N3286

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT 
ELECTIONS AND A PETITION DISPUTING THE VALIDITY
 OF THE ELECTION FOR THE SEAT OF WESTERN
HIGHLANDS PROVINCIAL IN THE 2007
GENERAL ELECTION

PAIAS WINGTI
Petitioner

V

KALA RAWALI, 
PROVINCIAL RETURNING OFFICER
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

TOM OLGA
Third Respondent

Mt Hagen: Cannings J
2008: 24, 25, 28, 29, 30, 31 January,
1 February,
3, 14 March

JUDGMENT

ELECTIONS – petitions – decision of returning officer to refuse to admit ballot boxes to scrutiny – Organic Law on National and Local-level Government Elections, Section 153A – Electoral Law (National Elections) Regulation 2007, Section 90 – whether a Provincial returning officer can rely on the decision of an Open returning officer – whether a decision to refuse to admit ballot boxes to scrutiny must be documented – whether the returning officer is obliged to give reasons for a decision.

ELECTIONS – petition – whether sufficient evidence of tampering with ballot papers at or in the vicinity of the counting centre – whether discrepancies existed in tally sheets – whether discrepancies were material – circumstances in which it is proper for the court to order a recount of votes.

ELECTIONS – petitions – whether errors or omissions by an electoral officer revealed in the hearing of a petition that were not alleged in the grounds of the petition can be taken into account in deciding whether to exercise the National Court’s powers under Organic Law, Section 212.

An unsuccessful candidate challenged the result of an election to the National Parliament through an election petition, relying on two grounds: errors and omissions by electoral officials resulting in the failure to count five ballot boxes containing about 3,181 votes (ground 1) and errors or omissions at the counting centre (ground 2). As to ground 1, the petitioner alleged that the returning officer failed to properly exercise his discretion to reject the ballot boxes, failed to follow proper procedures and rejected the ballot boxes without good reason, contrary to the Organic Law, Section 153A, which states, amongst other things:

… a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot papers where he is of the opinion that:—

(a)	the ballot papers in it were not lawfully casted [sic]; or

(b)	the ballot box was tampered with and the integrity of the ballot-papers in it were compromised [sic].

As to ground 2, the petitioner alleged that illegal or improper practices and/or errors or omissions were committed at or around the counting centre, in that: counting officials were intimidated, there was inadequate control and security of ballot papers, ballot papers were tampered with, there were material discrepancies in the tally sheets and three disputed ballot boxes were not counted until after the distribution of preferences, creating reasonable doubt over the reliability of the result declared by the returning officer.

Held:

(1)	If a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot box to scrutiny.

(2)	The returning officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of Section 153A and the reasons for forming that opinion.

(3)	The returning officer is responsible for conducting the scrutiny (ie counting of votes) at a counting centre and must maintain peace and good order in the counting centre and ensure adequate control and security of the ballot papers so as to preserve the integrity of the scrutiny and produce a reliable result.

(4)	A returning officer has a duty to minimise discrepancies in tallies for candidates and to remove reasonable grounds for believing that the result is unreliable.

(5)	In deciding whether to order a re-count of all ballot papers in an electorate the National Court may consider all the circumstances of the case including errors or omissions by electoral officials that were not expressly alleged in a petition, provided that their revelation was incidental to a determination of the express grounds of the petition, that the respondents have had the opportunity to be heard on those issues and that to decide the petition on those issues would not be otherwise contrary to the principles of natural justice.

(6)	In the present case, re ground 1: the Provincial returning officer erred by failing to exercise the discretion conferred on him by the Organic Law, instead abdicating responsibility to the Open returning officers, and failing to document the decisions made under Section 153A and provide reasons for his decisions. Further, there was insufficient evidence to conclude that the five contentious ballot boxes should be rejected. Ground 1 was accordingly upheld.

(7)	All of the issues the petitioner wanted to raise under the rubric of ground 2 were properly before the court, as they were either expressly set out in the petition or their revelation was incidental to a determination of the express grounds of the petition, and there was no breach of natural justice in determining them.

(8)	Re ground 2, the petitioner failed to prove that counting officials were intimidated, but proved: that there was inadequate control and security of ballot papers; that there were reasonable grounds for suspecting ballot papers were tampered with; that there were material discrepancies in the tally sheets; and that there was a material irregularity in the timing of the counting of three disputed ballot boxes; thereby creating reasonable doubt over the reliability of the result declared by the returning officer.

(9)	Given the proven errors and reasonable doubt about the reliability of the result, this is an appropriate case in which the court should order a re-count.

(10)	An order for a recount was made, including an order that the ballot papers in the five contentious ballot boxes be included in the recount.

Cases cited:

Ambane v Electoral Commission and Tumun (1998) SC565
Application by Ben Semri (2003) SC723
Assik Tommy Tomscoll v Ben Semri (2003) N2349
Delba Biri v Bill Ninkama [1982] PNGLR 342
Jim Nomane v David Anggo and Others (2005) N28
Kakale v Pundari [1993] PNGLR 454
Kamma v Itanu, Electoral Commission and Laimo (2008) N3246
Maino v Avei [1998] PNGLR 178
Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797
Niggints v Tokam [1993] PNGLR 66
Ombudsman Commission v Peter Yama (2004) SC747
Paias Wingti v Kala Rawali, The Electoral Commission and Tom Olga, EP55 of 2007, 23.01.08
Paua v Nagle [1992] PNGLR 563
Peter Peipul v Pila Niningi (1998) SC580
Reipa v Electoral Commission and Bao (1999) SC606

Abbreviations

The following abbreviations appear in the judgment:

aka	– also known as	
ARO	– assistant returning officer	
CJ	– Chief Justice	
DCJ	– Deputy Chief Justice	
EP	– election petition	
IT	– information technology	
J	– Justice	
LLG	– Local Level Government	
LPV	– limited preferential voting	
N	– National Court judgment	
No	– number	
PNGLR	– Papua New Guinea Law Reports	
PRO	– Provincial Returning Officer	
RO	– returning officer	
SC	– Supreme Court judgment	
v	– versus	
WH	– Western Highlands	
WHP	– Western Highlands Province	

Glossary of names

The following people and places are referred to in the judgment:

People

Andrew Trawen – Electoral Commissioner
Ben Mark – ARO, Dei Open – petitioner’s witness No 1
Boki Raga – Director Policy, Electoral Commission – respondents’ witness No 3
Casper Laka – WH Provincial candidate
David Kolima – presiding officer, Keltiga, team 30
James Meteng – polling official, Mala 2, team 25
John Nonggorr – principal of Nonggorr Lawyers, adviser to Electoral Commission
Kala Rawali – Provincial returning officer, 1st respondent – respondents’ witness No 4
Luke Ruk – village leader, Mala
Melchior Pep – Dei Open candidate
Michael Wakene – counting official, WH Provincial – petitioner’s witness No 5
Michael Wandil – WH Provincial administrator
Paias Wingti – WH Provincial candidate, runner-up, petitioner
Paul Goimba – returning officer, Hagen Open – respondents’ witness No 2
Philip Puk – polling official, Mala 2, team 26
Puri Ruing – member for Dei Open
Raphael Agua – presiding officer, Keltiga and Korkum – petitioner’s witness No 2
Raphael Angra – aka Raphael Agua
Ray William – lawyer with Nonggorr Lawyers, adviser to Electoral Commission
Robert Enga – candidate for WH Provincial, 1st eliminated
Rogana Mala – Systems Analyst, Electoral Commission – respondents’ witness No 5
Rolgka – tribe in Dei district
Roslyn David – counting official, WH Provincial
Roy Pena Roltinga – Dei Open candidate, runner-up
Sanege Wapra – aka Wama Wapra
Steven Korowa – returning officer, Dei Open – respondents’ witness No 1
Tiene Openakale – acting Provincial returning officer, WH – petitioner’s witness No 4
Timothy Mel – polling official, Mala 2, team 26
Timothy Roika – counting official at Provincial counting centre
Tom Korowa – scrutineer for Paias Wingti – petitioner’s witness No 6
Tom Olga – member for Western Highlands Provincial, 3rd respondent
Wai Rapa – WH Provincial candidate, 24th eliminated
Wama Wapra – presiding officer, Mala 2, team 26
William Reia – presiding officer, Mala 2, team 25 – petitioner’s witness No 2

Places

Banz – town in North Wahgi district
Hagen Tee – another name for Korkum
Keltiga – polling place, Hagen Open and WH electorates
Keremunga – village/polling place in Dei district
Kimininga – police barracks – counting centre
Korkum – polling place, Hagen Open and WH electorates
Kotna – LLG area in Dei district
Mala 1 – polling place, Dei Open and WH electorates
Mala 2 – polling place, Dei Open and WH electorates
Mt Hagen – capital, Western Highlands Province
Muglamp – district headquarters, Dei district
Palimb – polling place, Hagen Open and WH electorates
Romonga – polling place, Dei Open and WH electorates
Tega – polling place, Hagen Open and WH electorates

Terminology and dates

In this judgment:

•	‘the Organic Law’ refers to the Organic Law on National and Local-level Government Elections;

•	‘the Regulation’ refers to the Electoral Law (National Elections) Regulation 2007, made under the Organic Law;

•	dates refer to the year 2007 unless otherwise indicated.

PETITION

This is a judgment following the hearing of an election petition.

Counsel

A Manase, for the petitioner
A Kongri, for the first and second respondents
H Nii, for the third respondent

1. CANNINGS J:	Mr Paias Wingti was the runner-up in the Western Highlands Provincial electorate in the 2007 general election. He has filed a petition disputing the election of Mr Tom Olga. This is a ruling on the petition.

2.	Mr Wingti polled 137,981 votes, compared to Mr Olga’s 141,286, thus losing by 3,305 votes.

3.	There were 26 candidates in the election. They were eliminated one by one under the LPV system. The final elimination – of candidate Mr Wai Rapa – took place on Sunday 5 August, leaving the election to be decided between Mr Wingti and Mr Olga. At that stage Mr Wingti was more than 10,000 votes in front: 127,779 compared to Mr Olga’s 117,410. Mr Rapa had accumulated 78,114 votes, which had to be distributed to Mr Wingti or Mr Olga or treated as ‘exhausted’ (ie preference votes in favour of neither Mr Wingti nor Mr Olga).

4.	On the evening of Sunday 5 August counting was suspended due to a National Court order. The ballot papers were taken from the counting centre to the Mt Hagen police station.

5.	The next day the court order was lifted, counting resumed and this revealed that Mr Olga secured more than twice as many of Mr Rapa’s preferences as Mr Wingti: 23,876 compared to Mr Wingti’s 10,202. This swung the result of the election.

6.	Mr Wingti went, overnight, from being more than 10,000 votes in front to losing by more than 3,000. He is unhappy about that.

7.	He had led practically all the way. There were 639 counts of first preference votes and Mr Wingti was in the lead from the second count. He led Mr Olga by almost 20,000 votes after counting of first preference votes. When counting went into the second phase – distribution of other candidates preferences – he led the count after each elimination. Only at the final hurdle did he fall.

8.	He claims that the Electoral Commission messed up the counting. He says five ballot boxes were not counted that should have been. Then in the dramatic last 24 hours before the result was declared on the night of Monday 6 August, counting officials and his scrutineers were intimidated, ballot papers were tampered with, there was poor security of the ballot boxes and many mistakes were made, which is borne out by what he says are discrepancies in the tally sheets. He wants a recount.

THE PETITION

9.	Mr Wingti has petitioned the Court to order a re-count of all ballot papers in the electorate and relies on two grounds.

10.	Ground No 1 alleges errors and omissions by electoral officials resulting in the failure to count five ballot boxes containing about 3,181 votes. The ballot boxes are those in the following table.

CONTENTIOUS BALLOT BOXES

No	Polling
place	Open electorate	Ballot box
No	Polling team
No	Ballot papers	
1	Mala 2	Dei Open	0315	25	1,159	
2	Mala 2	Dei Open	0316	26		
3	Keltiga	Hagen Open	0386	29/30	1,422	
4	Korkum	Hagen Open	0458	103	600	
5	Korkum	Hagen Open	0460	104		

11.	The last column shows the number of ballot papers that the petitioner claims were in the ballot boxes: 1,159 in the two Mala 2 boxes; 1,422 in the Keltiga box; and about 600 in the Korkum boxes. The respondents agree that ballot papers in the five ballot boxes were not counted but say that there are good reasons for that.

12.	Under ground No 2, the petitioner alleges that illegal or improper practices and/or errors or omissions were committed at or around the counting centre, in that: counting officials were intimidated, there was inadequate control and security of ballot papers, ballot papers were tampered with, there were material discrepancies in the tally sheets and three disputed ballot boxes were not counted until after the distribution of preferences, creating reasonable doubt over the reliability of the result declared by the returning officer.

13.	At the start of hearing I dismissed an objection to the competency of the petition (Paias Wingti v Kala Rawali, The Electoral Commission and Tom Olga, EP 55 of 2007, 23.01.08).

ISSUES

14.	The issues boil down to these:

(1)	Were errors or omissions committed by rejecting the Mala 2 boxes?
(2)	Were errors or omissions committed by rejecting the Keltiga box?
(3)	Were errors or omissions committed by rejecting the Korkum boxes?
(4)	Should ground 1 of the petition be upheld?
(5)	Were counting officials intimidated at the counting centre?
(6)	Was there inadequate control and security of ballot papers?
(7)	Were ballot papers tampered with on the night of 5 August?
(8)	Were there material discrepancies in the tally sheets?
(9)	Was anything wrong with the late counting of three disputed ballot boxes?
(10)	Should ground 2 of the petition be upheld?
(11)	Should the court order a recount or make any other orders or declarations concerning the election?

15.	The first four issues relate to ground 1 of the petition, the next six concern ground 2 and the last one is about the order, if any, that the court should make. The petitioner argues that all the issues should be answered yes. The respondents say they should all be answered no.

EVIDENCE

16.	Before addressing the issues I will summarise the evidence. Six witnesses were called by the petitioner to give oral evidence and six by the respondents, and 33 documentary exhibits were admitted into evidence.

Witnesses called by the petitioner

17.	The following witnesses were called by the petitioner:

(1)	Ben Mark – ARO, Dei Open.
(2)	William Reia – presiding officer, Mala 2.
(3)	Raphael Agua – presiding officer, Keltiga and Korkum.
(4)	Tiene Openakale – Electoral Commission Regional Operations Manager.
(5)	Michael Wakene – counting official, Western Highlands Provincial.
(6)	Tom Korowa – Mr Wingti’s counting centre scrutineer.

Witnesses called by the respondents

18.	The respondents called the following witnesses:

(1)	Steven Korowa – RO, Dei Open.
(2)	Paul Goimba – RO, Hagen Open.
(3)	Boki Raga – Electoral Commission Director of Policy.
(4)	Kala Rawali – PRO, ie the RO for Western Highlands Provincial.
(5)	Rogana Mala – Electoral Commission Systems Analyst, the ‘IT Man’.
(6)	Timothy Mel – polling official, Mala 2, team 26.

ORAL EVIDENCE BY WITNESSES CALLED BY THE PETITIONER

Ben Mark

Overview

19.	He was one of the two AROs for Dei Open, responsible for the Kotna LLG area. His evidence related to the first issue, concerning the Mala 2 ballot boxes, and supported the petitioner’s proposition that polling was conducted normally and the votes should have been counted.

Details

20.	Polling for Dei Open was supposed to take place on Friday 6 July but there was a delay in dispatching the polling teams from the district headquarters at Muglamp. The teams were eventually dispatched between 12.00 noon and 2.00 pm on Friday. He stayed at Muglamp after the teams were dispatched. With him were the returning officer, Steven Korowa, and the other ARO for Dei Open.

21.	The next day, Saturday 7 July, he drove from Muglamp to the Mala 1 polling place for routine check. He got to Mala 1 about 2.30 pm and the polling officials told him that they were almost finished. He drove to Mala 2, arriving around 3.15 pm. Polling was almost finished there too. He cast his own vote there. He left, following the Banz Road, intending to check other polling booths at Keremunga and Romonga. They had already finished polling. He waited until a police escort arrived about 8.00 pm, then they loaded the ballot boxes and took them to Mt Hagen, arriving about 10.00 or 11.00 pm.

22.	He was involved in the counting for Dei Open. The Mala boxes were brought in on 20 July. Presiding officers were required to verify the boxes for the polling booths they were responsible for. Scrutineers for two candidates, Puri Ruing and Melchior Pep, objected to the boxes from both Mala 1 and Mala 2 being counted, on the ground that voting had taken place at night. There were 12 other candidates, but their scrutineers had no complaints about the Mala boxes. The returning officer, Mr Korowa, said he also had complaint letters from Messrs Ruing and Pep so he would sideline the Mala boxes and interview the presiding officers. He (Mr Mark) tried to convince the returning officer that he was making his decision without evidence. But Mr Korowa said that he had the authority and stuck to his decision that the boxes be put aside, while counting of the other boxes continued. The Provincial ballot boxes from Mala 1 and 2 were also put aside. That was the standard procedure. If there was a problem with the boxes for an Open electorate, the Provincial boxes were held back too.

23.	The Dei Open counting centre was in a makeshift house, a tent on the soccer field at Kimininga Police Barracks. The Provincial counting centre was in a separate place, in the gymnasium.

24.	On 20 July he wrote a letter to the Provincial returning officer, Mr Kala Rawali, advising him that in his opinion there were no problems with polling at Mala 2.

25.	Mr Mark says that the interviews with the presiding officers were actually conducted by Mr Ray William, a legal adviser to the Electoral Commission. Mr William wrote a letter for Mr Korowa, which he brought into the counting centre. Mr Korowa explained that the advice from the lawyer was that there was no problem with Mala 1 but there was still a problem with Mala 2. So the Mala 1 votes were counted. The Mala 2 boxes remained sidelined and the votes were never counted.

26.	In cross-examination, Mr Mark said that polling materials were delivered to Muglamp on Wednesday 4 July. A pre-check of ballot papers was done on the afternoon of Thursday 5 July and continued through the night. It was not done on the morning of Friday 6 July. He denied that polling teams were not dispatched until 4.00 pm on Friday. They were dispatched between 12.00 and 2.00 pm. He denied that the returning officer instructed the teams not to start polling on Friday. Two teams were dispatched to Mala 1 and two to Mala 2.

27.	Polling took place at Mala 2 on Friday. He was told about that when he went there on Saturday. The polling officials told him they closed around 6.00 pm.

28.	He confirmed that the runner-up in the Dei Open electorate was Roy Pena Roltinga, who is his in-law’s brother.

29.	He is confident that there was no night voting at Mala 2.

William Reia

Overview

30.	He was a presiding officer for Mala 2 in the Dei Open electorate. His evidence related to the first issue, concerning the Mala 2 ballot boxes.

31.	He was one of only two witnesses who gave direct evidence of what happened at Mala 2. The other witness was Timothy Mel (respondents’ witness No 6) whose evidence was opposite to Mr Reia’s evidence. Mr Reia said that polling was conducted normally. His evidence supported the petitioner’s proposition that the Mala 2 votes should have been counted.

Details

32.	Polling was supposed to be completed on Friday 6 July but his team was not dispatched from Muglamp until between 12.30 and 1.00 pm. Two teams went to Mala 2. His was team 25. The presiding officer for the other team, 26, was Wama Wapra.

33.	They only had materials for one polling booth so they made two by splitting it in the middle, using a long table. They had four ballot boxes altogether. 

34.	Each team had one box for the Open electorate and one for the Provincial electorate. They started polling about 2.30 to 3.00 pm on Friday afternoon and stopped about 6.00 or 6.30 pm. He recorded less than 120 votes in that time. He then took the ballot boxes to the house of a village leader, Luke Ruk, accompanied by the police. Unused ballot papers were also stored there. He slept there with the police. James Meteng, a member of his team, also slept there. Wama Wapra and others stayed at Philip Puk’s house. Nothing untoward happened during the night.

35.	The next morning, they took the boxes back to the sing-sing area and set up the polling booth again. Polling continued without incident and finished about 4.00 pm. Ben Mark came to check on them around 3.30 pm. He told him that they had started the polling the day before and continued on that day (Saturday). After polling finished he closed the box and took it to Mala 1 about 5.30 pm. The police arrived and around 8.00 or 8.30 pm they left with the boxes for Mt Hagen.

36.	He was at the counting centre when the Mala boxes were brought in. The returning officer did not ask him and Wama Wapra to verify the boxes. Later, the Mala 1 boxes were counted, but the Mala 2 boxes were never counted.

37.	In cross-examination, Mr Reia was asked about paragraph 4 of his affidavit [exhibit 17] in which he says that polling commenced at 9.00 am on Saturday. He said that he had pointed out in his examination-in-chief that that was a mistake. There was polling on Friday afternoon.

38.	He denied marking ballot papers through Friday night. There was no voting after 6.00 pm or 6.30 pm. He denied that his team was dispatched from Muglamp at 4.00 pm on Friday. They left between 12.30 pm and 1.00 pm. The returning officer and his assistant did not tell him to start polling on Friday but he thought that polling should start then as Friday was the day allocated. The returning officer did not tell him that voting was only to take place on Saturday.

39.	When polling finished on Friday, he did not close the outer lid of the ballot boxes. There were no scrutineers present but he told the police and the voters what he was doing, and they and other polling officials agreed.

40.	At the counting centre Ray William asked him if voting took place at night and he told him no.

Raphael Agua

Overview

41.	He was a presiding officer for both Keltiga and Korkum polling places in the Hagen Open electorate. His evidence related to the second and third issues: whether errors or omissions were committed by not counting the Keltiga box and the two Korkum boxes.

42.	The Keltiga box was rejected because the ballot papers had too many signatures on the back. The Korkum boxes were rejected after polling was stopped by electoral officials. His evidence was that polling at both places was conducted normally and supported the petitioner’s proposition that votes from these two polling places should have been counted.

Details

43.	Voting took place at Keltiga on Friday 6 July without incident. He was in charge of team 29. There was also another team, No 30, led by David Kolima. There was only one polling booth.

44.	Voting took place at Korkum on both Friday 6 July and Saturday 7 July. He was not at Korkum on Friday when there was an incident involving supporters of rival candidates and voting was suspended. The Hagen Open returning officer, Paul Goimba, called him in to assist with voting at Korkum on Saturday. He told him to work with the other officials as one team because of the trouble that happened the previous day. Plenty of people came to exercise their right to vote on Saturday. He does not believe that they were the people who might have confiscated the ballot boxes the previous day. Polling was conducted as usual until the two AROs came and closed it. He does not know how many ballot papers are in the ballot boxes.

45.	When it came time for the Keltiga votes to be counted, scrutineers objected as the ballot papers had four signatures on the back; two presiding officers’ and two assistant presiding officers’ signatures. Professor Nonggorr was called in to provide advice and he gave the go ahead to count them.

46.	As for the Korkum votes, he was not called upon to verify the ballot papers and he does not know why.

Tiene Openakale

Overview

47.	He is the Operations Manager, Highlands Region, for the Electoral Commission. He was summoned to give evidence. His evidence related to ground 2: whether errors or omissions or illegal or improper practices were committed at the counting centre.

48.	He was present at the counting centre on the evening of Sunday 5 August when counting was suspended by a court order.

Details

49.	He has been employed by the Electoral Commission for more than 30 years. His role in the general election was to provide a link between officers in the field and head office in Port Moresby.

50.	He was appointed acting PRO for the Provincial electorate, on 2 August, when the PRO, Kala Rawali, became sick. He told Mr Rawali that he had been appointed to replace him.

51.	Mr Openakale regarded his task of acting PRO as being to supervise the counting and take total responsibility for the counting centre.

52.	He said that when he took up the acting appointment most of the counting was complete. He had no assistant returning officers working under him at the time; only the counting officials were working under him.

53.	When Mr Manase showed him two tally sheets for the Provincial electorate [exhibits 2A and 2B] he agreed that there were discrepancies between them.

54.	Form 66A is the tally sheet used at the counting centre, showing distribution of first preference votes received by each of the 26 candidates after each of the 639 counts. It gives a progressive tally of votes and concludes with a total of first preference votes for each candidate. The total is then posted to Form 66B, which is the tally sheet showing the distribution of preference votes, the number of exhausted votes and the order of each exclusion or elimination. Mr Openakale agreed that the totals posted to Form 66B were different to those at the end of Form 66A. The totals should have been the same.

55.	Asked by Mr Manase how the discrepancy arose, Mr Openakale replied ‘you will have to ask Kala Rawali’. He added that ‘this is not normal, the figures should match. Probably no quality check was done before the elimination process. The Provincial returning officer should have ensured that it was properly done and checked the actual ballot papers again if necessary’.

56.	He said he was not present when the result of the election was declared on Monday 6 August. He cannot now certify the correctness of the records.

57.	When Mr Manase drew his attention to count Nos 632 to 638, shown on the last page of Form 66A, he agreed that the ballot boxes from which the votes came was not shown and that those seven boxes produced a total of 2,117 votes. But, Mr Openakale said, he never went through the tally sheet and was not shown it. It was kept by the IT Manager. Someone else was in charge of the counting at that time, on 6 August.

58.	As for the previous day, 5 August – the day the National Court issued an order to suspend the counting – he was present at the counting centre but never sighted the court order. The person who actually suspended the counting was the Electoral Commission’s Director of Policy, Boki Raga. He does not think that Mr Raga had the authority to do that as his role is only to advise. Mr Rawali was at the counting centre in the morning but he is not sure if he was there in the afternoon.

59.	Once the counting was suspended, he (Mr Openakale) supervised the packing of the ballot papers into boxes for safekeeping. He observed the sorting and counting tables, including one table for exhausted votes, one for Mr Wingti’s votes and one table for Mr Olga’s votes.

60.	He was assisted in the packing of the ballot papers by two female counting officials, one of whom was Roslyn David. They put the papers in six or seven boxes. He gave them locks and asked them to take charge of the keys. He did not keep a record of the number of bundles of counted votes for the two candidates. All the boxes were locked up with sticky tape around each one.

61.	In cross-examination he could not remember which number elimination they were up to when he took over on 2 August. Mr Raga suspended counting on 5 August on his own accord.

62.	When counting was suspended the bundling up of Mr Wingti’s and Mr Olga’s votes had almost been completed.

63.	When he and the two female officials packed up the ballot papers the Police and Defence personnel stood back and watched them and did not chase away any counting officials. He does not know where the boxes were taken to. He just left the counting centre. He gave the officials the keys as he did not want to be implicated in not giving up the keys.

64.	During the period that he was at the counting centre, from 2 to 5 August, there was very little trouble. The only incident he recalled was when a scrutineer for Wai Rapa was told to quieten down. But no one was assaulted.

Michael Wakene

Overview

65.	He was a counting official for the Provincial electorate. His evidence related to ground 2: whether errors or omissions or illegal or improper practices were committed at the counting centre.

66.	He was present at the counting centre on the evening of Sunday 5 August when counting was suspended by a court order and on Monday 6 August when the result was declared. His evidence supported the petitioner’s proposition that something suspicious happened in that period that resulted in Mr Olga’s tally being boosted by about 5,000 votes.

Details
67.	On Sunday 5 August, the 24th elimination took place. Wai Rapa was eliminated on 78,488 votes, leaving two remaining candidates, Mr Wingti (125,271) and Mr Olga (116,976).

68.	Mr Wakene said that he cut the locks to the boxes securing Mr Rapa’s ballot papers and put them on the sorting table. The ballot papers were put into three categories: exhausted ballot papers; preference votes for Mr Wingti; and preference votes for Mr Olga. Most of Mr Rapa’s ballot papers were exhausted votes and filled three dining room-size tables. There were 7,000 to 9,000 ballot papers on each of the tables for Mr Wingti and Mr Olga.

69.	Then he and other officials started counting the ballot papers. Their practice was to first place them into bundles of 20s; then five bundles of 20s would be put into bundles of 100s; then five bundles of 100s would be put into bundles of 500s; then two bundles of 500s would be put into bundles of 1,000s.

70.	He was counting ballot papers at Mr Olga’s table. He and other officials surrounded the table, with Defence Force and Police Force personnel, counting together.

71.	The Electoral Commission officer Boki Raga came and asked the officials to stop counting as there was a court order that counting had to stop. At that time the ballot papers had been put into two or three bundles of 500s. There were plenty of loose ballot papers waiting to be counted. The ballot papers on the table for the exhausted votes had not been put into bundles. He could see Mr Wingti’s table from where he was standing and on it there were one or two bundles of 500s and the rest were in 20s and 100s and there were still some loose ballot papers on the table. From what he observed, Mr Wingti’s table had the same amount of ballot papers as Mr Olga’s table.

72.	The Police Force and Defence Force personnel who were present told him and the other counting officials they had to stay away from the tables. They were holding firearms. So he stood aside and at 6.30 pm went to his home which is near Mt Hagen airport. He did not see how the ballot papers were packed into boxes.

73.	The PRO, Kala Rawali, was not present when the order came to stop counting.

74.	Prior to telling them to stop counting, Boki Raga was in the corner of the counting centre, with Tiene Openakale and the Electoral Commission’s IT man and Provincial Administrator, Michael Wandil and some lady teachers. Mr Raga was supervising the counting at that time but did not come to where the officials were physically counting.

75.	When he came back to the counting centre the next day, Monday 6 August, Mr Rawali was present.

76.	At about 11.00 am the Defence Force and Police Force personnel brought in six ballot boxes which they (the counting officials) were told were disputed boxes. They were told that they had to count the ballot papers in the boxes. But when they cut open the boxes they discovered that three of them contained ballot papers for Open electorates. Only three contained ballot papers for the Provincial electorate, which, Mr Rawali told them, were from Keltiga, Palimb and Tega polling places.

77.	They put the Open ballot boxes to one side. Then they counted the ballot papers from the three Provincial boxes by placing them in the trays for each of the 26 candidates. They recorded the number that each candidate got and gave the numbers to the IT people.

78.	After that, another six ballot boxes were brought in and they were told that they had to count them too. These boxes had names written on them: two for Mr Wingti; two for Mr Olga; and two for exhausted votes. The boxes were put on the respective tables and when they were emptied some of the ballot papers were in bundles and some were loose. They discovered that there were some bundles of 1,000s, whereas there were none the previous day. The officials remarked that ‘some miracle’ must have happened because the previous day’s ballot papers were bundled differently. He noticed that there seemed to be more bundles on Mr Olga’s table than there was the day before. He concluded that someone must have bundled them overnight.

79.	Mr Wingti’s scrutineer, Tom Korowa, said that what he had seen the previous day was different to what he was now seeing. He suggested that all the papers be unbundled and counted again. A Defence Force officer told him ‘shut up or you will fly out of the window’. Mr Korowa said no more. Mr Rawali was present and just asked them to continue counting. Mr Openakale was not present. At that time there were plenty of Defence Force and Police Force personnel present. They were getting impatient and wanted to go home.

80.	The counting was finished around 6.30 pm and the result was declared at about 7.30 pm.

Tom Korowa

Overview

81.	He was a scrutineer for Mr Wingti throughout the counting period. His evidence related to ground 2: whether errors or omissions or illegal or improper practices were committed at the counting centre.

82.	He was present at the counting centre on the evening of Sunday 5 August when counting was suspended by a court order and on Monday 6 August when the result was declared. His evidence supported the petitioner’s proposition that something suspicious happened in that period that resulted in Mr Olga’s tally being boosted by about 5,000 votes.

Details

83.	On 5 August Boki Raga was in charge of the counting. After the 24th elimination, four tables were set up. One was a sorting table and the others were for ballot papers to be allocated to Wingti; Olga; and exhausted votes. When the court order was announced there were still many ballot papers to be sorted. There were 10 or 11 bundles of 500s on Mr Wingti’s table and only a few on Mr Olga’s table.

84.	He did not see what happened to the ballot papers as the Defence Force and Police Force personnel were fully armed and told the counting officials and scrutineers to move out. They were scared and ran through the door. He tried to protest but was told ‘a court order is a court order’.

85.	On 6 August Kala Rawali was in charge of the counting. Six disputed ballot boxes were brought in for counting but it turned out that only three of them were Provincial boxes.

86.	After they were counted, the Defence Force and Police Force personnel brought in the boxes containing the ballot papers that had been packed away the previous evening. He observed that, compared to what he saw the previous evening, the number of exhausted votes was significantly lower; and the number of votes on Mr Olga’s table was much more than on Mr Wingti’s table. There were five bundles of 1,000s on Mr Olga’s table and none on Mr Wingti’s table.

87.	He objected and asked that all ballot papers be re-checked but was told to shut up by Defence Force and Police Force personnel.

ORAL EVIDENCE BY WITNESSES CALLED BY THE RESPONDENTS

88.	The respondents called six witnesses. The first five were called by the first and second respondents and the last by the third respondent.

Steven Korowa

Overview

89.	He was the returning officer for the Dei Open electorate. His evidence related to the first issue, concerning the Mala 2 ballot boxes.

90.	He gave evidence about his decision not to count the two Open ballot boxes. It supported the respondents’ proposition that polling was conducted illegally and that the PRO, Mr Rawali, made the correct decision not to count the votes in the two Provincial ballot boxes from Mala 2.

Details

91.	Polling was due to take place on Friday 6 July but he did not receive the ballot boxes and papers and other materials until 5.30 pm on Thursday 5 July. He was the last returning officer in the Province to receive his materials. He took the materials, with a police escort, to Muglamp District Office but there was no lighting. He could not do the necessary pre-checking until the next day.

92.	Most of Friday the 6th was taken up with doing pre-checks. They started at 7.00 am and finished at 4.00 pm. He then dispatched the polling teams. He stood in front of the crowd that had assembled and announced that it was too late to start, so polling would have to be the next day, the 7th. He dispatched two teams to Mala 1 and two to Mala 2.

93.	The presiding officers for Mala 2 (the ballot boxes which were not counted) were:

•	William Reia (team 25); and
•	Wama Wapra (team 26).

94.	Soon after polling was finished he received complaints from Provincial and Open candidates and scrutineers about polling at Mala 1 and Mala 2. Two polling officials also complained about polling at Mala 2: Timothy Mel and James Meteng said polling was conducted at night and they were physically threatened.

95.	He noticed that the memo books William Reia and Wama Wapra furnished had them starting polling at 2.30 pm and 3.30 pm respectively, which was impossible as he had not dispatched them from Muglamp until 4.30 pm.

96.	The ballot boxes for Mala 1 and Mala 2 were brought to the counting centre on 20 July. A number of scrutineers objected so he set aside those boxes and sought advice from Electoral Commission legal adviser Ray William. They interviewed the presiding officers and other polling officials on Saturday 21 July.

97.	On Monday 23 July, after considering all the available information, he decided to:

•	count the ballot boxes from Mala 1; but
•	reject the ballot boxes from Mala 2.

98.	He wrote a letter addressed to all the Dei Open candidates, dated 23 July, explaining his decision.

99.	As for Mala 1 he was satisfied that polling started on Friday evening but had finished by 6.00 pm when they had collected only 11 votes. There was no evidence of night voting and it was apparent that the bulk of the polling had been on Saturday 7 July.

100.	As for Mala 2, there was direct evidence from two polling officials that other officials had taken out the ballot papers at night and marked them. It was not possible for polling to have been completed within the time given by the presiding officers. There was no proper polling.

101.	In cross-examination Mr Korowa elaborated on the reasons for his decision.

102.	As for Mala 1, he interviewed all ten officials (five from each polling team) and they all told him the same thing: though they started polling on Friday and it was against his instructions, they only collected 11 votes as it was too dark to continue; then they used a padlock to lock the outer lid of the ballot box.

103.	But, for Mala 2, the presiding officers told him that they had no padlocks so the ballot boxes were left open. The polling officials were telling him different things. Though the presiding officers maintained that polling took place on Saturday the 7th, two polling officials (James Meteng, team 25, and Timothy Mel, team 26) told him that the presiding officers were in a house all night, with a generator running, signing ballot papers together. They also said that they were under physical threat.

104.	He denied that he was taking sides with the successful Dei Open candidate, Puri Ruing, with whom he was connected through marital and clan ties.

105.	In accordance with standard procedures, the ballot boxes for both the Open and Provincial electorates were brought in together to the Open counting centre. The presiding officers are asked to verify each ballot box for which they are responsible; each presiding officer being responsible for both an Open and a Provincial box.

106.	In the present case, once he rejected the Open boxes for Mala 2, the Provincial boxes suffered the same fate. He gave a full briefing to the Provincial returning officer on the Mala 2 boxes; and that is why the Provincial boxes were rejected.

Paul Goimba

Overview

107.	He was the returning officer for the Hagen Open electorate. His evidence related to the second and third issues: whether errors or omissions were committed by not counting the Keltiga box and the two Korkum boxes.

108.	His evidence was that polling at both places was conducted illegally. It supported the respondents’ proposition that polling was conducted illegally and that the PRO, Mr Rawali, made the correct decision not to count the votes in the three Provincial ballot boxes.

Details

109.	As for Keltiga, the presiding officers were:

•	Raphael Agua (team 29); and
•	David Kolima (team 30).

110.	He dispatched them between 7.00 am and 9.00 am on Friday 6 July, with two ballot boxes each (one Open and one Provincial), a total of four ballot boxes. He told them that each team should have its own polling booth, as that was a legal requirement. He told them to initial each ballot paper on the back, for their respective teams.

111.	When the Open ballot boxes were put onto the sorting table at the Open counting centre, counting officials noted that each ballot paper had four different signatures on it. He sought an explanation from the presiding officers and they said that they used one table for polling and each ballot paper had been signed by the two presiding officers and two assistant presiding officers. That was not the requirement and he could not believe what the presiding officers were saying. So he rejected all the ballot papers from Keltiga. Consequently the Provincial ballot boxes were taken back to the container at the police station. He considers that the Provincial ballot papers would also have four signatures on them. It transpired that one of the Keltiga Provincial boxes was counted but he was not aware of that before it was pointed out to him in cross-examination.

112.	As for Korkum, aka Hagen Tee, there were also two polling teams (Nos 103 and 104) dispatched on the morning of Friday 6 July. Polling was half way through when supporters of a Hagen Open candidate disrupted the polling and confiscated Open and Provincial ballot papers and ballot boxes, forcing polling officials and voters to flee the scene.

113.	The next day, Saturday 7 July, he sent the two teams back to Korkum minus their presiding officers who refused to go because of Friday’s incident. In their place he sent the two presiding officers from Keltiga, Mr Agua and Mr Kolima. He sent his two assistant returning officers to check how things were going. They reported back to him, orally, that when they went there, there were a number of locals who were not eligible voters lining up to vote, so they closed the polling with the assistance of Defence Force and Police Force personnel. They reported to him that there was no proper voting and he acted on that information and decided not to count any votes from Korkum. He does not know how many votes were cast as he did not receive any returns. The ballot boxes were not taken to the counting centre. The two assistant returning officers brought the ballot boxes to him after they opened the inner lids and packed the polling materials inside. The ballot boxes were locked and sticky tape was wrapped around them.

114.	In cross-examination Mr Goimba acknowledged that in carrying out his functions as a returning officer he was subject to directions from the Electoral Commissioner. At one stage the Commissioner issued a direction for him to count the Keltiga boxes but he did not receive a copy of the direction.

Boki Raga

Overview

115.	He is the Electoral Commission’s Director of Policy. He was based in Mt Hagen for the general election, overseeing polling and scrutiny for all electorates in the Enga and Western Highlands Provinces. His evidence related to ground 2: whether errors or omissions or illegal or improper practices were committed at the counting centre.

116.	He was at the counting centre on the evening of Sunday 5 August when the court order arrived. He left on the morning of 6 August before declaration of the result.
Details

117.	He has been an officer of the Commission for almost 26 years.

118.	It was about 6.30 pm on Sunday the 5th when he received a faxed copy of a National Court order to suspend the counting. He, as the most senior Electoral Commission officer present, made an immediate announcement that counting was suspended.

119.	At that stage, the 24th elimination – Wai Rapa – had been effected and the counting officials were distributing his preference votes to the remaining candidates, Mr Wingti and Mr Olga. Four tables had been set up:

•	the sorting table;
•	Mr Wingti’s table;
•	Mr Olga’s table; and
•	the table for exhausted votes.

120.	Nothing was left on the sorting table. Ballot papers on the other three tables had been bundled into 500s, ready to be counted. But they were not counted. No record was kept of how many bundles of 500s there were on each table as under the court order counting was suspended. He would have been in contempt if he had asked them to be counted.

121.	The counting officials packed the ballot papers into the boxes, which were locked by Mr Openakale and some counting officials. The boxes were then taken back to the container at the police station.

122.	He (Mr Raga) then left the counting centre and went to his hotel; then travelled back to Port Moresby the next morning.

123.	In cross-examination Mr Raga was asked about apparent discrepancies between two sets of tally sheets for the Provincial electorate. Form 66A gives a progressive tally of each candidate’s primary (first preference) votes. Form 66B is the form used to show the elimination of each candidate and how their preference votes are excluded. Form 66A shows that after 639 counts:

•	Mr Wingti had 89,350 votes; and
•	Mr Olga had 69,574 votes.

124.	However, Form 66B shows that prior to the first elimination (which was of candidate Robert Enga):

•	Mr Wingti had 89,666 votes; and
•	Mr Olga had 69,275 votes.

125.	Mr Manase, for Mr Wingti, suggested that the closing figures in Form 66A should be the same as the opening figures in Form 66B. Mr Raga acknowledged that that might be the case but that there was always an element of human error under the LPV system; which had become apparent when the Electoral Commission conducted a number of by-elections after the 2002 general election (the last under the first-past-the-post system). He suggested that the Electoral Commission’s ‘IT man’ would be in the best position to explain the apparent discrepancies.

126.	Mr Raga did not name the ‘IT man’ but presumably he was referring to Rogana Mala, the respondents’ fifth witness, whose evidence is summarised below.

Kala Rawali

Overview

127.	He was the Provincial returning officer. His evidence was relevant to all issues: whether errors or omissions were committed by not counting the five contentious ballot boxes and whether errors or omissions or illegal or improper practices were committed at the counting centre.

128.	His evidence was that he relied on the advice of the returning officers for Dei Open and Hagen Open when deciding to reject the five ballot boxes. As to the counting centre, he testified that nothing illegal or improper happened.

Details

129.	He is the Elections Manager for Western Highlands Province and has been an officer of the Electoral Commission for 32 years. He was in charge of the counting, from 15 July to 6 August except for the period from 1 to 4 August when he was sick and replaced by Tiene Openakale.

130.	Both Open and Provincial ballot boxes were transported together from the containers at the police station to the counting centre each day, eg if five Open ballot boxes were transported, five Provincial ballot boxes would also be taken. The presiding officer for each polling team would first present their Open ballot box at the counting centre for their Open electorate; and if it was cleared their Provincial ballot box would be taken to the Provincial counting centre.

131.	If there was a dispute about an Open ballot box, that ballot box would be set aside, the Open returning officer would report the matter to him (Mr Rawali) and the Provincial ballot box would suffer the same fate; and in such cases the Provincial ballot box would not be brought to the Provincial counting centre.

132.	As for the Mala 2 ballot boxes, the returning officer for Dei Open, Steven Korowa, gave him a report on why the Open ballot boxes were rejected: polling was done in the night and there was a possibility of ballot papers being tampered with. He also considered the various written complaints that Mr Korowa received. So he decided to reject the two Provincial ballot boxes for the same reasons Mr Korowa rejected the Open boxes.

133.	As for the Keltiga ballot boxes, the Hagen Open returning officer, Paul Goimba, told him why they were rejected. He sought advice from the Electoral Commissioner on 26 July, who faxed back a message the same day, concurring with Mr Goimba’s decision. Polling was conducted at the same place so whatever was done to the Open ballot boxes had to be done to the Provincial ballot boxes. So he made the same decision: to reject the two Keltiga Provincial ballot boxes. However, as he explained in cross-examination, Mr Rawali eventually counted one of the Keltiga boxes – see below.

134.	As for the Korkum ballot boxes, he again acted on a report by Mr Goimba who rejected the Open boxes as there was no proper polling at Korkum, either on 6 or 7 July. The Provincial ballot boxes were rejected for the same reasons.

135.	On the evening of Sunday 5 August, he was at the counting centre when the court order came in and Mr Raga announced that counting was suspended. At that point, they were on the 24th elimination: Wai Rapa, who had received 78,638 votes. Four tables had been set up:

•	the sorting table;
•	Mr Wingti’s table;
•	Mr Olga’s table; and
•	the table for exhausted votes.

136.	When counting was suspended, the sorting of Mr Rapa’s ballot papers had been completed. Ballot papers on the other three tables had been bundled into 500s, ready to be tallied up. The table with the greatest number of ballot papers on it was the table for exhausted votes; followed by Mr Olga’s table, then Mr Wingti’s table. He instructed counting officials, including Timothy Roika and Roslyn David, to pack the ballot papers into separate boxes, which were padlocked and taken to the police station under heavy police escort.

137.	Defence Force and Police Force personnel did not pack up the ballot papers. Nor did they chase counting officials and scrutineers out of the counting centre, as alleged.

138.	Counting resumed on Monday 6 August at 11.00 am after the court order was lifted. He was advised to count six Provincial ballot boxes from the Hagen Open electorate, which had previously been rejected. So he asked the counting officials to go and bring those ballot boxes to the counting centre, in addition to the boxes containing the bundled-up ballot papers from the previous day’s counting.

139.	However, when six ballot boxes were brought to the counting centre and opened, he discovered that three contained Open ballot papers; so it transpired that only three Provincial ballot boxes were counted. One of them was from Keltiga (No 0385), which meant that the other Keltiga box (No 0386) remained uncounted.

140.	The counting officials then tallied the bundled-up ballot papers from the previous day, resulting in:

•	Mr Wingti getting 10,202 votes;
•	Mr Olga getting 23,876 votes; and
•	34,078 exhausted votes.

141.	By then Mr Olga was above the 50% + 1 absolute majority mark, so he declared him as duly elected. (Since the hearing of Mr Rawali’s evidence and the hearing of submissions, I have come to realise that the figure of 34,078 exhausted votes is an error. The correct figure on Form 66B (exhibit 2B), page 3, is 44,635. The figure 34,078 is the total number of distributed votes, ie 10,202 + 23,876.)

142.	In cross-examination Mr Rawali was asked about Keltiga ballot box No 0385. The presiding officer’s return showed that 1,205 votes were cast, but the Form 66A tally sheet only recorded 900 votes. Mr Rawali replied that 900 was the physical count. They could not count ‘imaginary votes’ and the presiding officer did not turn up to explain the discrepancy.

143.	Asked why the other Keltiga ballot box (No 0386) was not counted, Mr Rawali conceded that he had been directed to count it. But, when he asked the counting officials to bring it in for counting, they could not find it. The Hagen Open returning officer, Mr Goimba, was not around as he had already declared his result.

144.	Mr Rawali was quizzed over the last sheet on Form 66A, which gives the results of counts 632 to 639. Most of these counts simply indicate from which electorate the ballot papers come from, rather than, as is the case with earlier counts, giving the name of the polling place, team number, ballot box number and outer and inner seal numbers. For example, count No 632, from the Dei Open electorate, gives the name of the polling place as "discrepancy"; and for team number, it has "from electorate"; and for ballot box and seal numbers, "NIL". Twenty allowable ballot papers were tallied under that count. Similar details were also lacking for counts from the other six Open electorates in the Province: Tambul-Nebilyer (105 votes); Anglimp-South Wahgi (223 votes); Mul-Baiyer (177 votes); Hagen (1,418 votes); North Wahgi (152 votes); and Jimi Open (22 votes).

145.	Mr Rawali’s explanation was that they were ‘mixed up’ ballot papers: Provincial ballot papers found in Open ballot boxes. They were valid votes and it would have been wrong to reject them.

146.	Mr Rawali was grilled over the discrepancies between the final figures in Form 66A and the opening figures in Form 66B. Mr Manase, for Mr Wingti, put the same sorts of questions on this issue that had been put to Mr Openakale (petitioner’s witness No 4) and Mr Raga (respondents’ witness No 3). Form 66A is the tally sheet used at the counting centre, showing distribution of first preference votes received by each of the 26 candidates after each of the 639 counts. It gives a progressive tally of votes and concludes with a total of first preference votes for each candidate. The total is then posted to Form 66B, which is the tally sheet showing the distribution of preference votes, the number of exhausted votes and the order of each exclusion or elimination.

147.	The final figures on Form 66A show:

•	Mr Olga had 69,574 votes; and
•	Mr Wingti had 89,350 votes.

148.	The opening figures posted to Form 66B show:

•	Mr Olga had 69,275 votes; and
•	Mr Wingti had 89,666 votes.

149.	The figures for the other 24 candidates also did not match. Mr Manase put it to Mr Rawali that these discrepancies should not have existed and that the result should not have been declared without a recount.

150.	Mr Rawali replied that, in fact, there had been a recount. After the primary votes were counted for the first time, the progressive tallies were posted to Form 66A. Then there was a quality check done. Each candidate’s ballot boxes and ballot papers were checked again and the figures posted to Form 66B. Inevitably, human error comes into play. There are bound to be discrepancies. This has been found to be the case with all the elections conducted under the new voting system, Mr Rawali said.

Rogana Mala

Overview

151.	He is a Systems Analyst in the IT Division of the Electoral Commission. He was present at the counting centre throughout the counting period, in charge of the electronic tally sheet. His evidence related to ground 2: whether errors or omissions or illegal or improper practices were committed at the counting centre.

Details

152.	He has been an officer of the Electoral Commission for seven years.

153.	He was at the counting centre on 5 August when the court order was received. When Wai Rapa was excluded, his ballot papers were out on the sorting table and then allocated to the tables for Mr Wingti, Mr Olga or exhausted votes. There were no ballot papers left on the sorting table when the court order came in. Ballot papers on the other three tables had been bundled into 500s, ready to be tallied up. The table with the greatest number of ballot papers was the table for exhausted votes; followed by Mr Olga’s table, then Mr Wingti’s table.

154.	He did not see five bundles of 1,000 ballot papers on Mr Olga’s table, as alleged in the petition.

155.	When counting was suspended, Mr Rawali instructed counting officials Roslyn David and Timothy Roika to lock and seal the boxes. He did not see any Defence Force or Police Force personnel packing up any ballot papers or chasing counting officials or scrutineers out of the counting centre.

156.	He was present at around 11.30 am on 6 August when the court order was lifted and counting resumed. He noted that the ballot boxes in which the bundled-up ballot papers had been packed had their locks and tapes intact. Before those ballot papers were counted, counting officials dealt with six ballot boxes containing ballot papers that had not been previously counted. It transpired that only three of those boxes contained Provincial ballot papers; so they were counted, then the bundled-up ballot papers from the previous evening were counted, which led to declaration of the poll later that day.

157.	In cross-examination Mr Mala was asked how the three Provincial ballot boxes counted on 6 August were dealt with. He said that all the ballot boxes were from Hagen Open electorate. The polling places were:

•	Palimb: count No 640: 1,010 allowable ballot papers;
•	Tega: count No 641: 1,394 allowable ballot papers; and
•	Keltiga: count No 642: 900 ballot papers.

158.	All the votes from those counts were allocated to Mr Wingti, Mr Olga or exhausted votes, in the normal way; and then combined with the figures derived from the quality check, which had been conducted earlier and taken two days to complete.

159.	Mr Manase asked Mr Mala the same sorts of questions he asked Mr Rawali about the apparent discrepancies between the figures on the last page of Form 66A and the opening figures in Form 66B. Mr Mala’s response was the same as Mr Rawali’s: the opening figures in Form 66B are the result of a recount, which is called the quality check. Electronic counting is not used and an element of human error is unavoidable.

Timothy Mel

Overview

160.	He was a polling official in team 26, for the Mala 2 polling place in the Dei Open electorate. His evidence related to the first issue, concerning the Mala 2 ballot boxes.

161.	He was one of only two witnesses who gave direct evidence of what happened at Mala 2. The other witness was William Reia (petitioner’s witness No 2) whose evidence was opposite to Mr Mel’s evidence. Mr Mel said that there was no proper polling. His evidence supported the respondents’ proposition that the PRO, Mr Rawali, made the correct decision not to count the votes in the two Provincial ballot boxes.

Details

162.	The presiding officer for his polling team was Wama Wapra. They picked up the polling materials from Muglamp between 4.00 pm and 5.30 pm on Friday 6 July. The Dei Open returning officer instructed them to begin voting early the next day. Polling was supposed to have started that day but they had done pre-checking of the ballot papers in the morning and that had delayed things until the afternoon.

163.	They arrived at Mala at about 6.00 to 6.30 pm. It was getting dark and it was raining so they took the ballot boxes to a village elder’s house; then he and other polling officials and the police were taken to a nearby house, to stay in. They were given dinner.

164.	At about 9.00 pm Mr Wapra and the presiding officer for team 25, William Reia, informed him that they wanted to start polling. They asked him for his opinion but did so in a way that made him feel threatened and intimidated. Both presiding officers were local men. In fact, of the ten people in the two polling teams (five in each team) only he and James Meteng, a polling official in team 25, were not from the local area.

165.	He thought it was not right and initially objected and tried to ask the police for their opinion. But the police said it was up to the presiding officers. So he told them it was up to them. A polling official called "William" – not William Reia – forced him and James Meteng to sleep. But before he fell asleep he observed the Mala 2 ballot boxes were being opened. The ballot papers were marked by the presiding officers, polling officials and two community leaders.

166.	Somebody woke him up at 2.00 am and he was told to go and sleep in another house. He noticed that the ballot papers were still being marked. The generator that had previously been used to supply power for lighting was switched off, but marking of ballot papers was continuing under lamp light. He saw no voters present. He went to sleep in the other house, as he was told to, while James Meteng remained asleep in the first house.

167.	Then he woke up around 5.30 am or 6.00 am and noticed that they were still marking ballot papers in the first house, the ‘polling house’. Two men came and enquired about voting for Provincial candidates but they were told to shut up as the votes had been shared amongst the Provincial candidates. They were not concerned about the Open ballot papers as there was a candidate from that area, Roy Pena Roltinga, who, it appears, the Open ballot papers were being marked for.

168.	By that time it was about 7.00 am. A few people came to vote but were told that polling had been done at night. There were no complaints. He had nothing to do so just hung around until later that day when the transport arrived to take the ballot boxes to Mt Hagen.

169.	He reported what had happened, to the Dei Open returning officer, Steven Korowa, at the first available opportunity, that night.

170.	In cross-examination it was put to Mr Mel that he was giving false evidence to support his clansman, Puri Ruing, the successful candidate for Dei Open. Mr Mel said that it is true that Mr Ruing belongs to his clan, Rolgka, but they are in different sub-clans and in different council areas; and anyway he is just giving evidence of what he saw with his eyes.

DOCUMENTARY EVIDENCE

171.	The following exhibits were admitted into evidence.

No 	Description	
1	•	Writ for Western Highlands Provincial Electorate issued on 5 May 2007 and returned on 6 August 2007.
	
2A
2B	•	Form 66A – Progressive tally sheets for primary votes.
•	Form 66B – Progressive tally sheets for elimination.
	
3A

3B	•	Presiding Officer’s return of voters and ballot-papers for Mala No 2, Dei Open (Ballot box No 0315).
•	Presiding Officer’s return of voters and ballot-papers for Mala No 2, Dei Open (Ballot box No 0316).
	
4A

4B	•	Presiding Officer’s return of voters and ballot-papers for Keltiga, Hagen Open (Ballot box No 0385).
•	Presiding Officer’s return of voters and ballot-papers for Keltiga, Hagen Open (Ballot box No 0386).
	
5	•	Letter from Electoral Commission to the Hagen Returning Officer dated 27 July 2007 re direction on declarations for Mt Hagen Open Electorate.
	
6	•	Letter from Electoral Commission to the Returning Officer for Mt Hagen Electorate, Paul Goimba dated 27 July 2007 re appointment for Mt Hagen Open Electorate.
	
7A
7B

7C

7D
7E	•	OS 437 of 2007 filed on 5 August 2007 to suspend counting.
•	Notice of Motion under OS 437 of 2007 filed on 5 August 2007 to suspend 
counting.
•	Affidavit of Paias Wingti under OS 437 of 2007 sworn and filed on 5 
August 2007.
•	Undertaking as to damages under OS 437 of 2007 filed on 5 August 2007.
•	Court Order under OS 437 of 2007 ordered and filed on 5 August 2007.
	
8	•	Letter from Nonggorr & Associates Lawyers to Mawa Lawyers dated 6 August 2007 re the Provincial Returning Officer’s advice in relation to the proceedings OS 437 of 2007.
	
9	•	Instrument of appointment of acting Provincial Returning Officer for Western Highlands Province, Tiene Openakale dated 2 August 2007.
	
10	•	2007 LPV Scrutiny Manual.
	
11	•	Letter from Ben Mark to the Electoral Manager dated 20 July 2007 re Assistant Returning Officer’s report of polling at Mala 2, Kotna LLG, Dei Open Electorate.
	
12	•	Affidavit of Ben Mark sworn on 24 October 2007 and filed on 26 October 2007 (Petitioner’s 1st witness).
	
13	•	Letter from Steven Korowa to candidates of Dei Open Electorate dated 23 July 2007.
	
14	•	Presiding Officers memo book (William Reia) re polling at Mala No 2 on 6 July 2007.
	
15	•	Presiding Officers memo book (Sanege Wapra) re polling at Mala No 2 on 6 & 7 July 2007.
	
16	•	Used Electoral Roll for Ward 14 Mala No 2, Kotna Rural LLG, Dei Open, Western Highlands.
	
17	•	Affidavit of William Reia sworn on 24 October 2007 and filed on 26 October 2007 (Petitioner’s 2nd witness).
	
18	•	Affidavit of Raphael Agua sworn on 24 October 2007 and filed on 26 October 2007 (Petitioner’s 3rd witness).
	
19	•	Affidavit of Michael Wakene sworn on 18 October 2007 and filed on 26 October 2007 (Petitioner’s 4th witness).
	
20	•	Affidavit of Tom Korowa sworn on 25 October 2007 and filed on 26 October 2007 (Petitioner’s 5th witness).
	
21	•	Affidavit of Steven Korowa sworn on 8 November 2007 and filed on 9 November 2007 (First & Second Respondents’ 1st witness).
	
22	•	Affidavit of Paul Goimba sworn on 15 November 2007 and filed on 16 November 2007 (First & Second Respondents’ 2nd witness).
	
23	•	Affidavit of Boki Raga sworn on 9 November 2007 and filed on 12 November 2007 (First & Second Respondents’ 4th witness).
	
24	•	Affidavit of Kala Rawali sworn on 8 November 2007 and filed on 9 November 2007 (First & Second Respondents’ 5th witness).
	
25	•	Affidavit of Rogana Mala sworn on 15 November 2007 and filed on 16 November 2007 (First & Second Respondents’ 6th witness).
	
26	•	Affidavit of Timothy Mel sworn on 8 November 2007 and filed on 9 November 2007 (Third Respondent’s only witness).

FIRST ISSUE: WERE ERRORS OR OMISSIONS MADE BY REJECTING THE MALA 2 BOXES?

172.	The petitioner argues that the Provincial returning officer, Mr Rawali, erred by deciding not to count the two Mala 2 Provincial ballot boxes, in the following ways:

•	he did not make an independent decision not to count the boxes;
•	proper procedures for ruling on objections to ballot boxes were not followed; and
•	there were no good reasons for not counting the boxes.

Did the Provincial returning officer make an independent decision?

173.	Mr Rawali said the scrutiny procedure was that the presiding officer for each polling team would first present their Open ballot boxes at the counting centre for their Open electorate; and if it was cleared their Provincial ballot boxes would be taken to the Provincial counting centre. If there was a dispute about an Open ballot box, that ballot box would be set aside, the Open returning officer would report the matter to him (Mr Rawali) and the Provincial ballot box would suffer the same fate; and in such cases the Provincial ballot box would not be brought to the Provincial counting centre.

174.	Mr Steven Korowa gave him a report on why he had rejected the Open ballot boxes for Mala 2: polling was done in the night and there was a possibility of ballot papers being tampered with. He also considered the various written complaints that Mr Korowa received. So he decided to reject the two Provincial ballot boxes for the same reasons Mr Korowa rejected the Open boxes.

175.	Mr Korowa’s evidence was consistent with Mr Rawali’s. The ballot boxes for both the Open and Provincial electorates were brought in to the Open counting centre. Once he rejected the Open boxes for Mala 2, the Provincial boxes suffered the same fate. He gave a full briefing to the Provincial returning officer on the Mala 2 boxes; and that is why the Provincial boxes were rejected.

176.	It is clear from that evidence that Mr Rawali relied on and acted entirely in accordance with the decision of Mr Korowa, which Mr Korowa conveyed to him orally. Mr Rawali’s decision was not documented, unlike Mr Korowa’s, which was explained in a letter to all Dei Open candidates dated 23 July. No Provincial candidates complained to Mr Rawali about illegal voting at Mala 2. Mr Rawali did not interview either of the presiding officers for Mala 2 and did not conduct any of his own inquiries into what happened at Mala 2. Mr Rawali did not make an independent decision to reject the ballot boxes. This was contrary to the rule against ‘acting under dictation’, as explained in De Smith’s Judicial Review of Administrative Action Stevens & Sons Ltd, 4th edition 1980, page 309:

An authority entrusted with a discretion must not, in the purported exercise of its discretion, act under the dictation of another body or person. … It is enough to show that a decision which ought to have been based on the exercise of independent judgment was dictated by those not entrusted with the power to decide, although it remains a question of fact whether the repository of discretion abdicated it in the face of external pressure. And it is immaterial that the external authority has not sought to impose its policy.

177.	In S D Hotop’s Principles of Australian Administrative Law, 6th edition, Law Book Company 1985, the principle was explained in these terms at pp 238-239:

A public authority, entrusted with a statutory discretionary power, must generally exercise its discretion independently and not under the dictation or at the behest of some other body. …It is, however, not necessary for an external body to exert pressure or seek to impose its own view. It is not the conduct of the external body that is decisive, but rather the state of mind of the repository of the discretion. It will be sufficient if that authority automatically defers to the view of an external body, or feels compelled because of the stated, or even, assumed, view of an external body, or some other circumstance, to decide in a particular way (Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89, at 95).

178.	Mr Rawali had a discretion to exercise but failed to exercise it. Instead he rubber-stamped the exercise of discretion by Mr Korowa. This was contrary to the Organic Law, which provides that Mr Rawali, as the returning officer for the Provincial electorate, was required to make his own decisions, subject only to directions from the Electoral Commission, regarding the scrutiny and result of the election for his electorate. As Gavara-Nanu J indicated in Jim Nomane v David Anggo and Others (2005) N28:

The scheme of Sections 18 and 19 [of the Organic Law] is that the returning officer must in the exercise of … delegated power decide whether a disputed ballot box can be counted or not. Such decision can only be made by the returning officer based on the merits of the case before him.

179.	The Organic Law provides that it is the returning officer, and no other person, who:

•	is charged with the duty of giving effect to the Organic Law for his electorate, subject only to directions of the Electoral Commission (Section 19(1));
•	conducts the scrutiny at the counting centre (Section 149);
•	is obliged (subject to his power to refuse to admit a ballot box to scrutiny), to open all ballot boxes and count the votes on all un-rejected ballot papers (Section 154(2));
•	may refuse to admit a ballot box to scrutiny where he is of the opinion that the ballot papers were not lawfully cast or the ballot box was tampered with and the integrity of the ballot papers compromised (Section 153A);
•	determines the result of an election, by scrutiny, in the manner prescribed by Section 168; and
•	declares, subject to directions from the Electoral Commission, the result of the election.

180	In this case Mr Rawali abdicated responsibility for making a considered decision whether to admit the Mala 2 ballot boxes to scrutiny to Mr Steven Korowa. This was an error of law.

Were proper procedures followed?

181	Mr Manase submitted that as well as failing to make an independent decision, the procedures prescribed by the Regulation and the Organic Law for dealing with disputed ballot boxes were not followed.

182	Section 90 (objection to admission of ballot box to scrutiny) of the Regulation states:

(1)	A scrutineer who wishes to object to a ballot-box being admitted to scrutiny shall lodge the objection in writing with their reasons to the Returning Officer or Assistant Returning Officer.

(2)	An objection under Subsection (1) is to be made by a scrutineer who was present at the polling place where the ballot-box was used for polling.

(3)	A candidate who did not have a scrutineer at a polling place where a ballot-box is used for polling and who wishes to object to the ballot-box from being admitted to scrutiny shall lodge the objection in writing with the Returning Officer or Assistant Returning Officer.

(4)	A scrutineer or candidate who lodges an objection under Subsection (1) or (3) shall state in a statutory declaration the facts supporting the objection.

(5)	An objection under this section shall be made within three days of the end of polling or within such further period as the Returning Officer or Assistant Returning Officer extends.

(6)	A Returning Officer or Assistant Returning Officer, upon receipt of an objection under Subsection (1) or (3), shall register the objection and may require the presiding officer, other polling officials or such other person as he considers necessary to comment on or respond to the objection in writing.

(7)	The Returning Officer or Assistant Returning Officer is to receive a ballot-box the subject of an objection under this section at the scrutiny centre and is to make a decision on the objection as to whether or not the ballot-box will be admitted to scrutiny.

(8)	A decision of a Returning Officer or Assistant Returning Officer on an objected ballot-box made under Subsection (7) shall not be challenged other than by way of petition.

(9)	The Electoral Commissioner may require a Returning Officer or Assistant Returning Officer not to make a decision on an objection under this section, until the Electoral Commissioner or other person acting under the Electoral Commissioner’s authority for the purpose reviews an objection.

(10)	Where an objection is reviewed under Subsection (9), the Electoral Commissioner may direct a Returning Officer or Assistant Returning Officer to accept or not to accept a ballot-box into scrutiny and a Returning Officer or Assistant Returning Officer is to give effect to such direction.

183	Section 153A (excluding ballot box from scrutiny) states:

(1)	Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:—

(a)	the ballot-papers in it were not lawfully casted [sic]; or

(b)	the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised [sic].

(2)	Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3)	A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4)	A decision of a Returning Officer under this section may not be challenged other than by way of petition.

184.	It is clear that the procedures in the Regulation were not followed, in that:

•	no Provincial electorate scrutineer or candidate objected in writing to the Provincial returning officer or ARO, as required by Section 90(1) of the Regulation;

•	the persons who did object in writing to the counting of the Mala 2 boxes lodged their objections with the Open returning officer;

•	none of the objectors stated the facts supporting their objection in a statutory declaration, as required by Section 90(4) of the Regulation; and

•	though some of the six written objections that went to the Open returning officer, were lodged within three days after the end of polling (as required by Section 90(6) of the Regulation), none of them was registered, as required by Section 90(6) of the Regulation.

185.	The question I now need to address is whether those procedures are mandatory. Or are they only directory guidelines, non-compliance with which is inconsequential? Is substantial compliance with Section 90 of the Regulation sufficient?

186.	Those interpretations are available in view of the wording of Section 153A of the Organic Law, which provides that where an objection is made, the returning officer "may" require the objection, reasons for it and responses to it to be reduced into writing and "may" require the presiding officer and other polling officers to comment, before making a decision. The wording of Section 153A implies that the returning officer does not have to insist on strict compliance with Section 90.

187.	The Organic Law is by virtue of Sections 10 and 11 of the Constitution a superior law and governs the interpretation of the Regulation. I consider that, to the extent to which it makes written objections, supported by statutory declarations, mandatory, Section 90 is inconsistent with Section 153A, and therefore must be read down and regarded as a directory provision. Breach of its procedures will therefore not necessarily amount to an error of law.

188.	By the same token, I consider that Section 153A requires a returning officer who receives an objection to a ballot box to put in place some discrete procedure that ensures that the objection is recorded and determined in an orderly and systematic fashion. The returning officer’s decision-making must be documented and demonstrate that the returning officer has properly exercised his or her discretion to admit or refuse to admit a ballot box to scrutiny. A proper exercise of discretion will occur when the returning officer’s documentation of the decision making process shows that he or she has formed the opinion for the purposes of Section 153A(1) that:

(a)	the ballot papers in the ballot box were not lawfully cast; and/or
(b)	the ballot box was tampered with and the integrity of the ballot-papers in it was compromised.

189.	They are the only circumstances in which the Organic Law permits the returning officer not to admit a ballot box to scrutiny. So it must be clear to an objective observer – a reasonable person following the election – under what provision of the Organic Law the returning officer has made the decision to reject the ballot box. More importantly, if the returning officer’s decision is challenged by way of a petition (that being the only method of challenge permitted) it must be clear to the National Court (the only authority empowered to hear a petition) under which provision of Section 153A the returning officer made the decision. It must also be clear how and why the required opinion was formed.

190.	The decision to reject a ballot box is a significant decision, which may directly influence the result of an election. It affects many people, especially voters and candidates and the exercise of their rights under Section 50 of the Constitution to vote for and be elected to elective public office at genuine, periodic free elections. It follows that the returning officer must give reasons, in writing, for the decision to reject a ballot box. I consider that this is essential even though Section 153A does not expressly require it.

191.	The duty to give reasons is now regarded in Papua New Guinea as an integral part of the duty of a public official to accord natural justice to those affected by the official’s decisions. It is a fundamental principle of administrative law. If no reasons are given for making a decision, the court will presume that there were no good reasons for making it. The principle of no reasons = no good reasons, developed by Amet CJ in the National Court in Niggints v Tokam [1993] PNGLR 66, has been endorsed by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC747 (Injia DCJ, Sakora J, Sawong J) and in Mision Asiki v Manasupe Zurenuoc, Morobe Provincial Administration and The State (2005) SC797.

192.	The reasons need not be extensive or expressed in great detail but should be clear and concise and show that the returning officer has properly exercised the onerous powers, functions, duties and responsibilities imposed by the Organic Law.

193.	I am conscious of the fact that both Section 153A of the Organic Law and Section 90 of the Regulation are new laws. Section 153A was added by the National and Local-level Government (Amendment) Law 2006. Section 90 forms part of the Electoral Law (National Elections) Regulation 2007. Neither provision has a predecessor and to my knowledge this is the first case in which either provision has been interpreted by a court.

194.	I have considered referring questions about their interpretation to the Supreme Court under Section 18(2) of the Constitution but decided against it as that would prolong these proceedings considerably and unnecessarily.

195.	I have also considered whether I might be reading too much into Section 153A. But I do not think I am. The clear intention of both Section 153A and Section 90 is to require that the decision to reject a ballot box be made in a careful and considered way that is able to withstand review and challenge. That can only be achieved if there is a ‘paper trail’. The chances of a correct and proper decision being made are heightened considerably if the decision maker – the returning officer, subject only to direction by the Electoral Commission – is required to document and give reasons for his or her decision. This is not a radical departure from previous law.

196.	To sum up this issue: if a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must document the objection, record his decision-making process and clearly state what opinion has been formed for the purposes of Section 153A(1) and the reasons for forming that opinion.

197.	In the present case no objections were actually made to Mr Rawali. Nevertheless he should have documented the objections that were made to Mr Korowa. He should then have recorded the steps he took to inquire into the objections and determine whether they were valid. He should have made a clear statement as to the opinion he had formed for the purposes of Section 153A and stated his reasons. However, nothing of that sort happened.

198.	I conclude that proper procedures were not followed and that this was another error of law by the Provincial returning officer.

Were there good reasons for not counting the ballot boxes?

199.	I now consider the question of whether, despite making errors in the manner in which he decided to reject the Mala 2 boxes, the Provincial returning officer made the correct decision. Was there actually night voting and did the presiding officers mark the ballot papers?

200.	Two witnesses gave direct evidence about what happened. The presiding officer for team 25, William Reia, said there was no night voting and no illegal polling. A member of Wama Wapra’s team 26 polling team, Timothy Mel, said the opposite. Who should the court believe?

201.	There were inconsistencies between William Reia’s affidavit and his oral testimony. His demeanour in the witness box gave the impression that he was tailoring his answers to what he thought would be the preferred answers. Despite that, I did not form the impression that he was obviously lying. I accept his evidence about the steps he took to secure the ballot boxes on Friday night.

202.	As for Timothy Mel, there were inconsistencies between his account of what happened in his oral testimony and Mr Korowa’s account of what he was told by Mr Mel. I did not think he was a reliable witness.

203.	Mr Mel said that the ballot papers were marked through Friday night and everything had been finished by 7.00 am on Saturday. A few people came to vote but were told that polling had been done at night. There were no complaints. He had nothing to do so just hung around until later that day when the transport arrived to take the ballot boxes to Mt Hagen.

204.	His explanation for there being no complaints – and this formed part of the respondents’ submission – was that Mala was a stronghold for one of the Dei Open candidates, the runner up, Roy Pena Roltinga, and the presiding officers and the bulk of the polling officials were from Mala and wanted to skew the votes towards Mr Roltinga. As for the Provincial seat, the votes had been shared amongst the candidates; and people who complained about that were told to shut up and they went away.

205.	I find that too difficult to believe. A general election would be a big event in the local community and the chances of a candidate being able to organise the sort of grand conspiracy Mr Mel was attesting to are remote. The voting population at Mala 2 was 1,159, a heck of a lot of citizens to involve in a plan to corrupt the election or a lot of people who would allow their right to vote to be taken away from them without complaint. There were five polling officials on each team, a total of ten, and eight of them were also corrupt according to Mr Mel’s evidence. Police personnel present just went along with what the presiding officers wanted to do. Mr Mel’s evidence suggests that of all the people involved in the election at Mala 2 (the voters, the polling officials and the security personnel) only two were honest: himself and another official, James Meteng. Mr Meteng has not given evidence so the number of honest and responsible people has been reduced to one: Mr Mel. His uncorroborated evidence is therefore difficult to accept.

206.	Two witnesses gave indirect evidence about what happened at Mala 2. Steven Korowa, the Dei Open returning officer, explained how polling was supposed to be on Friday 6 July but he did not dispatch the polling teams from Muglamp until 4.00 pm that day. That was because he had been the last returning officer in the province to receive his election materials, at 5.30 pm on Thursday 5 July. When he got to Muglamp there were no lights in the district office so the pre-checking had to be put off to the next day, and continued into the afternoon. All of that is plausible, especially as Mr Korowa was, generally, an impressive witness. His demeanour was sound. He gave answers that were clear and precise. Against that, however, is that there is no documentary record to corroborate his timing of events. It seems unusual that there is no paper trail showing when the returning officer received the materials for his electorate and when he passed them on to the polling teams. Surely a returning officer must sign a document to attest the time and date that he has received the materials and a presiding officer must sign something to show the time and date that he has got them from the returning officer? Whatever the case, such documents, which you would expect would be in the possession of the Electoral Commission, were not in evidence. The only documents the court has before it are the memo books William Reia and Wama Wapra furnished to Mr Korowa, which record that they started polling at 2.30 pm and 3.30 pm respectively. Mr Korowa’s timing of events is therefore uncorroborated.

207.	Mr Manase, for the petitioner, grilled Mr Korowa on his clan relationship with the elected member for Dei, Puri Ruing, and submitted that it provided the motive for him excluding the Mala 2 boxes; as it was well known that Mala was a Roy Pena Roltinga stronghold. It was also suggested that Mr Korowa conspired in some way with Timothy Mel to prevent the Mala boxes being counted, as Mr Mel was also related to the elected member, Puri Ruing. I was not much impressed by the argument. The relationships are not particularly close ones but even if they were close, it is something that surely would have been well known in the district. Mr Korowa is a local man and it is inevitable that he would have some ties with one or more of the candidates. This was not the first time he had been a returning officer. Mr Mel is also a local. He comes from the Dei District. If there is a question mark over the suitability of a person as returning officer or polling official, the candidates should have addressed that long before polling commenced.

208.	In any event Mr Korowa was a generally impressive witness. Though I consider that he made some procedural errors in his decision to exclude the Mala boxes, I am far from convinced that his decision was motivated by ties with Mr Ruing or any other improper motive.

209.	The procedural errors I am talking about are similar to, but not as serious as, those made by Mr Rawali. Mr Korowa did not record the steps he took to inquire into the objections and determine whether they were valid. He did not make a clear statement of the opinion he had formed for the purposes of Section 153A. His letter to the Dei Open candidates, dated 23 July, suggests that he did not interview or receive evidence from all ten members of the two Mala 2 polling teams. He interviewed only the presiding officers, William Reia and Wama Wapra (who both denied the allegation of night voting) and two ‘poll clerks’ (perhaps Timothy Mel and James Meteng, but he does not say who). He clearly did not believe the presiding officers, who said that ‘polling went well’. He noted that:
There is some agreement that there was some proper polling in the morning hours of the Saturday.

210.	He also considered the amount of time taken to cast votes, which appears to have been the critical factor in his decision. It:

… was said to have ended before 9.00 am. Considering the fact that there were over a thousand voters for that polling area it is not possible to complete polling within the time given.

211.	He did not, however, say who said that polling was completed before 9.00 am. Presumably it was the two un-named poll clerks.

212.	This letter, which is the primary record of the decision to exclude the Mala 2 boxes, discloses that there was an incomplete and unsatisfactory inquiry made by Mr Korowa into the objections he had received. His oral testimony failed to dislodge that conclusion. There was insufficient evidence of the serious allegations being made.

213.	The other witness who gave indirect evidence about events at Mala 2 was the ARO for Dei Open, Ben Mark. He said that the polling teams were dispatched from Muglamp around 2.00 pm on Friday 6 July, which is consistent with William Reia’s evidence. He drove to various polling places on Saturday 7 July and observed that polling was running smoothly. He cast his own vote at Mala 2 on Saturday afternoon. He was involved in the counting for Dei Open. When it became apparent that the returning officer was considering rejecting the Mala 2 boxes he wrote him a letter trying to convince him otherwise, to no avail.

214.	The respondents claimed that Mr Mark was an unreliable witness. He was not independent as he was related to the Dei Open runner-up, Roy Pena Roltinga. Also, Mr Kongri submitted that his evidence about voting on Saturday afternoon cannot be believed as his name does not appear on the return of voters who cast their votes. The last point was made in the course of submissions and was a cheap shot as the allegation was not put to the witness while he was giving evidence and no notice was given to the petitioner that the point would be raised. Mr Manase countered it effectively by pointing out that there was a voter called "Ben Makrui", whose occupation was listed as "agricultural training", which is how Mr Mark described his occupation in evidence. So that was probably Mr Mark. Whatever the case I have disregarded Mr Kongri’s allegation as it was not properly before the court. As for his relationship with the runner-up, Mr Roltinga is Mr Mark’s in-law’s brother; hardly a matter of great concern. As I said in relation to the petitioner’s attempt to denigrate the returning officer Mr Korowa’s integrity, these sorts of things are presumably well known and problems with appointment of electoral officials should be raised before the election, not something kept up in a party’s back pocket to bring out when expedient to do so.

215.	Mr Mark was not shown to be an untruthful witness and his evidence provides another reason to conclude that there was insufficient evidence for the Dei Open returning officer to conclude that all voting at Mala 2 was unlawful.

216.	I conclude that there were no good reasons for the Provincial returning officer refusing to admit the two Mala 2 boxes for scrutiny.

Conclusion re Mala 2

217.	The Provincial returning officer made an error by not counting the two Mala 2 Provincial ballot boxes, in that:

•	he did not make an independent decision not to count the boxes;
•	proper procedures for ruling on objections to ballot boxes were not followed; and
•	there were no good reasons for not counting the boxes.

SECOND ISSUE: WERE ERRORS OR OMISSIONS MADE BY REJECTING THE KELTIGA BOX?

218.	The petitioner argues that the Provincial returning officer, Mr Rawali, erred by deciding not to count the Keltiga Provincial ballot box, in the following ways:

•	he did not make an independent decision not to count the box;
•	proper procedures for ruling on objections to ballot boxes were not followed;
•	he failed to comply with a lawful direction to count the box; and
•	there were no good reasons for not counting the box.

Did the Provincial returning officer make an independent decision?

219.	Mr Rawali took the same approach to the Keltiga boxes that he took to the disputed Mala 2 boxes. He relied on and acted entirely in accordance with the decision of the Open returning officer; in this case, Mr Paul Goimba. The only reason he counted one of the Keltiga boxes (No 0385) is that he was advised, on 6 August (the day after the court order) to count six boxes that were the subject of the court proceedings. Those boxes include the two Keltiga boxes but only one was found. Be that as it may, it was the same sort of error made in relation to the Mala 2 boxes that led to Keltiga box No 0386 not being counted.

220.	Mr Rawali had a discretion to exercise but failed to exercise it. Instead he rubber-stamped the exercise of discretion by Mr Goimba. He abdicated responsibility for making a considered decision to Mr Goimba. I conclude that Mr Rawali did not make an independent decision.

Were proper procedures followed?

221.	As I said when discussing this issue in relation to the Mala 2 boxes, if a scrutineer, candidate or polling officer objects to a ballot box being admitted to scrutiny, the returning officer must document the objection, record his decision making process and clearly state what opinion has been formed for the purposes of Section 153A(1) and the reasons for forming that opinion.

222.	With the Keltiga boxes, it was a polling officer – the Open returning officer, Mr Goimba – who took objection to the Open boxes being counted, for the reasons stated in a letter to the Electoral Commissioner dated 26 July:

This is to inform your office that after count No 95 [for the Hagen Open seat] from the total of 104 ballot boxes used in the elections there are eight ballot boxes remaining to be counted and in dispute and my decision is to reject the eight ballot boxes. These are as follows: …

[Re Keltiga:] Two different polling teams polling on one table causing four persons signing or initialling the ballot papers. Discrepancies found on the ballot papers causing the integrity of the ballot boxes. [sic] Reports from security personnel confirms that the ballot papers hijacked at Tee School were used at Keltiga.

223.	Mr Rawali’s response to Mr Goimba’s objection was to convey it, on the same day to the Commissioner, with a covering note that stated:

Boss

Find the letter attached on the decision of the Hagen Open electorate by the RO for your comment and advice.

224.	The Commissioner responded the same day, concurring with Mr Goimba’s position, before apparently changing his mind the next day, 27 July, and directing Mr Goimba not to declare the result of the election until he counted five boxes, which included the two Keltiga boxes. Later the same day he stood down Mr Goimba but then, two days later, issued a media statement that he accepted the result that had been declared for Hagen Open. This was confusing to say the least. But for the purposes of resolving the issue of whether proper procedures were followed, I find that Mr Rawali did not:

•	document or register the objection;
•	examine the ballot papers to check that each one had surplus initials (which was critical given the nature of the objection);
•	record the steps he took to inquire into the objection and determine whether it was valid;
•	make a clear statement of the opinion he had formed for the purposes of Section 153A; and
•	state the reasons for forming that opinion.

225.	His failure to adopt such procedures was another error of law.

Did the PRO fail to comply with a lawful direction?

226.	No. The direction that the Commissioner gave to Mr Goimba on 27 July to count the Keltiga boxes (which Mr Goimba did not follow and led the Commissioner to stand him down later that day) was only in relation to the Hagen Open electorate. I reject Mr Manase’s submission that the direction was impliedly also addressed to Mr Rawali in relation to the Provincial ballot boxes. I uphold Mr Kongri’s and Mr Nii’s submission that there was, in fact, no direction issued to Mr Rawali.

227.	A direction by the Commissioner to admit or not to admit a ballot box to scrutiny must, I consider, be express. Presuming for the moment that the Commissioner can lawfully give such a specific direction (and in light of the Supreme Court decision in Peter Peipul v Pila Niningi (1998) SC580 there are clear limits on the exercise of that power) the direction must be addressed to a particular returning officer and relate to a specific ballot box. A direction that is vague or ambiguous should not be regarded as a direction at all.

228.	As I pointed out earlier, it turned out that Keltiga box No 385 was counted on Monday 6 August. It was one of the six that Mr Rawali said he was "advised" to count that day. Whether he was acting under a direction to count those six boxes or whether he had simply received advice to count them is not clear. I am not prepared to infer that he had been given a direction. The evidence is not good enough.

229.	I conclude that Mr Rawali did not fail to comply with a direction to count the Keltiga box. He made no error in that regard.

Were there good reasons for not counting Keltiga box No 0386?

230.	I now consider the question of whether, despite making errors in the manner in which he decided to reject the Keltiga box, the Provincial returning officer made the correct decision.

231.	The reason the box was rejected was that when the Open ballot papers were put onto the sorting table at the Open counting centre, counting officials noted that each ballot paper had four different signatures on the back. Mr Goimba sought an explanation from the presiding officers, Raphael Agua and David Kolima, and they said that they used one table for polling and each ballot paper had been signed by the two presiding officers and two assistant presiding officers. That was not the requirement and he could not believe what the presiding officers were saying. So he rejected all the ballot papers from Keltiga. Mr Rawali took the same position.

232.	The Organic Law says that a ballot paper must be initialled and if it is not, it is informal.

233.	Section 126 (ballot papers to be initialled) states:

No ballot-paper shall be delivered to a voter without being first initialled or affixed with an official mark as prescribed by the presiding officer, and an exact account shall be kept of all initialled ballot-papers.

The initials of the presiding officer shall be placed on the back of the ballot-paper in such a position as to be easily seen when the ballot-paper is folded so as to conceal the names of the candidates.

234.	Section 136(1) (right of elector to receive ballot paper) states that if a person wishing to vote satisfies certain criteria:

The presiding officer or a poll clerk shall, at the polling, hand to each person claiming to vote a ballot-paper duly initialled or affixed with an official mark as prescribed by the presiding officer.

235.	Section 153(1)(a) (informal ballot papers) states a ballot paper is informal where:

 … it is not authenticated by the initials of the presiding officer or by an official mark as prescribed.

236.	None of those provisions prohibit a person other than the presiding officer initialling a ballot paper, in addition to the presiding officer. Sections 136 and 153 are provisions that regulate a citizen’s constitutional right to vote. They should be read in a way that facilitates the exercise of that right. As there is no express prohibition against other persons initialling the ballot paper, the prohibition should not be implied. A citizen should not be denied a ballot paper if it has more than the presiding officer’s initials on the back. Likewise the ballot paper should not be regarded as informal if it has surplus initials on it.

237.	Each case should still, of course, be determined on its merits. If the surplus initials are not those of polling officials, there might be good cause for the ballot paper being informal. But in the present case, the presiding officer for box No 0386 was David Kolima; and the surplus initials belonged to Raphael Agua (the presiding officer for team 29, box No 0385) and two assistant presiding officers.

238.	Raphael Agua explained in his oral evidence that the two teams had only been given one table so they joined forces and set up one polling station. I thought this was a sufficient explanation.

239.	Mr Goimba, in his letter to the Commissioner on 26 July, indicated that he was suspicious about what happened at Keltiga. In his oral evidence he said that he did not believe what the presiding officers were telling him. I think he was right to regard the surplus initials as irregular and he was justified in regarding the situation as suspicious. However, as a matter of law, there was insufficient reason to regard the ballot papers as informal. More importantly there was insufficient evidence before him on which he could properly form the opinion for the purposes of Section 153A that the ballot papers in Keltiga box No 0386 had not been lawfully cast or that the ballot box had been tampered with so as to compromise the integrity of the ballot papers.

240.	There was no other evidence before the court to show good reasons for rejecting this box.

241.	I conclude that there were no good reasons for the Provincial returning officer refusing to admit the box for scrutiny.

Conclusion re Keltiga 

242.	The Provincial returning officer made an error by not counting the Keltiga Provincial ballot box No 0386, in that:

•	he did not make an independent decision not to count the box;
•	proper procedures for ruling on objections to ballot boxes were not followed; and
•	there were no good reasons for not counting the box.

THIRD ISSUE: WERE ERRORS OR OMISSIONS MADE BY REJECTING THE KORKUM BOXES?

243.	The petitioner argues that the Provincial returning officer, Mr Rawali, erred by deciding not to count the two Korkum Provincial ballot boxes, in the following ways:

•	he did not make an independent decision not to count the boxes;
•	proper procedures for ruling on objections to ballot boxes were not followed;
•	he failed to comply with a lawful direction to count the boxes; and
•	there were no good reasons for not counting the boxes.

Did the Provincial returning officer make an independent decision?

244.	Mr Rawali took the same approach to the Korkum boxes that he took to the disputed Keltiga box. He relied on and acted entirely in accordance with the decision of the Open returning officer, Mr Goimba.

245.	Mr Goimba reported to him that there was no proper polling at Korkum, either on 6 or 7 July, and that is why he rejected the Open boxes. Mr Rawali rejected the Provincial boxes for the same reason.

246.	I draw the same conclusion as I did regarding the Keltiga box (and the Mala 2 boxes). Mr Rawali had a discretion to exercise but failed to exercise it. Instead he rubber-stamped the exercise of discretion by Mr Goimba. He abdicated responsibility for making a considered decision to Mr Goimba. I conclude that Mr Rawali did not make an independent decision.

Were proper procedures followed?

247.	Mr Goimba took objection to the Korkum boxes being admitted to scrutiny, and made a decision to reject the Open boxes, for the reasons stated in his letter to the Electoral Commissioner of 26 July:

Hijacking of ballot boxes and papers on Friday 6/7/07. Re-polling on Sat 7/7/07, however villagers in truckloads line up to vote. Polling closed as voters on roll did not vote.

248.	This was the same letter in which Mr Goimba informed the Commissioner of his decision to reject six other ballot boxes, including the two Keltiga boxes. He also informed the Commissioner that he had decided to declare the result of the Hagen Open election later that day.

249.	Mr Rawali conveyed the letter on the same day to the Commissioner, for his comment and advice. As I pointed out in relation to the Keltiga box, the Commissioner responded the same day, concurring with Mr Goimba’s position, before apparently changing his mind the next day, 27 July, and directing Mr Goimba not to declare the result of the election until he counted five boxes (which did not include the two Korkum boxes). This was very confusing but for the purposes of resolving the issue of whether proper procedures were followed, I find that Mr Rawali did not:

•	document or register the objection that Mr Goimba was taking to the Korkum boxes being counted;
•	record the steps he took to inquire into the objection and determine whether it was valid;
•	make a clear statement of the opinion he had formed for the purposes of Section 153A; and
•	state the reasons for forming that opinion.

250.	His failure to adopt such procedures was another error of law.

Did the PRO fail to comply with a lawful direction?

251.	The Korkum boxes were not included in the Commissioner’s letter of 27 July to Mr Goimba, directing him to count five ballot boxes before declaring the result of the Hagen Open electorate. So that letter is not even evidence of an implied direction.

252.	The only other piece of evidence that comes close to showing that there was any direction to count them was Mr Rawali’s oral testimony, which was that on 6 August he was "advised" to count six boxes. However, as I said earlier in relation to the Keltiga box, an advice is not a direction. I cannot infer from the available evidence that the Commissioner gave Mr Rawali a direction to count the Korkum boxes.

253.	I conclude that Mr Rawali did not fail to comply with a direction to count the Korkum boxes. He made no error in that regard.

Were there good reasons for not counting the Korkum boxes?

254.	I now consider the question of whether, despite making errors in the manner in which he decided to reject the Korkum boxes, the Provincial returning officer made the correct decision.

255.	Mr Rawali rejected the boxes because Mr Goimba reported to him that he had rejected the Open boxes due to illegal polling on both Friday and Saturday, 6 and 7 July. Mr Goimba made his decision based on what was told to him by the two AROs he sent to Korkum on Saturday. They told him that it was obvious that the locals who had caused the trouble on Friday had fronted up to vote on Saturday. They were ineligible voters, so the two AROs decided that polling must close. They closed the polling with the assistance of Defence Force and Police Force personnel.

256.	That version of the events at Korkum on Saturday 7 July came from Mr Rawali and Mr Goimba, neither of whom was present at the polling place. The only direct evidence of what happened came from the presiding officer, Mr Agua. He said that polling was conducted normally and a lot of eligible voters came to cast their votes before polling was closed down by the two AROs.

257.	Mr Kongri and Mr Nii submitted that Mr Agua’s evidence was of little value. They submitted that he was an unreliable witness, his demeanour in the witness box was poor, his affidavit [exhibit 18] was illogical, his evidence was uncorroborated and he admitted that he did not lodge a return showing the ballot papers that had been cast.

258.	I do not accept that assessment of Mr Agua’s evidence for the following reasons:

•	I thought that his demeanour was satisfactory. He did not give the impression of being someone who was making things up or lying. Mr Kongri criticised him for constantly looking at Mr Manase (rather than the Judge) when Mr Manase was asking him questions. But that is the way that human beings communicate. When someone asks you a question you look at them and give the answer.

•	His affidavit contained some errors, which he corrected in examination-in-chief. He mixed up dates in a way that I thought was insignificant.

•	As for his evidence being uncorroborated, that is true. It would have been better if the presiding officer working alongside him, David Kolima, had given evidence. Mr Kongri posited the view that the failure to call Mr Kolima was deliberate, as his evidence would not have supported the petitioner’s case. Mr Kongri referred to an affidavit sworn by Mr Kolima which had been filed but not tendered by the petitioner. That is where Mr Kongri’s argument ends. The affidavit was not admitted in evidence so I have not looked at it. It would be improper for me to take into account what a party’s counsel says is in it.

•	As for his failure to file a return, I thought he gave a reasonable explanation for that. Polling was ended abruptly and he was not given the chance to follow normal procedures. The two AROs who closed the polling packed up all the election materials and put everything in the ballot boxes with the cast ballot papers.

•	He must have been someone, who was to a large extent, a trusted polling official, as it was him who Mr Goimba dispatched to Korkum on Saturday after polling was abandoned the previous day.

259.	Mr Agua gave credible evidence that polling was conducted lawfully on Saturday 7 July and the respondents presented no evidence that directly contradicted it. The two AROs who closed the polling were not called. Mr Goimba and Mr Rawali only gave evidence of what they were told. The evidence available to the court therefore supports the conclusion that proper polling took place.

260.	I conclude therefore that there were no good reasons for the Provincial returning officer refusing to admit the boxes for scrutiny.

Conclusion re Korkum 

261.	The Provincial returning officer made an error by not counting the Korkum Provincial ballot boxes, in that:

•	he did not make an independent decision not to count the boxes;
•	proper procedures for ruling on objections to ballot boxes were not followed; and
•	there were no good reasons for not counting the boxes.

FOURTH ISSUE: SHOULD GROUND 1 OF THE PETITION BE UPHELD?

262.	The Provincial returning officer erred by not counting the ballot papers in the five contentious ballot boxes. Therefore ground 1 of the petition is upheld.

FIFTH ISSUE: WERE COUNTING OFFICIALS INTIMIDATED AT THE COUNTING CENTRE?

263.	This is the first of five issues or sub-grounds that have been raised under ground 2 of the petition, which concerns alleged illegal or improper practices and/or errors or omissions committed at or around the counting centre.

264.	The petitioner claims that as soon as Boki Raga announced that there was a court order suspending counting on the evening of Sunday 5 August, armed Defence Force and Police Force personnel stepped in. They intimidated and threatened the counting officials and scrutineers and chased them out of the counting centre. They then packed all the ballot papers (which had been sorted but not counted) into ballot boxes and took them away, without being supervised by counting officials or checked by scrutineers.

265.	There is no evidence to support those claims. The counting official, Michael Wakene, and Mr Wingti’s scrutineer, Tom Korowa, both gave evidence that there was some tension in the counting centre and that the Defence Force and Police Force personnel were impatient and abrupt. But there was no clear evidence of threats or intimidation. Neither Mr Wakene nor Mr Korowa saw who packed up the ballot papers.

266.	The four Electoral Commission officers who gave evidence (Mr Openakale, Mr Raga, Mr Rawali and Mr Mala) said nothing about threats or intimidation, so I conclude that there was none.

SIXTH ISSUE: WAS THERE INADEQUATE CONTROL AND SECURITY OF THE BALLOT BOXES?

267.	The respondents submit that once the court order came in on the evening of 5 August, the Electoral Commission officials did all that was required. They packed up the ballot papers, locked the ballot boxes and put them in the safe custody of the Defence Force and Police Force personnel, who took them away.

268.	I am not convinced, however, that what they did was adequate in all the circumstances.

Line of command

269.	First, there appears to have been no clear line of command amongst the Electoral Commission officers. Three senior officers were present on Sunday evening: Mr Raga, who was, in terms of his position in the organisation, most senior; Mr Openakale, the Highlands Operations Manager and acting Provincial returning officer; and Mr Rawali, the Western Highlands Election Manager and the substantive Provincial returning officer. But not one of them seemed to be singly in control of the counting centre.

270.	As a matter of law the person in control should have been the returning officer. But who held that position on Sunday evening? Mr Rawali or Mr Openakale? The latter had been appointed acting PRO by an instrument of appointment executed by the Commissioner on 2 August, which stated:

The Electoral Commission, by virtue of the powers conferred by Section 21 of the Organic Law on National and Local-level Government Elections and all other powers it enabling, hereby appoints Tiene Openakale to act in the office of the Provincial Returning Officer for the Western Highlands Province in the absence of Kala Rawali.

271.	Mr Openakale had been appointed because Mr Rawali was sick. Given the terms of the instrument of appointment, it appears that when Mr Rawali came to the counting centre sometime on Sunday 5 August, Mr Rawali ceased to be absent and Mr Openakale’s acting appointment lapsed. But it is unclear from the evidence when, exactly, Mr Rawali resumed duty. Mr Openakale said that Mr Rawali was present in the morning but he was not sure if he was present in the afternoon. Mr Wakene said that Mr Rawali was not present when the court order was announced. Mr Rawali said he was present when the court order came in. The other evidence did not shed light on this issue.

272.	Mr Rawali struck me as fairly reliable and honest witness and he is in the best position to know whether he was present when the court order came in. So I find as a fact that he was present. Nothing was documented about his return to duty, however, which is unsatisfactory.

273.	I consider that in view of the wording of the instrument of appointment, Mr Rawali was the returning officer when he was physically present at the counting centre and Mr Openakale was the acting returning officer whenever Mr Rawali was absent from the counting centre. That means that at around 6.30 pm on Sunday 5 August, when the court order was faxed to the counting centre and Mr Rawali was present, he was the PRO – the person in control of the counting centre.

274.	At least he should have been in control. But he was not in control as Mr Raga took it upon himself to announce that counting was suspended.

275.	Mr Raga justified his actions by saying that he was the most senior Electoral Commission officer present. But as matter of law his seniority in the organisation should not have counted for anything. Mr Openakale was correct when he doubted, in evidence, whether Mr Raga, who was primarily an adviser, had the authority to make such an announcement. Under the Organic Law, Sections 19 and 149, it is the returning officer who is charged with the duty of giving effect to the Organic Law in his electorate and is responsible for conducting the scrutiny at the counting centre.

276.	The lack of a clear line of command and responsibility is further demonstrated by the manner in which the critical task of packing up the ballot papers was carried out.

277.	Mr Openakale said he supervised the packing of the ballot papers into boxes for safekeeping and was assisted in the packing of the ballot papers by two female counting officials. They put the papers in six or seven boxes. He gave them locks and asked them to take charge of the keys. He did not keep a record of the number of bundles of counted votes for the two candidates. All the boxes were locked up with sticky tape around each one. He does not know where the boxes were taken to. He just left the counting centre. He gave the officials the keys as he did not want to be implicated in not giving up the keys. In my view this was an extraordinary abdication of responsibility.

278.	Perhaps Mr Openakale’s reluctance to take responsibility was due to Mr Rawali being back on the scene. Mr Rawali said that he instructed counting officials, including Timothy Roika and Roslyn David, to pack the ballot papers into separate boxes, which were padlocked and taken to the police station under heavy police escort. Mr Raga said that it was Mr Openakale who locked the ballot boxes. Mr Mala, the IT man, said that Mr Rawali instructed the counting officials to lock and seal the boxes.

279.	So, who, in fact, was in control? Mr Raga, who suspended the counting? Mr Openakale, the acting PRO, who supervised the packing of the ballot papers but was unwilling to take responsibility for the ballot boxes? Or Mr Rawali, the substantive PRO who had just, apparently, returned from sick leave? The answer is unclear.

Lack of documentation

280.	The second matter of concern is that no one documented the transfer of custody of the ballot papers either on Sunday night or Monday morning. No one signed an acknowledgment of receipt of the papers when they were given to the Defence Force and Police Force personnel. No one signed anything the next morning before counting resumed.

Failure to cross-check

281.	Thirdly, no one counted the ballot papers that had been bundled up on Sunday evening before they were packed away in response to the court order and no one counted them when the ballot papers were returned to the counting centre the next morning. Mr Raga said that nothing was counted on Sunday evening as to do so would have been in breach of the court order. He would have been guilty of contempt of court if he had asked for them to be counted, he said. That is a moot point. The court order stated:

The scrutiny of votes and counting of marked ballot papers for the Western Highlands Provincial seat be suspended pending the ex parte hearing of the plaintiff/applicant’s substantive application.

282.	I do not think that any contempt would have been committed if all that had happened was that the bundled up ballot papers – those that had already been counted – were counted to verify how many were in each category (Wingti, Olga or exhausted). Of course it is easy to say that in hindsight. It is understandable that nobody wanted to count anything as the court order can be interpreted as putting a stop to anything that might be seen as counting.

283.	Given that that was a reasonable position to take, it became incumbent on the Provincial returning officer the next morning, when the court order was lifted, to start the count again. By that, I mean, recount the number of votes that had been put into three categories (Wingti, Olga and exhausted votes) and bundled up into 500s. A recount of that nature was necessary in order to allay doubts or suspicions arising from the break in the counting due to the court order and the concern raised by Mr Wingti’s scrutineer, Tom Korowa, that there were more ballot papers on Mr Olga’s table than had been the case the previous day. He asked for the ballot papers to be unbundled and counted again but was told to shut up or he would fly out the window. That was not a proper response to a legitimate request.

284.	In all the circumstances I conclude that there was inadequate control and security of the ballot papers on 5 and 6 August.

SEVENTH ISSUE: WERE BALLOT PAPERS TAMPERED WITH ON THE NIGHT OF 5 AUGUST?

Petitioner’s evidence

285.	The petitioner wants me to conclude that Mr Olga’s tally was boosted by about 5,000 votes. The evidence from his scrutineer, Tom Korowa, is that compared to what he saw the previous evening, the number of exhausted votes was significantly lower; and the number of votes on Mr Olga’s table was much more than on Mr Wingti’s table. There were five bundles of 1,000s on Mr Olga’s table and none on Mr Wingti’s table. That is when he asked that all ballot papers be re-checked but was told to shut up.

286.	The evidence of the counting official, Michael Wakene, was similar. There were some bundles of 1,000s, whereas there were none the previous day. The officials remarked that ‘some miracle’ must have happened because the previous day’s ballot papers were bundled differently. He noticed that there seemed to be more bundles on Mr Olga’s table than there was the day before. He concluded that someone must have bundled them overnight.

287.	Mr Korowa was not an independent witness but he was not shown to my satisfaction to be a dishonest witness. As for Mr Wakene, he was a counting official and I was given no reason to think that he was one-sided or dishonest. Against that, the evidence of both of them was rather vague.

Respondents’ evidence

288.	The respondents offered little evidence to rebut those allegations. Mr Openakale said he was not in charge of the counting on Monday 6 August. Mr Raga left for Port Moresby on Monday morning. Mr Rawali was focussed on counting the six disputed ballot boxes that he had been advised to count (but could only find three of them). Mr Mala said that he did not see any bundles of 1,000s.

Relevance of suspicion

289.	The respondents have drawn my attention to two National Court decisions of Woods J in which his Honour stressed that the petitioner must bring to the court clear evidence of errors or omissions: Paua v Nagle [1992] PNGLR 563 and Kakale v Pundari [1993] PNGLR 454.

290.	The principle that the respondents want me to extract from those cases is that the court cannot overturn an election result simply on the basis of inferences or suspicions to be drawn from the evidence.

291.	I agree with that, to a certain extent. But an election petition must be heard one step at a time. If a returning officer or the Electoral Commission allows the scrutiny process to be conducted in a way that gives rise to reasonable suspicion that something corrupt has happened, than that, in my view, is an error. Whether it is a significant error, sufficient to overturn the result of the election is a different question, to be addressed after the court records the errors that have been made and then addresses the question of what orders or other remedies, if any, should be made or granted.

Conclusion re tampering allegation

292.	In this case, I am not prepared to make a finding of fact that Mr Olga’s tally was boosted by 5,000 votes as alleged. Nor can I find as a fact that the ballot papers were tampered with overnight. However, I do find that there are reasonable grounds for suspecting that the ballot papers were tampered with.

EIGHTH ISSUE: WERE THERE MATERIAL DISCREPANCIES IN THE TALLY SHEETS?

Respondents’ position

293.	The respondents say that there were no material discrepancies and that the differences in the final figures on Form 66A and the opening figures on Form 66B were the result of human error, which is inevitable under the LPV system.

294.	It was nothing to worry about, according to Mr Rawali and Mr Mala. Mr Openakale took a different stance when quizzed on the differences. He said it was not normal and told Mr Manase that he should ask Mr Rawali such questions, who should have ensured that it was ‘properly done’. As for Mr Raga, he also adopted the human error line, but when pressed for a detailed explanation said that ‘the IT man’ would be in the best position to explain the apparent discrepancies.

The issue

295.	There is no doubt that there are discrepancies in the figures. The question naturally arises whether they are material and whether there is, despite the assurances of three of the Electoral Commission officers, something to worry about. Before addressing that question I have to deal with an important procedural point.

Is the issue properly before the court?

296.	The respondents, quite reasonably, argued that the issue of discrepancies in the tally sheets was not raised in the petition. Therefore the court should not address the issue. It is a non-issue. The argument has a strong pedigree, going back to the Supreme Court decision in Delba Biri v Bill Ninkama [1982] PNGLR 342, which was that the National Court has no power to allow amendment of a petition after expiration of the time limit for filing it. It follows, the argument goes, that a petitioner is confined to the grounds set out in the petition, which are akin to pleadings in a civil case. It is a fundamental principle of civil practice and procedure that parties are confined to the pleadings and the same principle should apply to the hearing of election petitions.

297.	That all makes sense but a more liberal approach has been taken in recent times, exemplified by the National Court decision of Amet CJ in Maino v Avei [1998] PNGLR 178, the Supreme Court decision in Application by Ben Semri (2003) SC723 (confirming the approach of Injia J in Assik Tommy Tomscoll v Ben Semri (2003) N2349) and the recent National Court decision of Kandakasi J in Kamma v Itanu, Electoral Commission and Laimo (2008) N3246 (the South Bougainville Open case).

298.	All of those cases implore the courts to take seriously Section 217 (real justice to be observed) of the Organic Law, which states:

The National Court 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.

299.	 As a result of those cases it is clear that when deciding whether to order a re-count of all ballot papers in an electorate the National Court may consider all the circumstances of the case. That may include errors or omissions by electoral officials that were not expressly alleged in a petition, provided that their revelation was incidental to a determination of the express grounds of the petition, that the respondents have had the opportunity to be heard on those issues and that to decide the petition on those issues would not be otherwise contrary to the principles of natural justice.

300.	 I consider that the issue of discrepancies in the tally sheets is properly before the court, as it is incidental to a determination of the express grounds of the petition and the respondents have had full opportunity to address the court on the issue and there has been no denial of natural justice.

What is the argument about?

301. Mr Manase has seized upon two sets of figures: the final figures in Form 66A and the opening figures in Form 66B. Form 66A is the tally sheet showing distribution of first preference votes received by each of the 26 candidates after each of the 639 counts. It gives a progressive tally of votes and concludes with a total of first preference votes for each candidate. The total is then posted to Form 66B, the tally sheet showing the distribution of preference votes, the number of exhausted votes and the order of each exclusion or elimination.

302.	The final figures on Form 66A show:
•	Mr Olga had 69,574 votes; and
•	Mr Wingti had 89,350 votes.

303.	However, the opening figures posted to Form 66B show:

•	Mr Olga had 69,275 votes; and
•	Mr Wingti had 89,666 votes.

304.	The figures for the other 24 candidates also did not match, as shown in the following table.

DISCREPANCIES IN TALLY SHEETS

No	Candidate	Form 66A	Form 66B	Difference	
1	Thomas Nolonga Amuk	20,502	20,616	+114	
2	Alphonse Pu	7,832	7,783	-49	
3	Joe Goi	2,253	2,202	-51	
4	Anna Nepa	2,527	2,511	-16	
5	Wai Rapa	41,613	41,134	-479	
6	Billy Kombul	3,675	3,676	+1	
7	Casper W Laka	14,795	14,743	-52	
8	Wan Wak	26,759	26,614	-145	
9	Paulus Koim Kunai	13,535	13,190	-345	
10	Peter Wama	5,452	5,441	-11	
11	Tom Pu Watinga	24,344	23,980	-364	
12	Peter Moti	3,153	3,164	+11	
13	Solomon Kawi Kuma	979	971	-8	
14	Pius Morri Kuri	2,218	2,223	+5	
15	Patrick Nema	15,697	15,523	-174	
16	Philip Kapal	8,652	8,590	-62	
17	Elias Mai Kombo	2,877	2,593	-284	
18	Tom Olga	69,574	69,275	-299	
19	James Kond	12,427	12,384	-43	
20	Michael Rui	1,538	1,524	-14	
21	Michael T Kolmal	4,625	5,605	980	
22	Robert Enga 	262	272	+10	
23	Sandy Kagal	529	517	-12	
24	Jack Jimben	25,255	25,160	-95	
25	Joe Moka	13,077	12,561	-516	
26	Paias Wingti	89,350	89,666	+316	
	Total	413500	411918	-1582	

305.	Mr Manase’s submission is that these discrepancies should not have existed and that the result should not have been declared without a recount.

The explanation

306.	Mr Kongri and Mr Nii responded by pointing out that, as explained by Mr Rawali and Mr Mala, there was a recount. The opening figures in Form 66B are the result of a recount, which is called the quality check. Electronic counting is not used and an element of human error is unavoidable. After the primary votes were counted for the first time, the progressive tallies were posted to Form 66A. Then there was a quality check done. Each candidate’s ballot papers were counted again and the figures posted to Form 66B.

307.	Inevitably, human error comes into play. There are bound to be discrepancies. This has been found to be the case with all the elections conducted under the new voting system, according to the evidence of Mr Rawali and Mr Mala.

Material or immaterial?

308.	I am sympathetic to the position explained by Mr Rawali and Mr Mala and can accept that some human error is inevitable. The counting officials have a mammoth task to perform in an electorate the size of Western Highlands Province. They work under great pressure and stress for long hours. There is no evidence to warrant a finding that any of them have been compromised (subject to my finding that there are good grounds for suspecting that something irregular might have been done by persons unknown on the night of 5 August).

309.	However, given the extent of the discrepancies, which I do not think should be dismissed as immaterial, I consider that it was necessary to conduct another recount. This would have tested the reliability of the first recount (giving rise to the figures posted to Form 66B). A returning officer has a duty to minimise discrepancies in tallies for candidates and to remove reasonable grounds for believing that the result is unreliable.

310.	I consider that this is a requirement of the LPV Scrutiny Manual, published by the Electoral Commission [exhibit 10]. Though that document might not have status as a written law, it is a useful guideline to follow. It is laying down due diligence procedures that really are simply a matter of common sense.

311.	The total number of first preference votes was reduced from 413,500 to 411,918 when the quality check was done, so 1,582 votes were lost. This was a discrepancy of 0.38%. Surely this was a significant difference that warranted another recount.

312.	As to what should happen if the further recount were to reveal another discrepancy, that would depend on the extent of the discrepancy. No one would want recounts to go on and on, without an end in sight. On the other hand if each recount throws up significant discrepancies there might be no other alternative. To relieve the spectre of endless recounts one option would be for the returning officer to file proceedings in the National Court seeking a declaration that no further recount is necessary. Another, longer term, solution, would be for the Organic Law to be amended to include a formula to apply. For example if the quality check revealed an immaterial discrepancy (defined by a formula) no further recount would be necessary.

313.	However, this was not a case of endless recounts. There was one recount – the quality check – which revealed a discrepancy in the tallies of each of the 26 candidates, significant discrepancies in the tallies of the two leading candidates (Mr Wingti, 0.35%) and Mr Olga (0.42%) and a material discrepancy in the total number of ballot papers (0.38%). A further recount was necessary to preserve the integrity of the scrutiny process.

314.	I conclude that there were material discrepancies in the tally sheets.

NINTH ISSUE: WAS ANYTHING WRONG WITH THE LATE COUNTING OF THE THREE DISPUTED BALLOT BOXES?

315.	At 11.00 am on 6 August counting resumed after the court order was lifted. Six ballot boxes were brought in, those that Mr Rawali said he had been advised to count. It turned out that three of them were Open ballot boxes so they were disregarded. Three Provincial ballot boxes were missing (presumably they were Keltiga box No 0386 and the two Korkum boxes, 0458 and 0860). That left three to be counted. They all came from the Hagen Open electorate and contained a total of 3,304 allowable ballot papers.

316.	The following table shows the number of first preference votes in each box for Mr Olga, Mr Wingti and other candidates.

THREE BALLOT BOXES COUNTED ON 6 AUGUST

Candidate	Palimb
Box No 0391	Tega
Box No 0371	Keltiga
Box No 0385	Total votes	
Tom Olga	3	198	13	214	
Paias Wingti	615	476	273	1364	
Others	392	720	614	1726	
Total allowable
ballot papers	1010	1394	900	3304	

317.	No witness, including Mr Rawali and Mr Mala – the two Electoral Commission officers who seemed to understand the maths involved in the counting process – gave a satisfactory explanation of what happened to these votes. Mr Rawali seemed to say that they did not make any difference to the result of the election as after distribution of preferences Mr Olga was above the 50% + 1 absolute majority mark. Mr Mala said that the votes from those counts were allocated to Mr Wingti, Mr Olga or exhausted votes, in the normal way; and then combined with the figures derived from the quality check, which had been conducted earlier.

318.	I agree with Mr Manase who submitted that what Mr Mala said is not reflected in Form 66B. The opening figures in Form 66B were posted following a recount – the quality check – that took place at least two days before 6 August.

319.	I am left to conclude that the ballot papers from the three late boxes were never added to previous tallies. Thus the result of the election was declared later that day without taking account of 3,304 ballot papers.

320.	Those ballot papers should have been counted. Their existence was another reason, quite apart from the discrepancies uncovered by the recount (ie the quality check) that a further recount of first preference votes for all candidates should have been conducted.

TENTH ISSUE: SHOULD GROUND 2 OF THE PETITION BE UPHELD?

321.	Under the second ground of the petition, which I regard as raising both express alleged errors and issues raised incidentally, the petitioner has proven the following errors committed by the Provincial returning officer and the Electoral Commission:

•	inadequate control and security of ballot papers;
•	material discrepancies in the tally sheets; and
•	a failure to properly take into account 3,304 ballot papers on the last day of counting.

322.	In addition the petitioner has presented the court with reasonable grounds for suspecting that the ballot papers were tampered with on the night of Sunday 5 August.

323.	Ground 2 of the petition, which was aimed at proving errors at or around the counting centre, is therefore upheld, to the extent outlined above.

ELEVENTH ISSUE: SHOULD THE COURT ORDER A RECOUNT OR MAKE ANY OTHER ORDERS OR DECLARATIONS CONCERNING THE ELECTION?

324.	Both grounds of the petition have been upheld and the question now arises as to what remedies should be granted by the Court. The petitioner wants the Court to order a recount, an order that can be made under Section 212(1)(d) (powers of the court) of the Organic Law, which states:

In relation to any matter under this part [Part XVIII, Disputed Elections, Returns, etc] the National Court shall sit as an open court and may, amongst other things … order a re-count of ballot-papers in an electorate.

325.	The respondents submit that no recount should be ordered and the result of the election should be left intact in view of Section 218(1) (immaterial errors not to vitiate election) of the Organic Law, which says that only errors or omissions that are proven to have affected the result of an election should cause the court to set aside an election result. Section 218(1) states:

… an election shall not be avoided … on account of … an error of, or an omission by, an officer which did not affect the result of the election.

326.	They refer to the Supreme Court decisions in Ambane v Electoral Commission and Tumun (1998) SC565 and Reipa v Electoral Commission and Bao (1999) SC606 in support of that proposition. However, I am not, at this point, considering avoiding or vitiating the election. I am not considering making a declaration that Mr Olga was not duly elected or that Mr Wingti should be declared the winner or that the election was void. Those remedies are not, at this stage, being sought by Mr Wingti.

327.	If all that is being sought is an order for a recount, the court does not have to be satisfied that the errors or irregularities that have been found to have occurred affected the result of the election (Maino v Avei [1998] PNGLR 178).

328.	It is a matter of discretion and in exercising its discretion the court is guided by Section 212(3) of the Organic Law, which states:

The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.

329.	The petitioner has succeeded in proving a number of errors on the part of the Provincial returning officer and the Electoral Commission. Five ballot boxes containing about 3,181 votes were not counted, which should have been counted. There was inadequate control and security of ballot papers at or around the counting centre. There are material discrepancies in the tally sheets. Then, just before the result was declared, 3,304 ballot papers were brought in but not properly accounted for. In addition, there are reasonable grounds for suspecting that ballot papers were tampered with during the night before the result was declared.

330.	Considered individually, some of those errors would justify a recount. When considered together, and in light of all the evidence brought before the court, the petitioner has presented a very strong case for a recount and that is the order that I consider would be just and sufficient, at this stage.

RESOLUTION OF ISSUES

331.	To sum up, I have resolved the 11 issues identified at the beginning of the judgment as follows:

(1)	Yes, errors were made by rejecting the Mala 2 boxes.
(2)	Yes, errors were made by rejecting the Keltiga box.
(3)	Yes, errors were made by rejecting the Korkum boxes.
(4)	Yes, ground 1 of the petition is upheld.
(5)	No, counting officials were not intimidated at the counting centre.
(6)	Yes, there was inadequate control and security of ballot papers.
(7)	There are reasonable grounds for suspecting that ballot papers were tampered with on the night of 5 August.
(8)	Yes, there were material discrepancies in the tally sheets.
(9)	Yes, errors were made with the late counting of three disputed ballot boxes.
(10)	Yes, ground 2 of the petition is upheld.
(11)	Yes, the court will order a recount.

COSTS

332.	I will hear the parties on the question of costs before making an order.

ORDER

333.	I will order, under Section 212(1)(d) of the Organic Law, a recount of ballot papers in the Western Highlands Provincial electorate, which must include ballot papers in the five contentious ballot boxes the subject of ground 1 of the petition and in the three ballot boxes brought to the counting centre on 6 August 2007. The result of the recount must be presented to the National Court for ratification.

334.	I will settle the terms of the order after hearing parties on the following issues:

(1)	Where will the recount be conducted?
(2)	Who will conduct the recount?
(3)	When must it start?
(4)	When must it finish? (This would be a target date and the Electoral Commission would be at liberty to apply to the court for more time, if needed.)
(5)	When must the result be presented to the National Court?
(6)	Any other matters that the parties consider need to be made the subject of an order.

335.	The order does not affect the status of the third respondent and I declare for the avoidance of doubt that Mr Tom Olga remains in office as the Member for Western Highlands Provincial unless and until he loses office by virtue of a court order or the exercise of power by some other lawful authority.

Judgment accordingly.
___________________________

Steeles Lawyers: Lawyers for the Petitioner
Nonggorr & Associates: Lawyers for the 1st and 2nd Respondents
Harvey Nii Lawyers: Lawyers for the 3rd Respondent