Papua New Guinea Law Reports - 1982
[1982] PNGLR 351
N408
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
NAHAU ROONEY
V
THE ELECTORAL COMMISSIONER
Manus & Waigani
Andrew J
18-20 October 1982
28 October 1982
PARLIAMENT - Elections - Voting - Method of - Marking of ballot-papers - Ascertaining voter’s intention - Whether ballot-papers to be treated as formal or informal - Organic Law on National Elections, ss. 139, 155(4), 212.
Under the Organic Law on National Elections;
s. 139 provides that the ballot-paper should be marked by an “X” in the square opposite the name of the candidate; and
s. 154(4) provides that, notwithstanding s. 139, where a returning officer is satisfied that any mark made on a ballot-paper clearly indicates the intention of the voter and the candidate for whom he has given his vote the vote need not be regarded as informal.
Held
Accordingly, that a circular instruction to all provincial electoral officers and returning officers in terms fully set out at pp. 352-353, accurately stated the correct principles in relation to ascertaining a voter’s intention under s. 154(4).
Levers v. Morris (D.C.) [1972] 1 Q.B. 221 referred to.
Petition
This was a petition to the National Court disputing the result of an open parliamentary election.
Counsel
E. Jubilee, for the petitioner.
The first respondent in person.
G. Delaney, for the second respondent.
Cur. adv. vult.
28 October 1982
ANDREW J: This is a petition disputing the result for the electorate of Manus Open.
At the 1982 general elections, the candidate declared duly elected was Mr. James Pokasui, the respondent in these proceedings. He gained 1,541 votes and the petitioner gained 1,540. This was the result of a re-count following a tied vote when both the petitioner and the respondent gained 1,537 votes.
At the commencement of the hearing of the petition in Lorengau it became apparent that there should be a re-count of the previously declared informal votes totalling 377. This followed from the evidence of the provincial returning officer who stated that he had not been aware of a circular from the Electoral Commissioner setting out various guidelines to be observed when counting votes. It was apparent that certain votes would have been declared formal in the initial counting had the returning officer been aware of those instructions but instead they were counted as informal. Accordingly a re-count was ordered pursuant to s. 212 of the Organic Law on National Elections.
Section 139 of the Organic Law on National Elections is as follows:
139.    METHOD OF MARKING BALLOT-PAPER.
Subject to this law, an elector shall record his vote on his ballot-paper by placing an “X” in the square opposite the name of the candidate for whom he wishes to vote in such a way as to clearly indicate his preference for that candidate only.
However s. 154(4) provides:
154(4) Notwithstanding the provisions of this section or Section 139, where the Returning Officer is satisfied that any mark made on a ballot-paper clearly indicates the intention of the voter and the candidate for whom he has given his vote, the Returning Officer shall not determine that the vote is informal merely because the mark is not an ‘X’.
Prior to the national elections this year the Electoral Commissioner issued the following circular instruction (EC 10 of 1982) to all provincial electoral officers and returning officers.
NATIONAL PARLIAMENT ELECTIONS INFORMAL BALLOT-PAPERS
“A ballot-paper should not be treated as informal merely because the mark on it is not an ‘X’ if the returning officer is satisfied that any mark made on a ballot-paper clearly indicates the intention of the voter and the candidate for whom he has given his vote. (See s. 154(4) of the Organic Law on National Elections.)
The mark whether an ‘X’ or some other mark should be acceptable whether it is in the box or not, provided it is beyond doubt as to which voter it applies to.
If three candidates are marked with the figures ‘1’, ‘2’, ‘3’ respectively the ballot-paper should be treated as a vote for the one marked with the figure ‘1’, or if three candidates are marked with the letters ‘A’, ‘B’, ‘C’ respectively the ballot-paper should be treated as a vote for the one marked ‘A’. In all other cases, more than one mark, unless they both clearly indicate a vote for the same candidate, would make a ballot-paper informal. For example an ‘X’ for one candidate and a tick for another, or ‘1’ for one and ‘A’ for another, or ‘X’ for one and a stroke (in any direction) for another makes such ballot-papers informal. In each of these cases, if the marks were beside the name of one candidate only, they should not be treated as informal.
The writing or printing of a candidate’s name by the voter on the front or back of a ballot-paper does not make the ballot-paper informal provided there is no other mark on the ballot-paper which could indicate a vote for a different candidate. The written or printed name of a candidate should be treated as a valid vote for that candidate even if there is none of the more usual marks beside the name of that candidate.
Whilst the first in a series (such as the figure ‘1’ or the letter ‘A’) is acceptable, something later such as a ‘2’ or ‘10’ or ‘C’ is not. For example, a ballot-paper marked with an ‘A’ for one candidate and no other mark on it for any other candidate should be treated as formal but one which had only a ‘2’ or ‘B’ should be treated as informal.
If a ballot-paper has two acceptable marks on it but one has been crossed out and if the two marks indicated marks for different candidates then the ballot-papers should be treated as formal if the crossing out is clear and unmistakable.
Some marks which could be accepted, subject to the above are as follows. Although these are shown in boxes, they can be accepted even if they are beside the box or to the right of the candidate’s name.
 Markings 
A mark which consists merely of a dot is not acceptable.
Sgd
ELECTORAL COMMISSIONER
25th February, 1982.”
In my opinion the above circular accurately states the correct principles in relation to ascertaining a voter’s intention: See Levers v. Morris (D.C.) [1972] 1 Q.B. 221, and the learned author of Schofield on Elections (17th ed., 1976) at pp. 365 to 379.
The returning officer in this case had allowed only those votes which had a X or a ü placed in the box.
The re-count of these 377 votes was conducted under police supervision and each candidate was entitled to have a scrutineer present together with his or her legal representative. The prescribed officer then reported to the court the result of that count.
However, as some votes were still in dispute I held that the whole of the 377 votes should be subject to the court’s ruling (pursuant to s. 212 of the Organic Law).
In the majority of cases the decision of the provincial returning officer was accepted. In the case of those votes still in dispute the procedure adopted was that the vote was marked as a court exhibit and then handed to the returning officer. He indicated what his decision had been and the vote was then given to each counsel and to the respondent (who appeared in person) and they were invited to cross-examine the returning officer if they so wished and to make their submission upon each vote. I then made a ruling upon each as to the voter’s intention and each was either confirmed as informal or allocated to the relevant candidate.
The result of these rulings showed that the petitioner had gained a further twenty-three votes, and the respondent a further seven.
As there was a discrepancy in the total number of votes counted between the first and second count I ordered another re-count to be conducted of all the votes cast excluding the 377 formerly informal votes which the court had ruled upon. This was conducted in Port Moresby under the supervision of the Electoral Commissioner. The ballot boxes were transported to Port Moresby under police custody. Each candidate was allowed to have a scrutineer of his choice present together with his or her legal representative. I was satisfied that this re-count had been conducted accurately and that it was scrupulously fair.
The result was that the petitioner had a total of 1,536 votes and the respondent a total of 1,541 votes. To these totals was added the formerly informal votes which the court had ruled upon.
The end result for all candidates was as follows:
Roy Pogat	429	
Mathew Tuam	1,027	
Joseph Kove	1,394	
Hanai Popon	1,479	
Elizabeth Burra	117	
Francis P. Posanau	983	
Nahau K. Rooney	1,559	
Nalau Maiah	371	
Charles Batapei	305	
Kisokau Pocahon	828	
James Pokasui	1,548	
Informal	20	
Thus the petitioner has eleven (11) votes more than her nearest rival, the respondent.
I am satisfied on any test that the re-counting held in Port Moresby has been scrupulously fair and its accuracy cannot be doubted. This may also be seen by the fact that the figures of the first re-count have been confirmed. It is true that there are slight discrepancies in the total number of votes counted but these are all explained and in any event they make no difference to the overall result.
The result then is that it is shown beyond reasonable doubt that the petitioner has established that she obtained the greatest number of votes.
I have considered whether the court should order a by-election or to declare the petitioner as duly elected as the court has power to do under s. 212 of the Organic Law on National Elections.
Clearly the purpose of the Organic Law as it relates to the national election is to ascertain which candidate obtains the will of the majority. Here, it is beyond doubt that the petitioner has won the election by eleven (11) votes and accordingly that being the will of the majority, the court must order it as so.
I declare pursuant to s. 212 of the Organic Law on National Elections that the candidate James Pokasui who was returned as the Member for the Electorate of Manus Open was not duly elected. I further declare the candidate Nahau K. Rooney duly elected as the Member for the Electorate of Manus Open.
I order that the sum of K200 paid by the petitioner as security for costs be repaid to her.
I order that the Electoral Commissioner pay the costs of the petitioner and first respondent insofar as they relate to the ground upon which the petition has been successful.
I should say that the ground set out in paragraph 3 of the petition viz.: that persons were denied the opportunity to vote, has not been proved and that any allegations against Mr. Pokasui were not proceeded with and have not been shown to be correct.
Finally, the efficiency of the Electoral Officials was called into question. From my hearing on this petition, I am satisfied that they were scrupulously fair. It is true that some mistakes were made but these have been corrected. As to the counting of informal votes which have now been found to be formal, this is a decision which is based on one’s opinion to the best of one’s ability. It is a discretionary matter. I am satisfied that the returning officers did act to the best of their abilities and with complete fairness.
In accordance with s. 221 of the Organic Law a copy of the order of the court will be forwarded to the Clerk of Parliament.
Orders accordingly.
Solicitors for the petitioner: Warner Shand, Wilson & Associates.
First respondent in person.
Solicitors for second respondent: The Principal Legal Adviser.