[1973] PNGLR 243

PAPUA NEW GUINEA
[COURT OF DISPUTED RETURNS]

IN THE MATTER OF CHARLIE MAINO AUKI

Port Moresby
Kelly J

13-14 July 1972
8 August 1972

COURT OF DISPUTED RETURNS - Election of member of House of Assembly - Loss of ballot papers - Reasonable ground to believe majority of electors may have been prevented from electing candidate they preferred - Electoral Ordinance s. 211.[cclvii]1 

A. a candidate at a House of Assembly election, presented a petition claiming that it should be declared that S. was not duly elected. S. had been returned as duly elected with a majority of sixty votes over A. after the distribution of preferences. After the election and prior to counting, a ballot box containing votes in respect of the electorate went into a creek whilst being conveyed to Port Moresby. When it was opened at the counting, some of the ballot papers were legible but a number were not. An informal tally sheet purported to show that the total number of ballot papers for the electorate in question that were placed in the ballot box dropped in the creek was eighty-three. At the most, only twenty-one of the votes on those ballot papers were able to be included in the scrutiny. Accordingly, there would have been at least sixty-two ballot papers the votes on which could not be included in the count.

Held

(1)      The appropriate test was that the election should be avoided if the tribunal was satisfied that by reason of the mishap which occurred to the ballot box there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred;

(2)      The onus was on the respondent to establish that the exclusion from the count of the votes of the damaged ballot papers did not affect the result of the election; Chanter v. Blackwood (No. 2) (1904), 1 C.L.R. 121; Woodward v. Sarsons (1875), L.R. 10 C.P. 733; The Flinders Election Petition; Forde v. Lonergan, [1958] Qd. R. 324; Bridge v. Bowen (1916), 21 C.L.R. 582; Cole v. Lacey (1965), 112 C.L.R. 45, referred to.

(3)      As the respondent was unable to discharge the onus, it should be declared that the respondent was not duly elected.

Petition

Charles Maino Auki, an unsuccessful candidate at the election held in March 1972, for the election of a member for Kairuku-Hiri Open Electorate, presented a petition claiming that it should be declared that the respondent, Ron Slaughter, was not duly elected. The facts, and the grounds upon which the petition was based, are set out in the judgment.

Editor's Note

By s. 201 of the Electoral Ordinance, the Supreme Court of Papua New Guinea is constituted the Court of Disputed Returns and the jurisdiction of the Supreme Court sitting as the Court of Disputed Returns may be exercised by a single judge of the Supreme Court.

Counsel

R. Gyles, for the petitioner.
C. Kirke, for the respondent.
P. A. Benson, for the Chief Electoral Officer formally, to submit.
Cur. adv. vult.

8 August 1972

KELLY J: A petition has been presented by Charlie Maino Auki a candidate at the election held in March 1972, for the election of a member to serve in the House of Assembly for the Kairuku-Hiri Open Electorate, at which the respondent Ron Slaughter was returned as being duly elected.

After the distribution of preferences, the successful candidate had a majority of sixty votes over the petitioner. The petitioner claims that in the events that happened it should be declared that the respondent was not duly elected. Whilst in the petition there is a further claim for the ordering of a new poll in the electorate or, alternatively, in certain polling places only, counsel for the petitioner concedes that relief in that form could not be granted as it is not within the powers of the court as set out in s. 206 (1) of the Electoral Ordinance, 1963-1971 and that the appropriate relief in the event that the court were to declare that the respondent was not duly elected would be that it should also declare the election absolutely void.

The events relied on by the petitioner as entitling him to the relief sought are as follows. One of the polling places for the electorate was at Kuriva where polling took place on Monday 21st February. The votes cast were placed in two separate ballot boxes one containing votes in respect of the Kairuku-Hiri Open Electorate and the Central Regional Electorate and the other containing absent votes in respect of other electorates. On the night of Tuesday 22nd February, whilst crossing a creek the vehicle in which the ballot boxes were being conveyed was pushed over the edge of the causeway by a sudden onrush of floodwater and the ballot boxes went into the creek. The box containing the ballot papers from Kuriva in respect of the Kairuku-Hiri Open Electorate and the Central Regional Electorate was recovered and in due course was received by the Returning Officer for the Kairuku-Hiri Open Electorate. When the box was opened on the night appointed for the counting of votes and the contents sorted there were some legible ballot papers, said to number twenty-five in all, and what was described as a mass of paper which could not be identified as separate ballot papers. Of the legible ballot papers thirteen were admitted as formal votes and the balance rejected as informal. The ballot papers which were thus rejected were produced from the custody of the Chief Electoral Officer and admitted in evidence and I shall deal further with them in due course.

A question arises as to the number of ballot papers for the Kairuku-Hiri Open Electorate which were in the box when polling closed at Kuriva. The records which the presiding officer at that polling place was required to maintain were lost in the creek and the only document relating to the number of votes said to have been cast at that polling place is what is termed a sex tally sheet. Making use of this document in the manner which I shall indicate it was said that eighty-three ballot papers in respect of the Kairuku-Hiri Open Electorate were in the box at the close of polling at Kuriva. Whilst in view of the wide provisions of s. 211 of the Electoral Ordinance this document was admitted in evidence, the question of the weight to be given to it requires consideration. The evidence shows that there were no votes cast at Kuriva by voters on the certified list for the Kairuku-Hiri Open Electorate and all votes cast in respect of that electorate were pursuant to s. 130 which makes special provision for a person whose name is not on the certified list; the remaining votes were absent votes in respect of other electorates.

The sex tally sheet used by the presiding officer is an official form; it shows on its face that its use is for a certified list of voters only and that the sex tally of absent voters and declaration voters (which include voters who pursuant to s. 130 are permitted to vote on making a declaration in the prescribed form) must not be included in this sheet. The presiding officer, however, used the form as an unofficial check sheet, the system being that a number was struck off under the heading of either “males” or “females” as each ballot paper was issued. In the course of the day there were three persons who made marks on the sheet, only two of whom were called as witnesses, and neither of those witnesses could positively identify which marks he had made. The sheet showed in the case of males the numbers 1 to 65 struck off and in the case of females the numbers from 1 to 39 struck off. On the “male” side of the sheet is written “13 ordinary”, the figure of 13 having been changed from 12, and on the “female” side is written “8 ordinary”. The presiding officer who wrote these words and figures on the sheet said that they related to absent voters and that the word “ordinary” which was obviously inappropriate to describe such voters had been used by mistake, and that in fact there were no “ordinary” voters in the sense of voters on the certified list at that polling place. With that gloss as it were upon it, the sheet then purports to show that there were 104 ballot papers issued of which twenty-one were for absent voters, leaving a remainder of eighty-three ballot papers for the Kairuku-Hiri Open Electorate and the Central Regional Electorate.

There was evidence that after the conclusion of polling at Kuriva a reconciliation was made between the ballot papers issued to the presiding officer and those then remaining unused and that this showed that 104 ballot papers had been issued to voters, although it did not follow that all the ballot papers so issued had actually been placed in the ballot box. In the course of this reconciliation reference was made to the number of persons whose names were recorded in the presiding officer’s report as having voted as absent voters or under s. 130 respectively but this document was amongst those lost in the creek. There was evidence that the sex tally sheet was also used in reconciliation, but the evidence on this was not altogether satisfactory and I am not convinced that this was the case. At all events it appears that the basis on which it is now said that the total number of votes cast at Kuriva was 104 of which eighty-three were in respect of the Kairuku-Hiri Open Electorate is the sex tally sheet.

On the whole of the evidence relating to the completion of the sex tally sheet and the use made of it I do not think that it has been satisfactorily established that the number of ballot papers in respect of the Kairuku-Hiri Open Electorate which were placed in the ballot box the contents of which were affected by immersion in the water was in fact eighty-three. However, assuming for the purpose of what I am about to consider that those ballot papers did number eighty-three, I turn to examine the evidence of how many of the votes on those ballot papers were not included in the count by reason of the state of the ballot papers after the opening of the box making it impossible for such votes to be counted.

I am satisfied that of the legible ballot papers taken from the box there were thirteen formal votes which were in fact included in the count. There were said to have been a further twelve legible ballot papers which were treated as informal votes but after close examination of the various pieces of paper in evidence it is clear that they do not make up twelve complete ballot papers. An analysis of the pieces of paper said to constitute the twelve informal votes shows the following:

(a)      There were five complete ballot papers either unmarked or bearing a figure other than 1. The reason for rejecting these votes as informal therefore seems to have been unrelated to what had occurred to the box and its contents since those ballot papers had been placed in it.

(b)      There were two ballot papers each in two pieces but in each case the two pieces clearly matched up and it may well have been that at the time of being taken from the box each constituted a complete ballot paper which after handling became separated into two pieces. Treating the two pieces in each case as having constituted a complete ballot paper at the time of scrutiny, it would seem that they would have been rejected as informal for a similar reason to that applying to the five ballot papers in (a) above, as although each had two figures on it in neither case did the figure 1 appear.

(c)      There was a ballot paper which bore the figure 1 only but which was incomplete in that the last name on the paper was missing. There was also the bottom portion of a ballot paper bearing the last name only against which was the figure 1. From a matching up of these two pieces of paper it appears probable that they did originally constitute one complete ballot paper which became separated in handling. If that were so the informality of that vote would appear to have been due to the fact that the voter had indicated his first preference for each of two candidates.

(d)      The remaining pieces of paper were:

(i)       Two pieces of paper being the top and bottom portions of a ballot paper with the figure 1 against one of the names on the top portion. Although the returning officer when in the witness box, in an attempt to reconstruct the various pieces of paper into the form in which they may have been at the time of the scrutiny, thought that these two pieces of paper had originally constituted one complete ballot paper, I do not think this is so as on close examination there is some overlapping between the two pieces and I would consider it more likely that these are parts of two separate papers.

(ii)      The top portion only of a ballot paper bearing no names at all.

(iii)     The bottom portion only of a ballot paper bearing the names of five of the nine candidates and unmarked.

There was evidence that a piece of paper which was only part of a complete ballot paper would not have gone into the tally of informal votes, although from the above analysis it would seem that in order to arrive at a figure of twelve informal votes each of the four pieces of paper in category (d) may have been treated as constituting an informal vote.

I would consider that it might properly be inferred that what had occurred to the box and its contents had at least contributed to the exclusion from the count of formal votes of those ballot papers of which the pieces of paper in category (d) above had formed part. Of course it may well have been that some of those ballot papers would have been rejected as informal in any event but it is not possible to express any opinion on that.

If then there were eighty-three ballot papers in respect of the Kairuku-Hiri Open Electorate originally placed in that box, and as I have said this is not satisfactorily established on the evidence, at the most only twenty-one of the votes on those ballot papers were able to be included in the scrutiny following the opening of the box, thirteen being treated as formal votes and at the most eight (that is, those in categories (a), (b) and (c) above) rejected as informal for reasons apparently unrelated to what had occurred to the box. This meant that there would have been at least sixty-two ballot papers the votes on which could not be included in the count of formal votes, this being for reasons associated with what had taken place after the ballot papers had been placed in the box, the papers being either part of a mass of paper incapable of being identified as separate ballot papers or mutilated (that is, those in category (d) above). Bearing in mind that after the distribution of preferences the majority for the successful candidate was sixty votes I now turn to the relevant law to see what conclusions follow from this.

By s. 201 of the Electoral Ordinance the Supreme Court is constituted the Court of Disputed Returns and the jurisdiction of the Supreme Court sitting as the Court of Disputed Returns may be exercised by a single judge. Section 211 provides that “The Court of Disputed Returns shall 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.” Section 212 provides as follows:

“(1)    Subject to the next succeeding subsection, an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

(2)      Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the Court of Disputed Returns shall not, for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”

In Chanter v. Blackwood (No. 2)[cclviii]3 which was the case of an election petition under the Commonwealth Electoral Act 1902 which contained a provision in terms identical with s. 211 of the Electoral Ordinance, Griffith C.J. was of the opinion that in deciding the case he should apply the common law of elections as found in Woodward v. Sarsons[cclix]4 in the judgment of Lord Coleridge. However, as Philp J. pointed out in The Flinders Election Petition. Forde v. Lonergan[cclx]5, the subject of that case was a municipal election and in his view the decision has been misunderstood because the report does not indicate that the relevant statute, the Corrupt Practices (Municipal Elections) Act, 1872, s. 21 (2) imposed upon the court the duty of applying not the principles of any so-called common law of elections but the principles “being observed in the case of election petitions under the provisions of the Parliamentary Elections Act, 1868”. Under that Act the court in dealing with a petition in relation to a parliamentary election is by s. 26 bound to observe the “principles practice and rules on which the Committees of the House of Commons have heretofore acted ...”

There was in Queensland no statute corresponding to the Parliamentary Elections Act, 1868 and this is also the position in Papua New Guinea. The section of The Elections Acts, 1915 to 1952 of Queensland which corresponds to s. 211 of the Electoral Ordinance was s. 111 which provided, inter alia, “Upon the trial of an election petition or reference the Tribunal shall be guided by the real justice and good conscience of the case, without regard to legal forms and solemnities, and shall direct itself by the best evidence it can procure, or which is laid before it, whether the same is such evidence as the law would require or admit in other cases or not.” Philp J. considered that the parliamentary common law and the English decisions expounding that law were of persuasive value in determining the “real justice” of the case and he therefore adopted and applied Lord Coleridge’s statement in Woodward v. Sarsons[cclxi]6 which was that referred to by Griffith C.J. in Chanter v. Blackwood (No. 2)[cclxii]7, not because it was part of the so-called common law of elections but because it comported with his opinion of what was real justice in the circumstances of the case before him.

The statement of Lord Coleridge is as follows:

“We are of opinion that the true statement is that an election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e., that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a free and fair opportunity of electing the candidate which the majority might prefer. This would certainly be so if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred. But if the tribunal should only be satisfied that certain of such mishaps had occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe that a majority might have been, prevented from electing the candidate they preferred, then we think that the existence of such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament.”

To my mind the view adopted by Philp J. is the one which ought to be adopted in the present instance and its adoption has of course the effect of applying the same principle as that applied by Griffith C.J. in Chanter v. Blackwood (No. 2)[cclxiii]8and although the same result may be achieved it is reached by a somewhat different route. In Chanter v. Blackwood (No. 2)[cclxiv]9 the court was concerned with a case where a number of persons sufficient to change the majority into a minority if they had all voted against the candidate having a majority had wrongly been allowed to vote and Griffith C.J. concluded at p. 131 that the numbers being as they were it was impossible for him to say that the majority of the electors may not have been prevented from exercising their free choice. The number of persons who had no right to vote and whose votes were counted was ninety-one and in the course of his reasoning the learned Chief Justice postulated the case where ninety-one persons who had a right to vote had not been allowed to do so and said, “Clearly those persons would have been prevented from exercising their right to vote and the election must have been declared void.” In my view the same result follows where a number of persons sufficient to change the majority into a minority if they had all voted against the candidate having the majority, having cast their votes do not have those votes counted by reason of the ballot papers being damaged prior to the scrutiny taking place. In this instance the majority for the successful candidate was sixty votes and on the basis on which I have proceeded above there would have been at least sixty-two voters whose votes were not capable of being included in the count of formal votes for reasons arising out of the mishap to the ballot box. I am not entitled to speculate how those persons did in fact vote or whether had it not been for the mishap all sixty-two votes would have been treated as formal. The result is that, on the assumption that there were eighty-three ballot papers in the box, the numbers being as they are, I am satisfied that by reason of the mishap which occurred to this ballot box there is reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred.

Whilst this is not a case of official irregularity in the conduct of the election in the sense referred to by Isaacs J. (as he then was) in Bridge v. Bowen[cclxv]10 in the fourth of the propositions which appear at pp. 623-4, nor in my view could it properly be regarded as one of an error of or an omission by an officer within the meaning of s. 212 of the Electoral Ordinance, I consider that the position so far as onus is concerned is to be equated to that stated by Isaacs J. in the passage in Bridge v. Bowen[cclxvi]11 to which I have referred and indicated by Taylor J. in Cole v. Lacey[cclxvii]12 in dealing with s. 194 of the Commonwealth Electoral Act, 1918-1962 which corresponds with s. 212 of the Electoral Ordinance. Indeed the result is the same as that which follows from the application of the statement of Lord Coleridge in Woodward v. Sarsons[cclxviii]13 so that in the present circumstances it is for the respondent to establish that the exclusion from the count of the votes on the damaged ballot papers did not affect the result of the election. Clearly he is unable to discharge this onus on the basis on which I have been proceeding, namely that there were eighty-three ballot papers for this electorate in the ballot box at the conclusion of polling. If this assumption as to the number of ballot papers in the box is ill-founded and it is impossible to determine the exact number of papers which were in fact in the box with the consequence that it is impossible to determine the number of votes which were not capable of being included in the count of formal votes by reason of the mishap to the box then he is in no better position in attempting to discharge the onus which lies on him.

On the result which is thus arrived at on the facts it becomes unnecessary to consider the submission of counsel for the petitioner that the petition must succeed because in the events which occurred the returning officer was unable to comply with the mandatory provisions of s. 162 which require him in the first instance to ascertain the total number of first preference votes given for each candidate, since it was impossible for him to know what was the total number of votes cast and therefore the result of the election could not be determined by scrutiny in compliance with the Ordinance. In support of this submission, counsel relied on s. 164 which provides, inter alia, for the returning officer proceeding with the scrutiny without awaiting the receipt of ballot papers where the votes on those ballot papers cannot, having regard to their number, possibly affect the result of the election, and he also relied on s. 170 which makes provision for the declaration of the poll without awaiting the receipt of ballot papers in certain circumstances. It was submitted that on the proper construction of ss. 164 and 170 the present case did not come within either of those sections and that, as the case was one for which the Ordinance did not provide, the result for which he contended must follow.

There is undoubtedly much force in this argument and whilst I am not required to decide whether as a matter of law the fact that ballot papers are lost, destroyed or mutilated after being placed in the ballot box prevents the result of the election from being determined, irrespective of the number of those ballot papers and of whether the non-inclusion of the votes concerned could possibly affect the result of the election, the matter is certainly one to which legislative attention might well be directed. The situation which arose in this case appears to be novel and no decided case could be discovered in which damage to ballot papers had occurred after polling and before scrutiny. In the physical conditions under which an election has to be conducted in this country, even with the greatest of care on the part of electoral officials the possibility of some mishap to a ballot box is undoubtedly present and it would seem prudent for regard to be had to this in the Ordinance.

I conclude that in the events which occurred the election of the respondent Ron Slaughter was an undue election. I declare that the respondent Ron Slaughter was not duly elected and that the election is absolutely void.

In the circumstances of this case I do not consider that an order for costs should be made against either of the respondents. There will therefore be no order as to costs and the deposit lodged will be returned to the petitioner.

Declaration accordingly.

Solicitor for the petitioner: J. Anthony Griffin.
Solicitor for the respondent (the Chief Electoral Officer): P. J. Clay, Crown Solicitor.
Solicitor for the respondent (Ron Slaughter): Craig Kirke & Pratt.

[cclvii]Infra p. 248.
[cclviii](1904) 1 CLR. 121.
[cclix](1875) LR. 10 C.P. 733, at p. 743.
[cclx][1958] QdR. 324, at p. 330.
[cclxi](1875) LR. 10 C.P. 733, at p. 743.
[cclxii](1904) 1 CLR. 121.
[cclxiii](1904) 1 CLR. 121.
[cclxiv](1904) 1 CLR. 121.
[cclxv](1916) 21 CLR. 582.
[cclxvi](1916) 21 CLR. 582.
[cclxvii](1964-65) 112 CLR. 45, at p. 49.
[cclxviii](1875) LR. 10 CP. 733.