N706

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ROVA MAHA

V

TAU IAN LESA AND ELECTORAL COMMISSION

Waigani
Andrew AJ

27 February 1989

PARLIAMENT - Elections - Voting - Postal votes - Validity - Compliance with directions as to - Postal vote declaration - To be signed by elector and authorised witness - Failure to sign - Not substantial compliance - Provincial Government (Electoral Provisions) Regulation (Ch No 56).

PARLIAMENT - Elections - Disputed election petition - Orders on - Close count of votes - Real possibility of double voting - Declaration that election void.

The Provincial Government (Electoral Provisions) Regulation (Ch No 56) relevantly provides:

"s82. Directions for Postal Voting.

The following directions for regulating voting by means of postal ballot papers shall be substantially observed:

(a) the elector shall exhibit his postal ballot paper (unmarked) and his postal vote certificate to an authorised witness; and

(b) the elector shall indicate the grounds on which he wishes to vote by post by striking out those grounds in the postal vote certificate which do not apply to his particular case; and

(c) the form of declaration printed on the envelope bearing the postal vote certificate shall, after being filled in, be signed by the elector in the space provided for the signature of the voters in the presence of the authorised witness; and

(d) the authorised witness shall then and there sign his name in his own hand-writing in the declaration printed on the envelope bearing the postal vote certificate in the place provided for the signature of the authorised witness and shall add the title under which he acts as an authorised witness and the date; and

...

s83. Duty of Authorised Witness.

(1) The authorised witness must:

(a) comply with the provisions of section 82 insofar as they are to be complied with on his part; and

(b) see that the directions in that section are complied with by every elector voting by post before him, and by every person present when the elector votes; and ..."

The result of the count of votes following an election gave equal votes to two candidates. Four votes, counted for one candidate, were allowed as postal votes despite non-compliance with s 82(c) and (d). At the election a number of persons whose names appeared on a postal vote ballot list were permitted to vote in person but there was no evidence that any cross-checking had taken place.

Held

(1) Failure by an elector to sign the form of declaration printed on the envelope bearing the postal vote certificate in accordance with s 82(c) or failure by the authorised witness to sign in accordance with s 82(d) renders a postal vote informal because it means that s 82 of the Regulation has not been "substantially observed".

(2) The four disputed postal votes should be disallowed.

(3) Because the result was so close in circumstances where there was a real possibility that persons may have voted twice, it would not be just to declare any candidate duly elected and the election should be declared void.

Petition

This was the hearing of a petition disputing the validity of a provincial election brought pursuant to s 183 of the Provincial Government (Electoral Provisions) Regulation (Ch No 56).

Counsel

L Gavara-Nanu, for the petitioner.
A David, for the first respondent.
J Sirigoi, for the second respondent/Electoral Commission.

27 February 1989

ANDREW AJ: This is a petition to the National Court pursuant to s 183 of the Provincial Government (Electoral Provisions) Regulation (Ch No 56) disputing the validity of the election and return for the electorate of Rigo-East Coast in the Central Province elections held last year.

The counting of the votes was initially conducted at Kwikila on Saturday, 11 July 1988 and there was then a recount on Monday, 13 July, again at Kwikila and then another recount in Port Moresby on Tuesday, 14 July. The end result was that both the petitioner and respondent were tied with 701 votes each. The Deputy Electoral Commissioner, who had supervised the second recount, then decided the result by drawing lots in accordance with s 146 of the Provincial Government (Electoral Provisions) Regulation (the Regulation). The result was that the first respondent, Mr Tau Ian Lesa, was declared the duly elected member.

The petition contains 15 grounds mainly relating to irregularities in electoral procedures but there is one ground alleging undue influence by the first respondent and an allegation of bias against Mr Richard Vagi, who was the Returning Officer. These last two grounds were not pressed and I am satisfied that there is no evidence of undue influence on behalf of Mr Lesa. Mr Richard Vagi has given evidence and I was impressed with his honesty and the evidence indicates that he conducted a very fair election and was diligent in carrying out all of his duties. I accept all of his evidence.

The real dispute in issue is the allowance of some postal votes which were included in Mr Tau Lesa’s total. On the initial counting on Saturday, 11 July, the postal votes were counted at Port Moresby central tally room under the supervision of Mr Richard Vagi. Three of these votes were disallowed because the form of declaration printed on the envelope bearing the postal vote certificate was not signed by the elector or by the authorised witness as required by s 82 of the Regulation and they were not opened. The fourth postal vote was declared informal because it was not in an official envelope, was unsigned and did not show the intention of the voter.

At the recount at Kwikila on Monday, 13 July, the Returning Officer was placed under some pressure by various scrutineers to again consider these postal votes. He says in evidence here that he decided to open the three disallowed postal votes because of the pressure he was under. He then decided to allow them as valid votes because the postal vote certificate was completed showing who the voter was and he was able to confirm that they were on the roll and on the postal vote list and because the ballot paper was clearly marked correctly. He considered that, although the declaration was not completed, it would be unfair to disallow them because the elector might not properly have understood the declaration or perhaps could not read English or perhaps did not know what "authorised witness" meant or did not fully understand the general rules of postal voting. He thought the important thing was that the ballot paper was correctly marked and the elector was identifiable by reason of the certificate having been completed. Two of these votes were for Mr Tau Lesa and the third was for Mr Tau Pokana (an unsuccessful candidate, not the petitioner). The result of Monday night’s recount was 701 to both Mr Maha and Mr Lesa. These postal votes were again counted on Tuesday night’s recount where the result was the same.

The question is therefore whether these two postal votes for Mr Tau Lesa should have been allowed or not. All of the postal votes have been tendered in evidence and were brought to court under seal in a ballot box. There were 37 postal votes altogether. The examination of these has identified the two votes in dispute and, in addition, it was discovered that another two did not bear the signature of the authorised witness. These were also votes for Mr Tau Lesa.

Section 82 of the Regulation is as follows:

"s82. Directions for Postal Voting.

The following directions for regulating voting by means of postal ballot papers shall be substantially observed:

(a) the elector shall exhibit his postal ballot paper (unmarked) and his postal vote certificate to an authorised witness; and

(b) the elector shall indicate the grounds on which he wishes to vote by post by striking out those grounds in the postal vote certificate which do not apply to his particular case; and

(c) the form of declaration printed on the envelope bearing the postal vote certificate shall, after being filled in be signed by the elector in the space provided for the signature of the voters in the presence of the authorised witness; and

(d) the authorised witness shall then and there sign his name in his own hand-writing in the declaration printed on the envelope bearing the postal vote certificate in the place provided for the signature of the authorised witness and shall add the title under which he acts as an authorised witness and the date; and

...

83. Duty of Authorised Witness.

(1) The authorised witness must:

(a) comply with the provisions of section 82 insofar as they are to be complied with on his part; and

(b) see that the directions in that section are complied with by every elector voting by post before him, and by every person present when the elector votes; and

..." (My emphasis.)

The postal vote envelope contains the postal vote certificate on the back in printed form together with the form of declaration. I think it should be pointed out that the declaration is part of the overall postal vote certificate even though there is a line drawn between the two. This is indicated by s 82(b) of the Regulation where the elector is instructed to strike out the grounds in the postal vote certificate which do not apply in his case and these grounds are contained in the declaration section. The first section, entitled "Postal Vote Certificate", includes the elector’s name, sex, place of residence appearing on Roll and occupation, and is certified by the Returning Officer to the effect that the elector is entitled to vote by post and in respect of which constituency. In the declaration section, the elector must indicate that he has not already voted and he must indicate the reasons why he is unable to attend at the normal polling. The various reasons why he may not be able to do so are set out in printed form, for example, will not be within the constituency; is seriously ill and cannot attend; by reason of approaching maternity will be unable to attend; by reason of membership of a religious order is precluded from attending, etc. The further wording of the declaration is as follows:

"I am aware that if I falsely personate or attempt to personate any other person for the purposes of securing a ballot paper to which I am not entitled, or for the purpose of voting at an election, or wilfully make a false statement in this declaration, I am liable to imprisonment for six (6) months."

Then follows the space for the elector’s signature and the authorised witness together with his occupation and address.

Counsel for the Electoral Commissioner submits that the directions for postal voting contained in s 82 of the Regulation have only to be "substantially observed" and that they are not mandatory and do not create strict requirements. But the purpose of s 82 of the Regulation is to give effect to the requirements for eligibility to vote by post as set out in s 74. They are the requirements which I have previously indicated are printed on the declaration, that is, absence, illness, approaching maternity, religious belief, etc. By completing the declaration form and signing it, the elector is establishing that he is entitled to vote by post for one of these reasons. He also signs to attest to the fact that he has not made any false statement. This goes to the whole basis of postal voting and thus, if the declaration is not signed, it cannot be said that the Regulation has been "substantially observed" as there has really been no observation at all. Furthermore, the requirement that the authorised witness shall sign in s 82(d) is made mandatory by the wording in s 83 which states that "an authorised witness must comply with section 82" (My emphasis). If one then turns to Div 3 of Pt XIV of the Regulation — Provisions Relating to the Scrutiny of Postal Votes — it can be seen by s 134(1)(b) that the Returning Officer shall examine each certificate and, if satisfied that the declaration purports to be witnessed by an authorised witness, accept the ballot papers for further scrutiny.

I find that failure by an elector to sign the form of declaration printed on the envelope bearing the postal vote certificate or failure by the authorised witness to sign renders a postal vote informal for it means that s 82 of the Regulation has not been substantially observed.

It follows that the two postal votes now before the Court which are not signed by the elector or by the witness are informal and the two postal votes without the authorised witness’s signature are also informal and should be disallowed. These were all votes for Mr Tau Lesa and accordingly should be deducted from his total. This means, of course, that Mr Rova Maha would be ahead by four.

There are, however, other matters to be considered. A sectional vote was also in dispute (sectional vote no 1335) which was discounted by the Returning Officer because it did not have an envelope as required. I accept Mr Vagi’s evidence that it did not have an envelope and I find that he was correct in not counting it. Evidence was called from Mr Joe Maina Kora who was an Assistant Presiding Officer during the election. He said that, on 25 June 1988 at Babaka village, he was given the postal vote ballot list. A number of people approached him whose names were on the list. He said he wrote down in the remarks column on his polling papers, "Already voted at Babaka" and he also allowed them to vote. This was so that this could be checked against the names of persons who had voted by postal vote to prevent persons voting twice. He said this happened on more than five occasions. He did not have the postal vote list with him during the whole of the polling. This raises a real possibility that persons were allowed to vote twice and, in addition, there is no evidence that the information in the remarks column was ever checked against the names of those who voted by postal vote.

The petitioner must show that he has enough valid votes actually to win. By disallowing the four postal votes for Mr Tau Lesa, he would win by four. But here the result is so close in circumstances where there is a real possibility that persons may have voted twice that I have come to the conclusion that I should void the election. It could not be said to the requisite degree of proof required that the petitioner had won by four votes and, accordingly, it would not be just, in my view, to declare the petitioner duly elected.

I declare that the Provincial election for Rigo-East Coast Electorate was absolutely void and further order that the deposit be repaid to the petitioner. The Registrar will forward a copy of the order to the Premier. The effect of this order is that a new election shall be held.

Election declared void

___________________

Lawyers for the petitioner: L Gavara-Nanu & Co.
Lawyers for the first respondent: Namaliu & Co.
Lawyer for the second respondent: The State Solicitor.