Papua New Guinea Law Reports - 1977
[1977] PNGLR 354
N112
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
IN RE MANUS PROVINCIAL PARLIAMENTARY ELECTION ARNOLD MARSIPAL
V
MICHAEL PONDROS
Lorengau
Frost CJ
12-13 October 1977
PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Petition for declaration that candidate returned was not duly elected - Errors or omissions by officers - Principles applicable - Onus of proof - Organic Law on National Elections s. 212(1)(f), s. 218(1), s. 219(a).
On the hearing of a disputed election petition under s. 206 of the Organic Law on National Elections by a losing candidate for a declaration under s. 212(1) thereof that the candidate returned was not duly elected, on the grounds that there had been breaches of the provisions of the Organic Law on National Elections, and in particular breaches of s. 136(1) and s. 141(1) thereof.
Held
(1)      The power under s. 212(1) of the Organic Law on National Elections to “declare that a person who was returned as elected was not duly elected” can only be exercised if the petitioner can show that by reason of official irregularities there was a real possibility of a sufficient number of votes affected “to affect the result of the election” as required by s. 218(1) thereof, cannot be exercised if it appears that the result was plainly not affected.
In re Moresby Northwest Parliamentary Election [1977] P.N.G.L.R. 338 followed.
(2)      Where the person declared elected had a majority of 730 votes and where the total number of votes shown or said to have been affected by irregularities amounted to 21 votes, there was no real possibility of there being sufficient votes affected to “affect the result of the election” as required by s. 218(1) of the Organic Law on National Elections.
(3)      Accordingly, the petition should be dismissed.
Petition
This was a petition to the National Court sitting as a court of disputed returns, pursuant to s. 206 of the Organic Law on National Elections contesting the validity of the election of a Member of Parliament on the grounds of irregularities in electoral procedures.
Counsel
W. J. Andrew, for the petitioner.
K. B. Egan, for the respondent.
K. N. Gregory, for the Electoral Commissioner.
Cur. adv. vult.
13 October 1977
FROST CJ: This election petition concerns the electorate of Manus Provincial.
At the general elections 1977, the candidate declared elected was Mr. Michael Pondros. He gained 2,343 votes. This was 730 votes more than the total votes of the next candidate, Mr. Arnold Marsipal, who brings this petition. He seeks a declaration that the respondent was not duly elected.
There are three sets of facts relied upon by Mr. Marsipal in the petition. They are:
1.       During the conduct of the said election, persons under the age of 18 were permitted to vote for the candidate Michael Pondros.
2.       A presiding officer in Manus Provincial Electorate failed to authenticate votes by his initials or an official mark, thereby causing otherwise valid ballot papers to be treated as informal.
3.       Persons who were entitled to have their names placed on the electoral roll for the Manus Provincial Electorate did not have their names on the electoral roll for that electorate and were not informed that they were still entitled to vote pursuant to s. 141 of the Organic Law on National Elections.
As the two months’ period within which a petition must be filed has expired, it is now too late for application to be made to amend the petition by adding additional facts to be relied upon to invalidate the election.
At this stage of the case, evidence has been called on behalf of the petitioner under the first two grounds. There is evidence under the first ground that on 23rd June, 1977, at Matwarei Village, four girls under the voting age of 18 whose names were not on the roll were permitted to vote under s. 141(1). That section makes special provision in certain cases for persons whose names are not on the certified list to vote. But for that section to apply the person must be entitled to vote and thus of voting age. That the girls were under 18 was supported by the village register.
Under the second ground the Returning Officer, Mr. Bevan Stott, has given evidence that there was a number of votes rendered informal because the ballot paper was not initialled by the presiding officer as required by the Organic Law, s. 136(1). However, the votes did not number more than 10. Whether there was any balance at all or to what extent in favour of Mr. Marsipal would depend upon an examination of the votes, which are still available.
Thus, under these first two grounds, there is evidence of errors and omissions on the part of electoral officers, but the number of votes involved could not exceed in all 14.
Under the third ground Mr. Andrew, who appears for Mr. Marsipal, has opened to the Court that the direct evidence he is in a position to call is that during the election seven persons approached the presiding officer at the booths in question and were told that their names were not on the roll and therefore they could not vote. Subject to the evidence being accepted, Mr. Andrew submits that this is a case of persons being prevented from voting by the error of the presiding officer. But the error to which he is limited upon the ground as stated in the petition is that the persons concerned were not informed that they were still entitled to vote pursuant to s. 141 of the Organic Law on National Elections.
It is clear that if the case is left in the position that the petitioner cannot show that by reason of official irregularities there was a real possibility of a sufficient number of votes to affect the result of the election, or if it appears that the result was plainly not affected, the petitioner cannot succeed. In re Moresby Northwest Parliamentary Election[ccclxv]1. Organic Law, s. 218(1).
Mr. Egan, supported by Mr. Gregory, now submits that I should rule on the sufficiency of the evidence opened to the Court to support the third ground relied on, and thus the petition as a whole. Mr. Andrew did not object to this application being heard.
Mr. Egan points to the total number of votes shown or said to have been affected by electoral errors or omissions, which at the most he submits amounts to 21 votes; 14 under grounds one and two, and 7 under ground three, and thus falls far short of Mr. Pondros’ majority.
Mr. Gregory submits also that a case of refusal of permission to vote is outside the third ground. Mr. Andrew conceded that the figures are correct and, in particular, under the third ground that the most he could call is direct evidence relating to some 7 votes. As to additional votes, he could call some indirect evidence, but he would concede at the most it is going to fall far short of the majority which the winning candidate obtained. He would be left only with the submission that the Court might be able to infer that other persons would similarly have been deprived of the opportunity to vote. He would thus be driven to rely on an inference from proved errors of other errors being made. But no such inference could be justified on that ground, even on the balance of probabilities, and the onus on the petitioner goes further than that. In re Moresby Northwest Parliamentary Election[ccclxvi]2.
Further, the evidence proposed to be called goes beyond the third ground which is an allegation confined to an omission to inform. What it is sought to do is to support a different allegation, in effect of actively depriving persons of the right to vote. Mr. Andrew was not able to refer to any provision in the Organic Law which puts electoral officers under an obligation to inform persons of their rights under s. 141. Indeed what the Organic Law refers to and seems to require is proof that persons relying on s. 141(1) should claim to vote under that section. See ss. 136(1)(c), 219(a).
In view of these considerations, putting it at the highest there is no real possibility of the petitioner’s numbers being enough to bridge the gap as required under s. 218(1). Accordingly, in my opinion the evidence if called is insufficient for the petition to succeed.
So, in the circumstances Mr. Andrew, do you propose to call the evidence?
Mr. Andrew: No, Your Honour.
For the reasons I have given the petition fails. The petition will be dismissed. I shall order that the deposit be forfeited.
Petition dismissed.
Solicitor for the Electoral Commissioner: C. Maino-Aoae, Acting State Solicitor.

[ccclxv] [1972] P.N.G.L.R. 338.
[ccclxvi] [1977] P.N.G.L.R. 338.