N3534

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP No.3 of 2007

BETWEEN:

ALFRED MANASE
Petitioner

AND:

DON POMB POLYE
First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second respondent

Mount Hagen: Lay J.
2008: 23rd October, 1st December

CIVIL - National Elections - issues raised by court - whether court should decide questions of fact before close of the evidence - whether petition viable if ground struck out - test for viability of petition - meaning of ‘winning margin’ in Limited Preferential Voting System.

Facts

Before the close of the evidence the Court directed that the parties submit on whether a ground of the petition had been proven by the Petitioner’s evidence, and if not proven whether the Petitioner could still succeed on the remaining grounds of the Petition.

Held

1.	The Court can decide a ground of a Petition before the close of the evidence if it will result in the petition being stopped, but if it will not have that result it is best not to decide;

2.	In an election decided on first preferences under the Limited Preferential voting system whether a Petition can succeed should be determined by asking; do the number of votes affected by the allegations in the petition exceed the number of votes of the winning margin?;

3.	The winning margin in the Limited Preferential voting system is the number of votes received by the successful candidate above or in addition to the absolute majority required by s168 of the Organic Law.

4.	Counsel for a constitutional office should draw to the Court’s attention all of the relevant law which his client is constitutionally mandated to administer.

5.	Assuming for the argument that the ground raised for submissions was not proven, the votes affected by the remaining ground of the petition still exceed the number of the winning margin. Therefore it is not necessary or desirable to rule on that ground. The petition is still viable and the trial should continue.

PNG Cases Cited:
James Marabe v Tom Tomiape (2006) SC827
 Ben Micah v Ling Stuckey (1998) N1790
Benroy Baira v Kilroy Genia (1998) SC579
Benny Diau v Mathew Gubag (2003) N2354
Benny Diau v Mathew Gubag (2004) SC775
Application for Review; Robert Kopoal v Philemon Embel (2003) SC727
Raymond Agonia v Albert Karo & Anor (1992) N1115
Korak Yasona v Castan Maibawa (1998) SC553
Application by William Ekip Wii; SC45 of 1994; Application for Judicial Review
Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354; 
Louis Ambane v Electoral Commission & Ors (1998) SC559
Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338
Dick Mune v Paul Poto (No.2) [1997] PNGLR 356
Baki Reipa v Yuntivi Bao [1999] PNGLR 232
Paias Wingi v Kala Rawali (2008) N3285
Tom Olga v Paias Wingti (2008) SC938

References
Organic Law on National and Local Level Government Elections
Electoral Law (National and Local-Level Government Elections) Regulation 2007 

Counsel
P. Mawa, for the Petitioner
P. Dowa, for the First Respondent
R. William, for the Second Respondent

1 December, 2008

LAY J.: Don Pomb Polye and Alfred Manase were candidates for the Kandep Open Seat in the 2007 National Elections. Mr Polye is the successful candidate and Member of Parliament and Mr Manase has challenged his election.

2. At the end of the Petitioner's case the Electoral Commission’s counsel indicated that he was contemplating making a "no case" submission. Ultimately he did not do so.

3. Mr. Polye’s evidence has proceeded to conclusion, albeit with significant disruptions due to Local Level Government Elections in Kandep and local level government election related violence in Mount Hagen, where the trial has been conducted.

4. As Mr. Polye’s case closed and the Electoral Commission indicated that it proposed to call up to 23 witnesses, I remained concerned that issues which arose at the close of Mr. Manase’s case had not been addressed, partly due to the foreshadowed "no case" application not materialising.

5. I therefore directed counsel that before the Court embarks on the hearing of the evidence for the Electoral commission’s case, counsel should address the court on those issues which I considered arose at the close of Mr. Manase's case, namely: in relation to ground E1of the Petition, which alleges that 8 boxes of ballot papers were excluded from the counting by the District Returning Officer for improper reasons:

a)	is Mr. Manase’s evidence capable of proving the pleaded ground?; and

b)	if the evidence does not prove the ground can Mr. Manase still succeed on the Petition?

6. Counsel for the Petitioner has raised a preliminary jurisdictional issue, namely that I should not proceed to determine the questions raised at this stage of the trial.

7. The issues then for determination are:

c)	Can I proceed to determine issues of fact solely on the evidence for the Petitioner at this stage of the trial?

d)	Whether the evidence called for the Petitioner in respect of the 8 ballot boxes is capable of proving the allegations in the petition?

e)	If the evidence does not prove the allegation in respect of the 8 boxes, can the Petitioner still succeed on the Petition?

8. However, because of the conclusions I have reached regarding the issues, they are more conveniently addressed in the order of a), c) & b). And while addressing a) I will explain the rationale behind giving the direction to argue the issues.

Can Issues of Fact be Determined on the Petitioner’s Evidence alone before Close of the Evidence?

9. I gave a direction to argue the issues raised firstly because I concluded from the Supreme Court decision of James Marabe v Tom Tomiape (2006) SC827, Hinchliffe, Batari and Cannings J. J., that having heard evidence and argument, when the evidence fails to prove a ground I may strike it out. In that case the Court said:

"... a petition Judge is not estopped by an earlier refusal to dismiss an objection to competency, from finding that a ground of an election petition is misconceived. The purpose of hearing an objection to competency is to ensure that a prima facie consideration of the ground of a petition makes it clear to the other parties what the case is that they have to meet. Sometimes a Judge will not dismiss an objection and give the benefit of the doubt to the petitioner. However, when the issue is fully argued and evidence is brought and further light is shed on the issue at the hearing of the petition, it might transpire that the Judge will conclude that, in fact, the ground is misconceived. Such a scenario is neither extraordinary nor improper..."

10. This is not strictly a case of the Court considering a ground misconceived, but of the Court being concerned that Petitioner’s evidence possibly did not prove the ground and raising the issue of its own motion because the parties have chosen not to do so. In Ben Micah v Ling Stuckey (1998) N1790 (Kirriwom J), the Court struck out a petition on a ‘no case’ submission when the petitioner’s evidence did not prove the pleaded grounds. 

11. In Benroy Baira v Kilroy Genia (1998) SC579 Kapi DCJ as he then was said:

"In my opinion it would be open to a judge, having regard to the terms of s217 of the Organic Law to stop a case, if it is clear that there is no evidence to prove any ground for invalidating an election."

12. In Benny Diau v Mathew Gubag (2003) N2354 Salika J considered it was appropriate to hear a no case submission in an election petition. In that case the judge had himself identified a deficiency in the evidence, the key witnesses had not given evidence and the evidence did not match the pleaded ground. The Supreme Court took the view in that matter that "Whether this (the Petitioner’s evidence) should be believed is a matter that can be decided at the end of the trial. The trial judge should have allowed the trial to continue and ask the First Respondent if he wishes to call any evidence." Benny Diau v Mathew Gubag (2004) SC775

13. Speaking of general principle the Court said:

"We accept the proposition that the National Court has jurisdiction to stop an election petition trial in an appropriate case, after the petitioner has closed its case, if the petitioner fails to prove an essential ground for invalidating the election result (Ben Micah v Ian Ling-Stucky (Unreported Judgment of the National Court, N1790) and Desmond Baira v Kilroy Genia (Unreported Judgment of the Supreme court, SC579)."

14. Although the Court made that statement it held as I have set out at [12]. The facts in Benny Diau v Mathew Gubag were that there was an allegation of bribery on a certain date and there was evidence given of bribery on the day subsequent to the pleaded day. The judge struck out the ground on the basis of the variance between the dates of the pleaded bribery and the evidence. The Supreme Court considered that the trial should have been completed on this issue, the evidence should have been weighed at the close of all of the evidence and the trial not stopped after the Petitioner’s evidence. 

15. It is notable in that case that the trial judge’s only reason for dismissing the ground was the discrepancy between the evidence and the pleading. He made no observation about the weight of the evidence. Further, although the names of the persons involved in an allegation of bribery is a material fact: Application for Review; Robert Kopoal v Philemon Embel (2003) SC727 Sawong, Kirriwom & Batari JJ and an allegation of the purpose for which the money was paid is an essential element of the crime of bribery and a material fact to be pleaded and proven: Raymond Agonia v Albert Karo & Anor (1992) N1115 Sheehan J .; in a criminal trial the time of the offence would not be a material fact: Criminal Code s.534(1)(c). And an allegation of bribery is an allegation of a criminal act. I deduce that the Supreme Court, although not specifically saying so, took the view that the time of the offence was not necessarily an essential element of pleading the allegation of bribery in an election petition.

16. The other consideration is that bribery has a special place under the Organic Law. It is one of the grounds contained in s.215 (1) of the Organic Law, which, if proven against a successful candidate must void the election, even if that relief has not been sought by the Petitioner: Korak Yasona v Castan Maibawa (1998) SC553 Amet CJ, Salika & Sakora disapproving Application by William Ekip Wii; SC45 of 1994; Application for Judicial Review (unreported judgment of the Supreme Court dated 26th July 1994). Consequently if there was evidence sufficient to prove the ground, even if imperfectly pleaded as to time, the Court was bound to consider it. 

17. I have therefore come to the conclusion that the decision in Benny Diau v Mathew Gubag has not laid down any proposition of general application contrary to the general proposition approved by that Court as set out at [13]. The result in Diau v Gubag was affected by the fact that the ground involved was bribery and the discrepancy between the pleading and the evidence was not in relation to a material fact of that allegation, hence the Supreme Court concluded that the issue should be tried.

18. I have concluded that it is open for a judge on his own motion to raise for argument by the parties, prior to the close of the evidence, the issue of whether an essential ground or grounds for voiding the election have been proven on the evidence adduced by the petitioner, and the consequences which may flow from a finding that the ground or grounds are not proven.

19. My other reasons for making the direction for the issues to be argued are secondly, I wanted to ensure counsel had full opportunity to make submissions on behalf of the parties and the Court was fully assisted before I made a ruling.

20. Thirdly, Counsel for the Electoral Commission had earlier submitted that the determination of the issue may determine the whole petition. If that was the case it would be a waste of resources for the Court and all the parties to press on with the evidence for what could be at least another month of sittings to hear the 23 witnesses for the Second Respondent when nothing might be achieved by it.

21. I have given anxious consideration to the fact that these issues are being argued at the close of the First Respondent’s case, and not at the close of the Petitioner’s case, and without reference to the First Respondent’s evidence. However I have decided that approach does not present a problem to a judge sitting without a jury as a judge is trained to put out of his mind matters irrelevant to the issue in hand. 

22. I have been particularly concerned that the parties have invested enormous sums of time and money into these proceedings over a period of 6 months and I should not want anything done on my part to cause that investment to be thrown away by the necessity for the Supreme Court to order a new trial. However I have concluded that should I be wrong in proceeding to hear and determine these issues now there would be no impediment to the Supreme Court ordering that the trial continue before me, as it did in Benny Diau v Mathew Gubag, avoiding the necessity for a new trial.

If the Evidence Does Not Prove the Ground Can the Petitioner Still Succeed on the Petition?

23. In the ruling on the viability of the petition given 28th April 2008 I found that the remaining grounds of the petition contained allegations affecting 20,618 votes. If it was held that ground E1 regarding the 8 boxes and 5223 votes cannot succeed, that number must be deducted from the total number of votes affected by the grounds in the Petition, leaving a balance of 15, 395 votes affected by the grounds. Also to be taken into account is that no evidence was called in respect of allegations concerning Taitenges polling place involving 396 votes. Those votes should also be deducted from those affected, leaving 14, 999 affected by the allegations in the Petition.

24. It has long been the law in Papua New Guinea, where the petition grounds are relied upon to affect certain ballot papers or ballot boxes, that the issue is always, do the proven grounds of the petition in respect of official irregularities affect sufficient numbers of ballot papers so as to actually "affect the results of the election"?, s218(1) of the Organic Law: Re Manus Provincial Parliamentary Election; Arnold Marsipal v Michael Pondros [1977] PNGLR 354; Louis Ambane v Electoral Commission & Ors (1998) SC559. Or where illegal practice committed by a person other than the candidate is proven, "the Court is satisfied that the result of the election was likely to be affected": s215 (3) of the Organic Law. 

25. If the number of votes affected does not exceed the winning margin the results of the election are not affected or likely to be affected: Re Moresby Northwest Parliamentary Election: Gavera Rea v Mahuru Rarua Rarua [1977] PNGLR 338. Only if the number of ballot papers affected exceeds the winning margin, could the court be satisfied that the loss of the ballot papers could have affected the result of the election. That was the approach taken by the trial judge in Dick Mune v Paul Poto (No.2) [1997] PNGLR 356 and the Supreme Court did not comment adversely on that approach. In the case of Baki Reipa v Yuntivi Bao [1999] PNGLR 232 Woods, Los and Salika JJ, the Supreme Court said:

"However as soon a the number of disputed or lost votes exceed the winning margin then as the court cannot make speculations on the basis of the number of candidates and the percentage of total votes to each candidate but is always faced with the possibility that if the votes had gone a certain way then the result would have been affected then the criteria is satisfied."

26. The Limited Preferential Voting system does not change that position on a seat declared on the first preferences, except to this extent, not only must the successful candidate retain a greater number of votes received over the candidate receiving the next largest number of votes, but he must also receive and retain an absolute majority, at least 50% plus 1, of the valid votes cast: Organic Law Section 168(1) (b). The provision reads:

"the candidate who has received the largest number of first preference votes, if that number be an absolute majority of votes, be elected;"

27. Mr. William for the Second Respondent did not advert to this requirement in his submissions and I consider that does not reflect well on counsel. Counsel for a Constitutional Office should not only make those submissions he considers will advance his clients case, he should also draw to the Court’s attention all of the relevant law which his client is constitutionally mandated to administer. Not to do so may lead the Court into error at considerable cost to the parties.

28. It was submitted for Mr Manase that the total number of affected ballots should also be deducted from the votes received by the winning candidate to ascertain if he retains an absolute majority. 

29. As approximately 10,000 votes of the total of 31,628 were received by other candidates, Counsel for Mr Polye submitted it is not possible simply to deduct the number of votes affected by the Petition from the winning candidate’s result to arrive at the number of votes he would still retain. He submitted that the exercise has to be undertaken of going through the Form 66, which records how many votes each candidate received from each polling station, to see how many votes the successful candidate would not have received if the affected boxes were not counted. 

30. The fallacy in these arguments is that if the boxes in dispute are not to be counted, all of the votes in those boxes are affected and not to be counted. All of those votes might have been cast differently if the grounds of the Petition are proven. So not only might the successful candidate not have received the votes he did, all of the other candidates might also not have received the votes they did receive. All of those votes, if properly cast could have gone to different candidates than those that actually received them. One cannot know. The Court cannot speculate. Therefore simply deducting the votes from the candidates does not demonstrate whether or not the result would be affected. It also has to be taken into account that "if those votes had gone a certain way then the results would have been affected…" as mentioned in Reipa v Yuntivi Bao [1999] PNGLR 232 and referred to at [25].

31. Mr. Polye’s counsel has submitted various methods of calculation or treatment of the votes affected by the allegedly destroyed ballot boxes, without reference to authority. In each calculation the number of lost ballot papers has been added to the total number of votes cast, which has the effect of increasing number of votes required for an absolute majority and deductions have been made from varying totals (including one greater than the total number of votes cast) with the result on those calculations that Mr Polye retains a slim absolute majority. There is no profit in examining the error of these calculations in detail. Suffice to say that all of those sorts of calculations have no validity. There can be no valid exercise of adding or subtracting affected votes from the results. The only test is to compare the number of disputed votes with the number of the winning margin. If the number of disputed votes exceeds the winning margin, if the grounds of dispute are proven, the result of the election could have been affected. In ruling otherwise in my ruling of 28th April 2008 on the viability of the Petition, at paragraph [24] I fell into error.

32. In paragraph [25] above and the foregoing paragraph I mention the "winning margin", which in pre LPV times simply meant the number of votes by which the number of votes received by the winning candidate exceeded the number of votes received by the next highest scoring candidate. But as I explain at [26] that is not the case with the LPV system. The winning margin now becomes the number of votes in excess of an absolute majority, received by the successful candidate in an election declared on the first preferences. We are not dealing here with the more difficult concepts which occur when the counting of the votes proceeds to distribution of preferences as occurred in Paias Wingto v Kala Rawali (2008) N3285 and considered in Tom Olga v Paias Wingti (2008) SC938 and in my opinion the submissions for Mr Manase on those cases are confined to situations where the result is declared on the second or third preferences. 

33. The proper course in this case, following the case law authority and s168 of the Organic Law is simply to compare the number of votes affected by the allegations in the Petition with the relevant winning margin. In this case the total number of valid votes cast was 31, 592 (from the Form 66) giving an absolute majority of 15, 799. Mr. Polye received a total of 21, 820 votes, therefore the relevant winning margin, the number of votes the successful candidate received above the absolute majority is 6023. Consequently the number of votes still in dispute, 14,999, assuming ground E1 not proven, substantially exceeds the winning margin. Therefore there are still sufficient grounds in the Petition for the Petitioner to still succeed in establishing that Mr Polye should not have been declared the successful candidate on the first preferences even if ground E1 is not proven.

Is Mr Manase’s evidence capable of proving the pleaded ground?

34. As I have come to the conclusion, reasons for which are set out above, that even if I found that the E1 ground of the petition was not proven, the Petition would still be viable in the sense of still having sufficient allegations affecting sufficient votes to affect the result of the election, I do not consider that I should rule on the ground before the close of the evidence, as the case will not be advanced by doing so. It is best not to decide in the circumstances but to leave that decision to the close of the evidence. The case does not fall into the category of cases referred to at [10] and [12] which would be stopped by the factual finding resulting in the dismissal of a ground or grounds, which then results in the Petition being stopped because it is no longer capable of succeeding. There is no point in ruling on the ground because it will have no immediate effect on the continuation of the trial.

For those reasons I direct that the trial of the Petition proceed on a date to be fixed.

_______________________________
Steeles Lawyers: Lawyers for the Petitioner
Paulus M. Dowa Lawyers: Lawyers for the First Respondent
Nonggorr and Associates: Lawyers for the Second and Third Respondent's