national court of justice

MATHEW POIA

v

ELECTORAL COMMISSION OF PAPUA NEW GUINEA; AND
FABIAN INNE

waigani: kapi dcj

7– 9, 12–16 May; 20 June 2003

Election – Petition disputing result of national election – Grounds – Outer seal broken with the lock securely fastened – No evidence of tampering with the lock – Ballot box disputed at the counting – Organic Law on National and Local-level Government Elections, s 215; s 218.

Facts

Election petition challenging the election of Fabian Ine'e as member for Goilala Open Electorate on grounds of (1) an illegal practice, namely, tampering of ballot box number CENT 0242 (disputed box) contrary to s215 (3) of the Organic Law on National and Local-level Government Elections (Organic Law) and (2) error on the part of Joseph Merusa (Returning Officer) in counting the disputed box contrary to s218 (1) of the Organic Law.

Held

1.	Court is satisafied that there is no evidence that the lock to the disputed box was tampered with at any time and that no ballot papers were unlawfully inserted or taken out from the disputed box. 

2.	Consequently the Returning Officer did not err in counting the disputed box.

Papua New Guinea cases cited

Reuben Kaiulo v James Ganarabo & Ron Ganarafo (Unreported Judgment of the Supreme Court dated 5 October 1998, SC567).

Counsel

J Lai, for the petitioner.
D Kombagle, for the first respondent.
T Rei, for the second respondent.

20 June, 2003 

Kapi dcj. (as he then was) The election petition challenges the election of Fabian Ine'e (second respondent) as member for Goilala Open Electorate on grounds of (1) an illegal practice, namely, tampering of ballot box number CENT 0242 (disputed box) contrary to s215 (3) of the Organic Law on National and Local-level Government Elections (Organic Law) and (2) error on the part of Joseph Merusa (Returning Officer) in counting the disputed box contrary to s218 (1) of the Organic Law. I have fully set out these grounds in my ruling on objection to competency in this matter (see Unreported Judgment of the National Court dated 6 May 2003, N2364). 

The relevant facts which are not in dispute may be summarized as follows. The counting of votes in relation to the Goilala Open Electorate was conducted between 10 – 13 July, 2002 at the counting centre at Police Gymnasium Gordons Police Barracks in the National Capital District.

The counting progressed well until a dispute arose in respect of the counting of the disputed box. The disputed box was to have constituted count 18. When objections were raised by several scrutineers, the disputed box was put aside to await the total count of all the ballot boxes without making any final decision on whether to count or not to count the box. When all the ballot boxes were counted with the exclusion of the disputed box, Mathew Poia (Petitioner) had a tally of 1008 votes and the second respondent had a tally of 988 votes. 

At this point, the question of the disputed box arose for consideration by the Returning Officer. The objection was raised on the basis that the serial number of the outer seal did not match the original seal that was fixed on the last day of polling on 4 July 2002. 

The Returning Officer then called Adrian Siperi (Presiding Officer) to explain. The Presiding Officer explained that the outer seal was found to have been broken twice and was replaced on both occasions with new seals in the presence of all the scrutineers. He explained that the seals may have been accidentally broken in the process of transportation. However, he further explained that the lock was always fastened and the keys to the lock were always in the custody of the policeman, Andrew Tou. 

In the exercise of his discretion, the Returning Officer was satisfied with the explanation in respect of the outer seal and the security of the disputed box and he counted the disputed box. This constituted count 29 and at the end of the count of the disputed box, the second respondent received a total of 1020 votes and the Petitioner received 1009 votes. The second respondent led the counting by 11 (eleven) votes and he was declared the winner of the Goilala Open Electorate on 13 July, 2002.

Was there any tampering with the disputed box?

Ground 1 of the petition alleges:

(a)	that when the ballot boxes were waiting to be airlifted by a charted aircraft from Woitape to Port Moresby on 8 July 2002, it was discovered that the lock was missing and the outer seal was broken in respect of the disputed box.

(b)	that the broken outer seal was replaced by the Presiding Officer in the presence of the scrutineers with a new one and the serial numbers recorded. 

(c)	that when the boxes were flown to Port Moresby and transported to the Police HQ in Konedobu, the outer seal was again found to have been broken. That the outer seal was replaced by the Presiding Officer with a new seal in the presence of the scrutineers and the serial number noted.

(d)	that when the box was taken out for counting at the counting centre on 12 July, 2002, the outer seal was again found to have been broken. 

Team 15A was led by the Presiding Officer and he was allocated the following places to conduct the polling in the Goilala Open Electorate in the 2002 National Elections: Tokio, Kosipe, Yeme, Uruna, Fatima and Iri, Singe and Idiba. The Presiding Officer was issued with two ballot boxes CENT 0241 and CENT 0242 (the disputed box) for polling in the places referred to above. The team conducted the poll in Tokio, Kosipe and Yeme and eligible voters casted their ballot papers in box CENT 0241. There is no dispute with regard to this box.

Eligible voters in Uruna, Fatima, Iri, Singe and Idiba casted their votes in the disputed box. The polling in these places were conducted on the 2, 3 and 4 July, 2002. 

In support of the allegations, the petitioner relied upon four affidavits:

1.	Affidavit of Joseph Atei sworn and filed on 30 September, 2002.

2.	Affidavit of Mathew Poia sworn and filed on 3 October, 2002.

3.	Affidavit of Peter Michael sworn and filed on 30 September, 2002.

4.	Affidavit of Michael Kakai sworn 17 October, 2002 and filed on 31 October, 2002. 

Each of the deponents were made available for cross examination.

In response, the first respondent relies upon the following affidavits:

1.	Affidavit of Adrian Siperi sworn 25 October, 2002 and filed 28 October, 2002.

2.	Affidavit of Joseph Merusa sworn 25 October, 2002 and filed 28 October 2002.

These deponents were cross-examined by counsel for the Petitioner.

The first respondent also called oral evidence, Andrew Tou, a policeman who was in-charge of security for Team 15. The first respondent also called Michael Malabag from Electoral Commission. These witnesses were also cross-examined by counsel for the petitioner.

I have taken into account all the evidence that has been brought before me by oral evidence, by affidavit and all other documentary evidence admitted by consent of the parties. In determining the matters of dispute I have born in mind the general principles in determining matters of fact in election petitions.

The last place of polling in respect of the disputed box was in Iri, Singe and Idiba on 4 July, 2002. There is no question about the inner seal to the disputed box. At the end of the polling, the Presiding Officer sealed the outer seal with a plastic seal. The ballot box was securely locked with a lock. This procedure was carried out by the Presiding Officer in the presence of the scrutineers. The ballot boxes including the disputed box were placed under the security of police who accompanied Team 15A during the polling. The keys to the disputed box were placed in the custody of the policeman Andrew Tou who was in charge of security of all ballot boxes. 

In Woitape, the ballot boxes were kept in the custody of the police in a policeman's house which was used as a police station. There is no complaint about the security of the ballot box from the place of the last polling to Woitape police station.

On the 8 July, 2002, the disputed box was transported from the police station to the airport at Woitape to be airlifted to Port Moresby on a chartered aircraft. When the boxes reached the airport, the Petitioner alleges that the outer seal was found to have been broken and there was no lock on the box. 

There is no dispute that the outer seal was found to be broken at Woitape airport. Subsequently, the outer seal was found to be broken twice, at the Police Headquarters at Konebobu after the boxes were flown in from Woitape on 8 July, 2002 and at the time of the counting of the ballot box at the counting centre. On both occasions at Woitape and the Police Headquarters, the Presiding Officer replaced the seal with a new seal. This explains the difference in the serial numbers of the seal from the original that was fixed on the 4 July 2002 and the last seal that was placed at the Police Headquarters at Konedobu. 

Was The Lock Removed?

The question is whether there was a lock fastened to the disputed box at Woitape airport where the outer seal was found to have been broken? 

According to the witness Joseph Atei, he stated in paragraph 6 of his affidavit sworn 30 September, 2002 that there was no lock on the disputed box. However, in examination in chief and cross-examination, he admitted that there was a lock but that it was unlocked and was hanging loose on the revert of the box. He stated in evidence in Court that the lock was then securely taped on to the revert region of the ballot box. 

The evidence of Michael Kakai is contained in affidavit sworn 17 October, 2002. He gave evidence of witnessing the arrival of ballot boxes from Woitape at the Police Headquarters in Konedobu on 8 July, 2002. His evidence relates to witnessing the broken outer plastic seal in respect of the disputed box. He gave no evidence that lock was unlocked and fastened on to the revert area with a sticky tape.

On the other hand, the evidence given by the Presiding Officer and the policeman in charge of security of the ballot boxes that the lock was always locked and remained fastened to the revert of the disputed box. His evidence is that at no stage was the lock unlocked or that the revert to the box was reaped out.

In this regard, I prefer the evidence of the Presiding Officer and the policeman that there was a lock and it was securely fastened on the disputed box. Whether or not there was a lock and was securely fastened to the box was a fact which should be known to all scrutineers and others who saw the ballot box. I do not accept the evidence given by the witnesses for the Petitioner. The witness Joseph Atei stated in his affidavit that there was no lock. However, he changed the story in Court that there was a lock but it was unlocked and was hanging lose. No other scrutineers complained about the lock in this manner. 

Moreover, the evidence given by the Petitioner's witnesses do not have the ring of truth. Witness Joseph Atei indicated that when the box was opened at Woitape Airport, the inner seal was broken. This evidence has no basis because there is no dispute that the inner seal was not broken. When this witness was recalled, he disputed that the box tendered in evidence was a different box. According to him the box he saw had the revert of the box completely reaped off. This evidence is false and I reject it. If this were the truth all the scrutineers would have seen this. No other witness was called to support this allegation. 

I do not accept the evidence given by petitioner's witnesses where it conflicts with the evidence of the respondent's evidence on the disputed matters.

I believe the evidence of the Presiding Officer and the policeman that the lock was secured to the ballot box all the time.

I have reached the conclusion that the outer seal was found to be broken three times; at Woitape, Police Headquarters and on the day of the count of the disputed box. Were the seals deliberately broken and by whom? It is not easy to determine this. I have examined the first seal that was found to have been broken. The broken seal suggests that it may have been partially broken by a sharp instrument and partly by just breaking the seal without a sharp instrument. The second seal that was found to be broken appears to have been broken without a sharp instrument. I cannot make a conclusive finding as to the manner in which the seals were broken and who would have done it. In this regard, there was no suggestion made to the Presiding Officer or the policeman that they broke the seal or allowed anyone else to break the seal. Nor was there any suggestion made that anybody else other than the Presiding Officer or the policeman broke the seals.

Can it be concluded from the fact that the outer seals were broken affects the integrity of the ballot box? The Returning Officer concluded that the seals may have been accidentally broken and that the integrity of the disputed box was not affected and therefore counted the box.

Section 126 (7) (c) provides

"An Organic Law shall make provision for and in respect of-

(c) 	safeguarding the integrity of elections."

The Electoral Commission is given the primary responsibility to "organize and conduct elections." (s 15 of the Organic Law)

Section 122 of the Organic Law provides:

"122.	Ballot-boxes.

(1)	Each polling booth shall be provided with the necessary ballot-box or ballot-boxes.

(2)	A ballot-box shall have a cleft in the cover through which the ballot-papers may be deposited in the box, and shall be provided with means for securely closing the cleft so that, when the cleft is so closed, no ballot-papers or other matters or things can be deposited or placed in the box or withdrawn from it.

(3)	A ballot-box shall be capable of being securely fastened with a lock."

This provision prescribes the type of box with a cover that has a cleft for depositing ballot papers. That there should be a means by which the cleft may be securely closed to ensure that no ballot paper may be deposited in the box or withdrawn from it. The whole box shall be capable of being securely fastened with a lock. The disputed box complies with this prescription. 

So long as the box is securely fastened with a lock, no further ballot paper may be deposited or withdrawn from it. Thus this section provides for safeguarding of the ballot papers in accordance with s 126 (7) (c) of the Organic Law.

The Organic Law does not make any provision for seals to be placed on the inner or outer sections of the ballot box. In the present case, it is not disputed that the seals were placed in the inner cover and the outer cover of the disputed box. For the present purposes, I will assume that the procedures established by the Electoral Commission in the Presiding Officer's Guidelines 2002 to provide seals is not in any way inconsistent with safeguarding the integrity of the elections. 

The question is; whether the breaking of the outer seal necessarily results in the integrity of the ballot papers in the box being affected? The purpose of the plastic seals may be gleaned from the guidelines set out by the Electoral Commission in the Presiding Officer's Guidelines 2002. Clause 4.4 sets out the procedure for seal/lock ballot boxes procedures:

"SEALS/LOCK BALLOT BOXES PROCEDURES.

The Returning Officer (sic. Should be Presiding Officer) must:

show the empty boxes to the scrutineers and other voters present;

close the ballot box;

seal it with numbered plastic seals;

record details in the Presiding Officer's memo book (form 65); 

have the entry witnessed by Scrutineers;

allow any scrutineers who may wish to do so to record the seal numbers.

Alternatively the Presiding Officer will carry out the sealing process of ballot box in the midst of the crowd prior to the commencement of the polling at a poll booth, following the same procedure as above.

LOCK SEAL

The Presiding Officer will be issued with all necessary plastic seals including locks, keys, plastic numbered seals and tags to carry out the sealing process.

Plastic seal numbers MUST be given to the scrutineers before and the end of the voting each day to avoid any complaints or accusation by them or their supporters. The seal numbers MUST be recorded into the memo book (form 65) and at least two scrutineers (if available) are to sign as witness.

The safe keeping of the ballot boxes containing ballot papers is the responsibility of the Presiding Officer. The Returning Officer or the Assistant Returning Officer will advise you of any arrangements made.

On the completion of the polling, the Presiding Officer is to hand over to the Returning Officer all ballot boxes that have been issued to him, whether used or unused. ALL BALLOT BOXES ARE ACCOUNTABLE.

Important: The lock and seal on the inner Lid must not be touched, as it can be only broken by the Returning Officer prior to the commencement of the scrutiny at the counting centre"

A similar issue arose in Reuben Kaiulo v James Ganarabo & Ron Ganarafo (Unreported Judgment of the Supreme Court dated 5 October 1998, SC567). The disputed boxes in question had no outer seals fixed on the basis that the Electoral Commission officials ran out of seals. The question was whether the absence of the seals affected the integrity of the boxes. Amet CJ stated:

"The two boxes 0024 and 0047B were each secured on the inside with a tag and "securely fastened with a lock" on the outside, as the minimum requirement of s. 122, so that "no ballot papers or other matters can be deposited or placed in the box or withdrawn from it". There was no allegation or evidence that any ballot papers or other matters were deposited or attempts made to deposit any in the two boxes. In my opinion, simply because the boxes did not have an outer tag that does not render their integrity questionable. They each had a lock that was intact on the outside. There was no basis therefore on this evidence for the boxes not to have been counted. Secondly, there was no allegation in the Petition that the ballot boxes were tampered with whilst being brought to Goroka. They were in Police custody all the time. There is no allegation that, at the police station they were tampered with. They always had the pad locks on the outside. They were under police custody."

I concluded:

"The only question that remains to be considered in respect of the integrity of these ballot boxes is the possibility of interference with these boxes by inserting ballot papers in the two boxes while they were being transported between Kasena and Goroka Police Station. The undisputed evidence is that the ballot boxes were taken into police custody and they were transported in a police vehicle to Goroka Police Station. There is no suggestion by anyone that the ballot boxes were interfered with during this period. Consistent with this, all candidates and their scrutineers agreed to count these two boxes during the counting of votes. In the circumstances I cannot find any reason to doubt the integrity of the two ballot boxes. The counting of votes in these two boxes were valid."

During submissions, counsel for the petitioner conceded that if the lock to the disputed box remained intact throughout, the integrity of the box would not be called into question. With respect this is a proper concession. I am satisfied that there is no suggestion that the lock to the disputed box was tampered with at any time and that no ballot papers were unlawfully inserted or taken out from the disputed box. Consequently I have reached the conclusion that the Returning Officer did not err in counting the disputed box.

In the result I would dismiss the petition with costs to the respondents.

Lawyers for the petitioner: Narokobi Lawyers.
Lawyers for the first respondent: Parua Lawyers.
Lawyers for the second respondent: T M Rei Lawyers.