in s.212(1) and reinforced expressly by s.212(3). Even s. 212(4), opens with the phrase “Without limiting the powers conferred by this section”.  It is settled law that, before there can be any granting of the reliefs under 212(1)(d)(f)(g) and or (h), there must first be a finding under s.218(1) of the Organic Law that the conduct, error, omission, illegality or irregularity complained of did affect the result of the election.  Consistent with that law, I already found that the conducts of the scrutineers and supporters of Dilu, the RO and other counting officials appointed by him, did affect the result of the KGO Seat election result. Proceeding on that basis, I now need to determine, what is an appropriate relief in the circumstances of this case.  

224.	The main relief sought by Onglo in his petition is a recount of the votes cast for the KGO Seat in 2022NGE.  One of the cases on point that discusses the relief of recount is the Supreme Court decision in, In Yagama v. Yama (2013) SC1244. There, the Supreme Court on review considered a decision of the National Court that ordered a recount. The circumstances leading to the recount order was that, at the counting, the RO declared a “failed election” and stopped further counting. The Electoral Commission responded with the appointment of two AROs and an acting RO. However, the instrument appointing the acting RO was not gazetted, did not specify the duties to be performed and was not served on the delegate. The National Court found the errors in relation to the appointment of the acting RO, combined with the fact that the counting continued in the absence of scrutineers and that no Form 66B record of the results of the count was prepared, justified an order for a re-count.

225.	Yagama with the support of the Electoral Commission (Applicants) argued mainly before the Supreme Court that, the exercise of power by the Commission to appoint the RO and AROs was an administrative decision made in an emergency. It was, therefore, not a subject for determination in an election petition, but judicial review. Further, they argued the question of whether officers were properly appointed did not affect the result of the election return. Additionally, the Applicants argued, having dismissed the entire grounds of the petition, except for two grounds which were partially upheld, and having noted that the errors of the electoral officials should not invalidate the election, the trial judge fell into error when he ordered a recount under s.212 (1) (d) of the Organic Law. 

226.	In the National Court, the question of appropriate relief in the circumstances of the errors the court had found was a matter the trial Court considered. After considering the options available to the Court under s.212 (1) of the Organic Law, the Court decided to order a recount. 

227.	The Supreme Court noted, the Organic Law is silent on what consequences should follow when errors are committed by electoral officers in the kind of the case that was before the Court. In that vacuum, the Applicants submitted the petition should have been dismissed. 

228.	After considering the parties arguments, the Supreme Court decided to dismiss the Applicants’ arguments. In arriving at that decision, the Supreme Court noted the fact that the National Court has a discretion under s. 212 (3) to exercise any of the powers given under s.212 (1). The Court than said reading s. 212 together with s. 217 of the Organic Law, the trial Judge was “correct in preferring the recount relief under s. 212(1) (d).”  and added “Section 217 behoves the National Court to be guided by the substantial merits and good conscience of each case.”

229.	The Supreme Court then went on to emphasize the application of s. 217 of the Organic Law in this way:

“59.	The statutory suppleness of s. 217 resonates the requirement that the Court be guided by ‘just and sufficient’ grounds (s.212 (3)) when exercising its powers under s. 212 (1) and s. 222 of the Organic Law which prohibits legal representation of parties, except with consent by the other party, or by leave of the Court. The intention of the Parliament is clearly that an ordinary citizen, aggrieved by the result or return of election should be able to come to Court without the assistance of a lawyer to file and prosecute an election petition. 

60.	The crucial consideration is however, that the National Court is not devoid of the power to make the orders it did in the particular circumstances of this case.”
(Underling supplied)

230.	The Court then noted with approval that, the learned trial judge reverted to ss.212, 217 and 218 of the Organic Law to guide his discretion as to the ‘just and sufficient’ relief (s.212(3)) and guided by ‘substantial merits and good conscience of each case’ (s.217). Thereafter, the Supreme Court went on to comment:

“In all the circumstances of this case, the serious and important errors cannot be simply swept under the carpet as the applicants are contending. The illegal and unfair acts of the Electoral Commission and its electoral officials cannot be condoned by dismissing the whole petition. The proper course logically and for convenience of time and costs to the State and all stakeholders is to reach a finality in the election process in the most convenient and cost-effective way. This, in my view, is where the application of s.217 is most relevant and applicable.”
(Underlining supplied)
 
231.	Finally, the Supreme Court pointed out the effect of an order for recount in these terms:

“In this case, the orders for recount only affected the counting aspect of the election petition. It does not affect the whole election process unless the recount is completed, and the matter returns to court for formal and final endorsement and orders.” 

(b)	Applying the law to the present case

232.	In the context of the case before me, I discussed the application of the provisions of s.217 of the Organic Law at paragraphs 114 to 129 above, which I repeat here.  Applying the provisions of s.217, I made findings of fact on the evidence before the Court.  Then based on the facts I found amongst others that the voting age citizens’ only special right under s.50 of the Constitution was breached by a serious compromise of the process of scrutiny through which a voter’s vote is scrutinized and if all is in order, correctly allocated to the chosen candidate.  I reiterate, the right under s.50 is incomplete and rendered useless if a voter’s casted vote is not properly scrutinized through the scrutiny process and correctly allocated to the candidate chosen by each voter through their ballot. Those who fail to properly scrutinize and allocate a voter’s ballot in the way described will be committing the serious offence of defrauding a voter’s choice, have that choice denied and seriously breach s.50 of the Constitution and the winner thus declared a product of fraud to unlawfully gain.  For it is at the scrutiny stage that every ballot or vote casted is examined, and if all is in order, processed and allocated to the candidate chosen by the voter. A candidate who gets the required majority of votes fairly and openly through an impartial, fair and open scrutiny process can be properly and legally declared the winner. Such a declaration would qualify to be one arrived at with integrity and correctly represents the will and mandate of the electorate. Against such a declaration, there would be no election petition.  That would be the case because, the proper scrutiny process would have allowed for all objections related to proper polling, marking of ballot papers, proper security and the transportation of the marked ballot papers to the counting room to be raised without fear or favour.  A proper scrutiny process would have then allowed for a consideration of each of the objections and other issues raised on their merits and decision made based on the relevant evidence or information presented at the counting center.  Consequently, there would be no election petition because all of the issues would have been raised and resolved at the scrutiny and counting of votes. 

233.	In the present case, more than 4, 816 at the lowest and more than 7,366 at the highest, of votes or ballot papers have not been properly scrutinized. These number of voters right to have their choice considered and allocated to the candidate of their choice has been hijacked or miss allocated fraudulently. Instead of their choice being recognized, respected and allowed to have their say in the outcome of the election, they were denied that right which amounts to a serious breach of their right under s.50 of the Constitution.  This is in addition to the serious criminal offence of defrauding their votes and the other serious offences committed at the counting center on 06 August 2022, such as the serious physical attack and driving out of the Onglo scrutineers from the counting room and counting proceeding without any scrutiny by Onglo, the only other person remaining in the race. Until the process of a proper scrutiny through an impartial, fair and open process is conducted again for the KGO Seat and a clear winner of the election is produced impartially, openly and with integrity, the declaration of Dilu as the winner of the election remains fraudulent, illegal, improper, unfair and without integrity.  This brings into operation the well settled principle of law that no person can be allowed to gain from criminal, or otherwise illegal, improper, unfair and questionable conduct: See PNG Deep Sea Fishing Ltd v. Luke Critten (supra) and Rimbunan Hijau (PNG) Ltd v. Ina Enei (supra). Dilu can, therefore, not correctly and legally be allowed to continue to hold office or hold himself out as member elect or representative of the people of KGO electorate.

234.	I have given serious consideration to what should be an appropriate remedy or relief in the circumstances of this case.  In so doing, I have allowed myself to be guided by the provisions of s.212 (1), (3) and (4) and s.217 as well as s. 218 (1) of the Organic Law as discussed above together with the decision in Yagama v. Yama (supra) as to how the discretion vested in this Court should be exercised.  

235.	Applying the law as discussed above to the circumstances of this case, I note Onglo has the petitioner, is praying for an upholding of his petition. He then mainly seeks a recount of the votes from elimination exclusions 19 to 22 of candidates respectively, Samuel Kupo, Peter Kama, Stanley Enn Alphonse, and Tobias Kulang.  There is no prayer for a declaration of nullity or voiding of Dilu’s election to get to the relief of an order for a recount.  As already noted, none of the learned Counsels assisted the Court with any relevant, learned and consider submissions on this aspect. But I do note that as the Supreme Court said in Yagama v. Yama (supra), lawyers are precluded by s. 222 of the Organic Law except with the consent of the parties or with leave of the Court. This means I need not depend on lawyers.  As observed by the Supreme Court, the clear intention here is Parliament saying, “an ordinary citizen, aggrieved by the result or return of in an election should be able to come to Court without the assistance of a lawyer to file and prosecute an election petition.” The Court is then at liberty to consider the evidence adduced, the reliefs available under s.212 (1) of the Organic Law and grant whatever relief the circumstances or the facts before it dictates and not necessarily be restricted to the relief sought.

236.	The facts before me in the present case, and for the reasons given above, an order that the declaration of Honourable Muguwa Dilu as the duly elected member of Kundiawa Gembogl Open Electorate in the 2022NGE is null and void with immediate effect and an order for recount under proper scrutiny is warranted. 

237.	Then after having arrived at the above decision, I have also given serious consideration to the provisions of ss.103, 104 and 106 of the Constitution. This I did in the light of some decisions in past cases where members of Parliament were allowed to continue to be in office pending a Court ordered recount.  I decided against making such an order for 4 main reasons. Firstly, I note the main reason given for such decisions has been the need for continuity in representation of the people of the relevant electorate in Parliament. This cannot be an application across the board as a matter of course.  Each case must be determined on its on facts and merit. In some cases, the member whose election is to be recounted and his supporters may be completely innocent. In such a case, it would only be fair and reasonable for the member to continue to hold office.  But in other cases, as in the present case, where the scrutiny process has been seriously compromised, the beneficiary of such a compromised outcome cannot be allowed to continue to benefit by being allowed to continue to hold office. 

238.	Secondly, the lack of continuous representation needs to be seriously compared with the fact that the member concerned has been declared unlawfully with the greater risk of an abuse of office and misappropriation of public funds, especially if the member concerned knows he is not going be declared the winner in the Court ordered proper recount. Allowing a member to continue to hold his or her seat in Parliament in circumstances like the present, would not only go against established principle of law that, no one can be allowed to gain from illegal, criminal or other improper conduct but also, undermine the decision of the Court of Disputed Returns finding an illegal return and ignore the fact that the voters rights under s.50 of the Constitution has been breached. If anything should be done pending the outcome of recount, should be orders to protect and enforce the citizens’ rights under s.50 of Constitution by keeping the person who was wrongly declared winner out of the people’s office until the Court ordered recount is completed and a clear winner is ascertained through an impartial, fair and open process of scrutiny and counting of all the votes. 

239.	Thirdly, at this very point in time, several seats in Parliament are vacant. That has been the case for some time. No urgency is being shown by both the government and the Commission to hold by elections and have those seats filled. Those electorates have been without a representative in parliament for some time now by reason only for the Commission and the National Government failing to give them a by election. These vacancies and lack of representation are not due to the member elect and his or her supporters defrauding the voters as was done in this case. In one electorate at least, the member elect died whilst in office. Given these vacancies, what more compelling reason is there for the member elect in the case before me, whose election has been found to be arrived at illegally through a seriously compromised scrutiny process, to be allowed to continue in office in the interim, pending the recounting? There is none. 

240.	Fourthly, I note the provisions of the Constitution in question covers the very matters they provide for. There is no specific authorization either in the Constitution or the Organic Law, quite rightly so, for members of Parliament to continue to hold office in cases where their election has been found by a Court of Disputed Returns to be null and void and has ordered a recount. Allowing a member who has unfairly gained in being declared the winner of a compromised scrutiny will again be allowed to gain again by allowing him or her to continue in office compared to all other candidates who contested the seat with him or her and have lost out.

D. 	THE ORDERS 

241.	Based on the forgoing reasons the Court makes the following orders:

1.	The Petition is upheld. 

2.	The declaration of Honourable Muguwa Dilu as the duly elected member for the Kundiawa Gembogl Open Electorate in the 2022 National General Elections is declared null and void with immediate effect.

3.	Pursuant to Section 212 (1)(d) of the Organic Law there shall be a recount of votes cast for the Kundiawa Gembogl Open Electorate in the 2022 National General Elections from exclusion 19 to 22 of candidates Samuel Kupo, Peter Kama, Stanley Enn Alphonse, and Tobias Kulang respectively.

4.	For the purposes of the recount, the Second Respondent shall appoint a Returning Officer other than Mr. Michael Gand Palma and such other Counting Officials other than those appointed by Michael Gand Palma and in any case from outside the Simbu Province who shall conduct the recount under the supervision of the Registrar of the National Court.

5.	The recount shall be conducted in Goroka, Eastern Highlands Province within 30 days from today.

6.	The Electoral Commissioner with the assistance of the Police shall immediately secure the ballot boxes belonging to the Kundiawa Gembogl Open Electorate for the 2022 National General Elections and have them transported into Goroka within 14 days of this order.

7.	Once the ballot boxes are transported to Goroka, they shall be kept in a safe and secure place under Police protection or guard.

8.	The Registrar of the National Court shall present a report of the recount duly certified by the Returning Officer of the recount back to the National Court within no later than 14 days after the completion of the recount.

9.	On the provision of the report under term 6 of these orders, the Court shall provide copies of the same to the parties and the Court will then reconvene on a date to be fixed by the Court.

10.	Unless there are real and serious issues on the results of the recount, the Court shall be at liberty to declare a winner of the election based on the report under term 6 of these orders.

11.	If there are real and serious issues on the results of the recount, the Court shall receive such evidence and submissions as are necessary and grant such remedies as appear appropriate including an order for a by-election, if need be.

12.	The Respondents shall pay the costs of the Petitioner in equal shares to be taxed, if not agreed. 

13.	The security deposit of K5, 000.00 held in the National Court Trust Account, be refunded to the Petitioner.

E.	ENFORCEMENT OF S. 50 OF THE CONSTITUTION 

242.	I will now turn to the question of enforcement of Constitution s.50 right under s.57 also of the Constitution.

1.	The nature of the invitation 

243.	 Having formed a preliminary view that, this was a case of a repeat breach of s.50 of the Constitution by the Commission through ROs and AROs, it appoints, other counting officials and others, I invited all learned Counsels to address the Court on enforcement of that provision pursuant to s.57 also of the Constitution.  Specifically, I invited all Counsels to address the Court on the following questions:

(a)	Should the Electoral Commission be ordered to update each electorate’s common roll and have them ready at least 1 year before the next elections?

(b)	Whether the Electoral Commission should be ordered to introduce and use a biometric voting system (BVS)?

(c)	Pending the implementation of a BVS, should the Electoral Commission deploy CCTV recordings at all polling and counting venues? 
 
2.	Submissions of Counsels and response in brief

244.	All Counsels assisted me with their respective submissions for which I am most grateful. The respondents learned Counsels make two main submissions.  These are:

(a)	There is no evidence of a breach of s.50 rights to enable the Court to exercise its powers under s.57 of the Constitution. But if the Court wants to exercise those powers it must conduct a hearing in another proceeding.

(b)	The question of an introduction of a BVS and use of CCTV recordings, are policy questions that do not fall into the domain of the judiciary but the executive government.  Given that, they submit, I should refrain from making any orders for such introduction and use.

245.	For reasons I will shortly get into, I dismiss both submissions because: (a) there is evidence of breaches of s.50 of the Constitution as found above; and (b) the policy decision on the use of a BVS and CCTV has already been made through legislation, namely the Electoral Law (National Elections) Regulations 2007. Even if that were not the case, this Court has unlimited jurisdiction under s. 57 and s. 155(4) of the Constitution to make such orders or issue such directions as a necessary to protect and or enforce a human or Constitutional right such as s.50 of the Constitution, whether there exists a policy decision or not.

246.	 Learned Counsel for Onglo submits in favour of the Court making appropriate orders under s.57.  However, in his submissions, he included a relief I did not ask Counsel to assist me with.  The relief sought was to have Dilu’s declaration as member elect nullified and make an order in favour of Onglo.  I dismissed that submission during the hearing of the Counsels on the above matters as it was not part of the invitation. 

3.	On the merits of the case

247.	I start first with that which caused me to invite the parties to address the court on the questions stated above.  In so doing I will address the first of the respondents’ submissions. I reiterate that the invitation was based on my preliminary view that s.50 of the Constitution was breached. That came after the trial of the substantive matter in this case, receiving the evidence called by the parties and their respective submissions.

248.	Earlier, I discussed the importance of the citizens only right under s.50 of the Constitution. That right is the right to either stand for an elective office or vote for a candidate of their choice. In short, this is a fundamental, sacred and special right of voting age citizens of our country. An exercise of this right from casting of a voters right to properly accounting for it and allocating it to the chosen candidate ensures and enables our citizens to participate meaningfully in the political process.  In this way, the voting age citizens of our country do have a say in choosing their representatives and thereby lawfully influence government decision-making. The right to vote enables citizens to express their preferences and select their preferred candidates. These rights are crucial for a functioning democracy as they allow our citizens to actively engage in the political process and have a say in the governance of our nation.

249.	Given the importance of the right under s.50, I repeat, once the right is exercised at the polls, that should be protected and properly ascertained through proper scrutiny, counted and allocated to the chosen candidate.  In that way, the citizens are allowed to have a real say on the election of a candidate preferred by the majority free of corruption, bribery or any form of undue influence.  

250.	In this case, the facts as I found in the foregoing establish a clear breach of the people of Kundiaw-Gembogl Open electorate who have exercised their rights under s.50 and casted their votes for a candidate of their choice to be properly ascertained by proper scrutiny in a way that was free of threats, intimidation and was fair, open and transparent. What actually happened, clearly establishes a failure to ascertain each of the votes and have them correctly allocated to the candidate each of the voters chose in the order of their preferences in a manner that was impartial, fair and open or transparent.  At the highest we are looking at about 7,366 or more votes and at the lowest about 4,366 or more votes not being properly ascertained and accounted for by proper scrutiny.  That is a substantial number of votes and voters rights affected with the choice they made not properly accounted for. 

251.	 Despite the above evidence, learned Counsels for the respondents submit, the Court has no evidence establishing a breach of s. 50.  In support of their respective submissions, learned Counsel for the respondents refers to the Supreme Court decisions in Commander of Beon Correction Institution v. Mal (2022) SC2186 and The State v. Tamate (2021) SC2132. These decisions support the proposition that before the powers under s.57 of the Constitution can be invoked, there must first be evidence of a breach.  In the case before me there is evidence of a breach of s.50 of the Constitution as I have found in the forgoing.

252.	Additionally, based on my experience dealing with election petitions, this is not the first time the process of ascertaining the votes by proper scrutiny has been breached.  Some of the cases on point are in learned Counsel for Onglo, Mr. Isaac’s submissions, which I cited at paragraphs 189 to 193 above. This begs the question of why is this allowed to recur in each election? Following on from that question, is the next question of what has the Electoral Commission done to stop this recurrence and therefore a repeated breach of s.50 of the Constitution?  Relate to these questions is the question of, isn’t there a better way? 

4.	Questions (a) & (b) - Common roll, BVS

253.	Having addressed the question of evidence of breach of s.50 rights, I now turn to a consideration of the question of common roll and BVS together.  What happened in the counting room in this case was part of a bigger problem. The problem started with the Commission failing to get the common rolls updated and in order before each National General Election (NGE) writs are issued. The purpose of an electoral roll, or a common roll, is to maintain an official list of eligible voters within a particular electorate. Its primary purpose is to ensure that only qualified individuals can exercise their right to vote in elections. 

254.	The electoral roll serves several important purposes.  Firstly, the roll is used to determine who is eligible to vote in elections. It includes information about the age, residency, and citizenship status of individuals, which helps verify their eligibility to participate in the electoral process. Secondly, the roll serves as a registration platform for citizens to enroll themselves as voters. It allows eligible individuals to provide their personal information and be added to the official list of voters. Thirdly, by maintaining an accurate and up-to-date roll, electoral authorities can prevent voter fraud. The roll helps ensure that each voter is registered only once and that their information is verified and authenticated.  Fourthly, the electoral roll is used to determine the allocation of voters to different constituencies or electoral districts. This ensures that each constituency has a fair and equal number of voters, promoting balanced representation. Finally, the roll assists in the effective administration of elections. It provides electoral authorities with the necessary information to organize polling stations, allocate resources, and distribute election materials. 

255.	As could be seen from the above outline, it can be said that overall, the purpose of an electoral roll or common roll is to uphold the integrity of the electoral process, safeguard the right to vote, and ensure fair and transparent elections.

256.	Part V of the Organic Law provides in detail for the production of common rolls. That starts with the Electoral Commissioner directing that be done by publishing a notice to that effect in the National Gazette for new electorates: See s.46A (1) of the Organic Law. A common roll once produced is than published by gazettal in the National Gazette: See s.46A (7) of Organic Law. This would give voters an opportunity to check the accuracy of the entries and raise any objections or seek corrections as may be required. Section 48A then obligates returning officers, presumably for each electorate to revise and compile existing common rolls.   

257.	It is public and common knowledge that the Commission has failed to ensure common rolls are revised and updated accurately in time for each NGE. Consequently, he has failed to meet the purpose of having a common roll thereby setting the stage for more election related problems and repeated breaches of the voting age citizens special right under s.50 of the Constitution.

258.	Many learned authors have written about PNG’s election related problems following each NGE. In respect of the 2022 election, one such writer Dr Henry Ivarature wrote an article, titled “Why PNG’s 2022 election is facing controversy”, The learned author wrote on 21 June 2022 saying:

“Official observers from the Commonwealth Observer Group and The Australian National University gave a number of recommendations in 2017 to improve the quality and integrity of future elections.

One key recommendation called on the government to release funds for voter registration in a timely manner for the PNG Electoral Commission to update its electoral rolls. In 2017, thousands of eligible voters could not vote due to faulty electoral rolls.

Unfortunately, 2022 is shaping up to be more of the same, because of the government’s failure to act on and implement these and other electoral reforms. Crucially, a delay in funding for the election commission prevented a major update of the electoral roll.

Updating the roll only began in January 2022 – about five months before voting was scheduled to begin. In March, when the writs were about to be issued, one MP claimed possibly over 500,000 eligible voters were not listed. At the time of writing, it is not clear if the update has been completed.”

259.	As highlighted in the above article, the common roll for most electorates in the country not being updated and ready for use in the 2022NGE with its associated problems at the elections was a publicly well-known fact.  It is also a well-known public knowledge that the issue of the common roll not being outdated and in need of immediate fixing is a recurring problem. Hence, it has been the subject of repeated recommendations of the Official Independent Commonwealth observers and others for the Commission to have this fixed before the next NGE on each such occasion. The Commission has continued to fail to get the common roll problem fixed, blaming on each occasion, the National Government for not providing the funding required to fix the problem.  

260.	In respect of the 2022 elections, the local PNG media and others covered the issue of common roll update turning into incomplete common rolls regularly.  Come the elections many voters found themselves not on the common roll and therefore not able to vote. The Commission had always pointed the finger at the National Government for failing to provide the funding required to fix the common roll related problems. An Independent Commonwealth Observer Group observing PNG’s 2022NGE election on 25 July 2022 expressed concerns about the voting process. Releasing its interim statement in Port Moresby, the Chairperson Group and former President of Nauru, H.E. Baron Waqa, said:

“There was widespread public dissatisfaction with the accuracy of the common roll. We are concerned that this could have disenfranchised high numbers of eligible voters.”

261.	The facts of outdated and or incomplete common rolls on each NGE and its associated problems are well-known public information in PNG and many abroad, courtesies of the information highway, the internet. The local and overseas media and others have been highlighting these problems regularly during the elections.  A quick survey of the reported decisions of the National and Supreme Court out of election petitions for the last 3 elections and those filed after the 2022NGE shows, the common roll problem continues to be a recurring problem:  See for examples of cases dealing with common roll related issues Kaiulo, The Electoral Commissioner of Papua New Guinea v James Mobie Genaboro and Ron Ganarafo (1998) SC567 and Karani v. Silupa (2004) N2517.  In these circumstances, I take judicial notice of the common roll and its associated problems.

262.	The right enshrined in s.50 of the Constitution can only properly be exercised based on all voting age citizens having themselves registered as a voter in the relevant electorate’s common roll. It is the duty of the Commission through a due and timely discharging for the duties imposed upon it by the relevant provisions of the Constitution through its powers to create and update common rolls under ss.46A and 48A of the Constitution to get the common rolls updated in sufficient time for each NGE interval which is usually 5 years.  The Commission therefore has about 4 years to get the common rolls in order.  The continuous failure to do so has amounted in my view to the repeated breach of the citizens’ special rights under s.50 of the Constitution. As confirmed by the independent Commonwealth Observer Group and others, the 2022NGE has seen more people turned away from exercising their rights to vote for a candidate of their choice.  That is a clear breach of those persons’ rights under s.50 of the Constitution.  This cannot be allowed to continue. 

263.	Another recurring problem in PNG in each NGE based on outdated and inaccurate common rolls is a ready hijacking of ballot boxes and casting them along tribal, clan and other groupings, as I noted earlier in the context of the RO and Dilu’s relationship here. This serious illegal actions and breaches of the affected citizens’ rights has denied the registered voters from personally and individually exercising their s.50 rights.  Again, a quick look at some of the published judgments of the Courts from petitions out of the previous NGE bears witness to that.  The detailed decision of the late Lay J., in Luke Alfred Manase v. Don Pomb Polye (2009) N3718, for example is a case in point.

264.	The effect of all of that has resulted in the voting age citizens right to stand for an elective office or vote for a candidate of their choice continuously breached. Through such illegal hijacking of ballot boxes and illegal casting of votes has resulted in persons not having secured the mandate of the majority of his or her electorate entering Parliament, purporting to represent the will of the majority. 

265.	Comparing and contrasting elections and election outcomes for more populous democracies like India, Philippines, Indonesia, Brazil and many more do not have and report of the same kinds of electoral problems we in PNG experience in each NGE.  What makes them different and better than our elections? What kind of system and process do they have?  A quick search of answers to these questions reveals each of these countries has a system of biometric electronic voting system or BVS or electronic voter identification system (EVIS). 

266.	A biometric voting system is a technologically advanced voting system that utilizes biometric data to verify and authenticate voters’ identities. It aims to enhance the security, accuracy, and efficiency of the voting process. Here is how it works and its features.  The first step in a biometric voting system is to register eligible voters. During the registration process, individuals provide their personal information, such as name, address, and biometric data. Biometric data can include fingerprints, iris scans, facial recognition, or even voice prints. Secondly, once registered, voters’ biometric data is captured using specialized biometric devices, for example, fingerprints can be scanned, iris patterns can be photographed, or facial features can be captured through a camera. The captured biometric data is then stored securely in a central database. Thirdly, on the day of the election, voters present themselves at the polling station. Their identities are verified using their biometric data. They are asked to place their finger on a fingerprint scanner, look into an iris recognition device, or have their face scanned by a facial recognition system. Fourthly, the voter's biometric data is compared with the data stored in the central database. The system performs a biometric matching process to determine if the presented biometric data matches the stored data associated with the voter’s identity. Fifthly, If the biometric data matches successfully, the voter’s identity is authenticated, and they are allowed to cast their votes. The voter would then proceed to the voting booth and exercise his or her right to vote using a traditional paper ballot or an electronic voting machine.  Finally, biometric voting systems employ robust security measures to protect the integrity and confidentiality of the biometric data. Encryption techniques and secure databases are used to ensure that unauthorized access or tampering is prevented.

267.	As will be apparent from the above description, the use of BVS offers several advantages, such as reducing voter fraud, by preventing multiple voting, hijacking of ballot papers and tribal, clan or other group voting and improving the overall efficiency and accuracy of the voting process. By relying on unique biometric features, these systems provide a high level of confidence in voter identification and authentication.

268.	In most of the jurisdictions where a BVS is used, they also include electronic vote counting or e-counting systems (eCounting). An eCounting system is a process in which votes are counted using electronic devices instead of manual methods. Here is how an eCounting system works. Firstly, voters typically use electronic voting machines (EVMs) or ballot marking devices (BMDs) to cast their votes. These devices can have touchscreens, buttons, or other interfaces for voters to make their selections. The voter’s choices are recorded electronically. Secondly, electronic voting machines store the casted votes electronically. The votes can be stored in internal memories of the system, or removable memory devices, such as external hard drives, memory cards or USB drives or transmitted wirelessly to a central server or database. Thirdly, once the voting process is complete, the eCounting system performs the vote tabulation. This involves the aggregation of the individual votes to determine the total count for each candidate or option. The eCounting system uses software algorithms to interpret and process the electronic vote data. These algorithms can vary depending on the specific system or software being used. They may include encryption, error-checking, and validation mechanisms to ensure accuracy and integrity. To ensure the accuracy of the electronic counting process, verification and audit procedures are often implemented. This may involve comparing the electronic count with a manual count of a sample of paper ballots or conducting post-election audits to verify the accuracy of the electronic results. Fourthly, once the eCounting process is complete, the results are generated in a format suitable for reporting. This can include electronic reports, data files, or even printed reports. The results may be transmitted electronically to a central election authority or displayed publicly for transparency.

269.	The eCounting system offers advantages such as faster and more efficient counting.  It reduces instances of human error and all forms of corruption from polling to scrutiny, counting of votes, allocation of the votes to the voters chosen candidates with a winner declare through a totally impartial, fairer and open process. Initial development and implementation of such a system does require a substantial level of funding.  But once the system is up and running, it saves a lot on the number of human beings that need to be deployed, production, printing, distribution and transportation of ballot papers before and after polling, security over ballot papers both before and after polling and other election material.  In that way, the costs of running an election get substantially reduced and at the same time, substantially contribute to eliminating the use of paper and hence chopping down of more trees and thereby substantially contribute to reducing the countries carbon footprint with substantial savings on funds.  Having such a system in our country would come with all these benefits and cause less destruction to schools and other government services because the teachers and other official get engaged for election duties.  It will also reduce the substantial sums of money that get spent at each NGE but with increased lawlessness and corruption with corrupted results or questionable returns each NGEs. 

270.	The only disadvantage or risk such a system comes with is around security. As with any other computerized system, there is always the risk of the system malfunctioning and cyber-attack and or compromise. However, with appropriate high levels of security built into the system and constant monitoring, testing and updating can ensure the system is robust, safe and secure.  In this way public trust and confidence in the system and its ability to deliver impartial, fair and transparent and promote election outcomes is secured.

271.	With the assistance of learned Counsel for Dilu, I happily landed at ss.68 and 71A of the Election Regulation. These provisions read:
“68. Voter identification systems 
(1)	The Electoral Commission or any authorized person may maintain and administer such manual, electronic or other identification systems as the Election Commission determines, to –
(a)	verify the identity of persons claiming a right to vote; and
(b)	prevent persons falsely claiming the identity or name entries of other on Roll living or deceased to vote; and
(c)	prevent elector voting more than once; and
(d)	(d)prevent other similar abuse in voting.
(2)	Without limiting the number and types of systems that the Electoral Commission may determine under Subsection (1), the systems may include one, more or a combination of the following:
(a)	marking voters by indelible ink; or
(b)	use of finger prints; or
(c)	use of identification cars for voters; or
(d)	use of photographic images; or
(e)	use of electronic identity cards or other similar instruments.
(3)	The Electoral Commission may, in addition to the provisions made in the Regulation on voter identification system, publish in the National Gazette further guidelines addition to the Regulation on the establishment, administration, management and use of one or more voter identification systems.
(4)	The Electoral Commission may make and publish amendments to guidelines referred to in Subsection (3) as and when it considers this necessary.
(5)	Guidelines made and published under Subsection (3) and (4) shall have the same status and effect as if the guidelines so made were part of this Regulation.”
…
71A. Voter identification system
(1)	The Electoral Commission may establish and manage a system to identify voters entitled to vote.
(2)	A system of identification established under Subsection (1) may take any one or more of the following forms:
(a)	Manual finger print;
(b)	Computer recorded and recognized finger print system;
(c)	Computer recorded and recognized palm recognition system; or
(d)	Computer, electronic or other photogenic system.
(3)	The Regulation may make provisions on how the system is kept and used.”
(Underlining supplied)

272.	Section 68 is in the Electoral Laws (National Elections) Regulation 2007 (No.4 of 2007). The other provision s.71A is not readily available. Counsel has not assisted me with any submission as to whether these provisions are complimentary, or the latter is a repeal and replacement of the former.  In either case, both provisions do provide for electronic voter identification systems. Hence, provision is already made in the election laws, per the Election Regulations for the use of a BVS.  As far as my knowledge and memory goes, I do not recall the Commission taking any meaningful steps to implement what is already provided for by law. Only the Commission knows why it has not been able to implement a BVS, despite the many election related problems we repeatedly have each NGE. This failure to act in terms of introducing a BVS with eCounting is continuing to deprive many voting age citizens from fully exercising their rights under s.50, while others have been able to benefit through various illegal means from hijacking of ballot boxes and illegal removal of votes and given to candidates other than the voters choices at counting resulting in many people entering Parliament as if they have secured the mandate of the people, when in fact they have not.

273.	Assuming lack of funding is the usual response, I note our National Budgets handed down each year in the last decade or so, has gone into billions of Kina.  If ever there is an important project or an area that needs serious attention and priority with appropriate levels of funding, it should be in electoral reforms. I know health, education, and others are equally important. However, it is through the electoral process resulting in representatives being sent to Parliament, that the other important decisions on health, education and others are made. Hence, the need to prioritise election systems and processes reform. As mentioned already, only through an electoral process that has integrity from common rolls, to conduct of polling to counting of votes and return of duly elected representatives, can the people freely and without fear or favour have a real say in the governance of our country. Our people have their opportunity to have their say only once every 5 years.  This calls for respect, protection and enforcement rather than allowing it to be repeatedly breached each NGE. 

274.	Over the years both the Supreme and National Courts and many others like the Independent Commonwealth Observer Groups have expressed hope that the electoral process will be reformed and improved to a better system and left it at that with the sincere hope that the Commission and the National Government will pick it up from there and take the appropriate steps.  That unfortunately has not resulted in any meaningful review and reform with the aim of overcoming the many recurring election related problems. I now consider the time has come for the Court to stand up for the protection and enforcement of the peoples’ s.50 right by making appropriate orders for both the National Government and the Electoral Commission to take all steps necessary to have what is already provided for in the Election Regulations implemented fully and in time for the 2027 NGE.  After the issuance of the appropriate orders, it will be necessary to check for compliance until all of Court’s orders are fully complied with and the objective for each of the orders are met.

275.	I propose to make the following orders:

(1)	Pursuant to s.57 of the Constitution and for the purposes of protecting and enforcing fully the citizens’ rights under s.50 of the Constitution, the Electoral Commission of Papua New Guinea is ordered to consider and make a decision by 05 August 2024 under s.71A or s.68 of the Electoral Laws (National Elections) Regulation 2007 for use of an appropriate electronic voter identification and eCounting system.

(2)	After making the decision under term 1 of these orders, the Electoral Commission shall produce a detailed strategic implementation plan for the decision, that outlines the key milestones to be achieved with the relevant time frames to commence in September 2024 and ending in September 2026 with the funds required for each stage and the whole system by 05 September 2024.

(3)	The decision in term 1 and plan in term 2 shall be communicated to the National Government by way of a funding submission for inclusion in the National Budget for 2025 by 05 October 2024.

(4)	Upon receipt of the communication of submissions under term 3 of these orders, the National Government shall prioritise the Electoral Commission’s submission under term 3 of these orders.

(5)	At the end of each month of August, September and October 2024, the Electoral Commission shall report to the Court in writing confirming compliance of each of the foregoing orders.

(6)	The Court reserves the power to call up these orders at any time to check and ensure there is full compliance within the required time frames and any required variations. 

5.	Use of CCTV for Scrutiny at Counting

276.	I now turn to the final question of using CCTV camera recording as an interim measure pending a full implementation of a BVS with eCounting.  Again, the Election Regulations already make provision for the use of electronic scrutiny at counting.   The relevant provisions are:

“92. Approved electronic scrutiny system
(1)	The Electoral Commission may approve an electronic scrutiny system to be used in a scrutiny.
(2)	An electronic scrutiny system approved by the Electoral Commission must be programmed to comply with the provisions of the law and this Regulation taking into account the scrutiny rules and in particular as regards –
(a)	the count of first preference votes; and
(b)	if necessary, the count of next preference votes; and
(c)	the exclusion of candidates (including the resolution of draws between the candidates to be excluded); and
(d)	the election of a candidate (including the resolution of a draw between the remaining two candidates to be elected).
(3)	An electronic scrutiny system may have such report producing feature as determined by the Electoral Commission.
(4)	The Electoral Commission shall publish in the National Gazette at least 14 days before and approved electronic system is used the main features of the approved electronic system and the necessary procedures involved in its use.”
…
“93. Returning officer to authorize use of electronic scrutiny system
(1)	Subject to Subsection (3), a Returning Officer may, where he considers desirable, authorize that a scrutiny or a part of a scrutiny be done using an approved electronic scrutiny system.
(2)	Where an approved electronic scrutiny system is used in a scrutiny, no changes are to be made to the electronic scrutiny system unless approved in writing by the Electoral Commissioner 
(3)	The Electoral Commissioner may direct that 
(a)	A scrutiny or a part of a scrutiny be done using an approved electronic scrutiny system; or
(b)	A scrutiny or a part of a scrutiny not be done using an approved electronic scrutiny system.”

(Underlining supplied)

277.	The benefits of using a CCTV system became clearer and pronounced in this case. Witnesses came into court with conflicting versions of what happened in the counting room. The RO and the respondents’ witnesses came with a version that all was well and without any major incident as if the election results for the KGO Seat were arrived at through an impartial, fair and transparent scrutiny process. On the other hand, Onglo and his witnesses came with a version of an highly compromised scrutiny process and declaration of Dilu as the winner of the election without proper scrutiny. The CCTV footage admitted into evidence, obviously having no mind of their own and thus not able to manipulate the events as it recorded or lie about any of the matters recorded, greatly assisted in getting to the truth of what happened.  They were the most impartial and did help me to resolve 4some of the factual issues. Having experienced the benefits of CCTV footage firsthand, I invited counsel to assist with submission as why or why not CCTV camera recordings should not be deployed in all counting centers until a BVS with eCounting is fully implemented. 

278.	Based on the assistance the CCTV footage gave to this Court, and pending implementation of a BVS with eCounting, I would order the Electoral Commission to decide under s.92 (1) of the Election Regulations for the use of a CCTV camera recording system at all counting centers until at such time real integrity in the counting process is restored for all electorates. This is necessary to avoid a repeat of what happened at the counting center in this case and to protect against the voters’ choices not being properly ascertained through proper scrutiny and allocated to their chosen candidate. Following on from that, I would further suggest that the decision be not left to the ROs who have demonstrated repeatedly their willingness to facilitate compromising of the counting process as I have found in this case.  

6.	Orders pursuant to s. 57 of the Constitution

279.	Based on the foregoing reasons, the Court makes the following orders, for protection and enforcement of s.50 Constitutional rights of the voting age citizens pursuant to s.57 of the Constitution:

(1)	Pursuant to s. 57 of the Constitution and for the purposes of protecting and enforcing the citizens right under s.50 of the Constitution, the Electoral Commission of Papua New Guinea is ordered to consider and make a decision by 05 August 2024 under s.71A or s.68 of the Electoral Law (National Elections) Regulation 2007 (No. 4 of 2007) for use of an appropriate electronic voter identification and eCounting system.

(2)	After making the decision under term 1 of these orders, produce a detailed strategic implementation plan for the system, which outlines the key milestones to be achieved with the relevant time frame to commencing in September 2024 and ending in September 2026 with the funds required for each stage and the whole system by 05 September 2024.

(3)	The decision in term 1 and plan in term 2 shall be communicated to the National Government by way of a funding submission for inclusion in the National Budget for 2025 by 05 October 2024.

(4)	Upon receipt of the communication of submissions under term 3 of these orders, the National Government shall prioritise the Electoral Commission’s submission under term 3 of these orders.

(5)	At the end of each month of August, September and October 2024, the Electoral Commission shall report to the Court in writing confirming compliance of each of the orders.

(6)	The Court reserves the power to call up these orders at any time to check and ensure there is full compliance within the required time frames and for any required variations. 

(7)	Pending a full implementation of a BVS with eCounting, the Electoral Commission shall make a decision under s.92(1) of the Electoral Laws (National Elections) Regulations 2007 (No. 4 of 2007) for the use of a CCTV system at all counting centers until at such times real integrity in the counting process is restore for all electorates.

Judgment and orders accordingly.

________________________________________________________
Emmanuel Layers:			Lawyers for the Petitioner
Gileng & Co Lawyers:		Lawyers for the First Respondent
Niugini Legal Practice:		Lawyers for the Second Respondent