N5354
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA
Petitioner

V

ANTON YAGAMA
First Respondent

STEVEN BIKO, RETURNING OFFICER
Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2013: 3, 5 September

ELECTIONS – recount of votes – whether National Court obliged to declare result of election in accordance with Court-ordered recount without further inquiry into whether the recount was affected by errors or omissions – whether a party has right to challenge result of recount – whether errors were made in conduct of recount – whether errors made warranted disturbing the result of the recount – circumstantial evidence.

After hearing an election petition the National Court ordered that there be a recount of ballot papers for an electorate and that the result of the recount be presented to it. A recount was conducted. The result showed that the first respondent, who was the successful candidate in the original count, again had the highest number of votes. The petitioner filed a notice of motion, seeking orders that the final result of the recount be discarded and that he be declared duly elected. He argued that the distribution of preferences at the 37th exclusion was tainted in that the ballot papers had been tampered with and that this corrupted the result in favour of the first respondent as evidenced by (a) a comparison of distribution of preferences at the original count with distribution of preferences at the recount, which revealed a significant reduction in the number of votes allocated to him and a significant increase in the number of votes allocated to the first respondent; (b) the ballot boxes being left with counting officials and police personnel in the counting centre for a period of four hours without the presence of scrutineers; (c) a large number of ballot paper butts being found lying on the ground in a public place by members of the public during the period that the ballot boxes were left without scrutiny and (d) a large number of first-preference votes – 2,005 in total – being at the start of the recount discovered in a box marked for exhausted ballot papers. The first respondent filed a competing notice of motion seeking orders that the Court accept the result of the recount and that he be declared duly elected. He argued (a) that the Court had no power to reject the result of the recount and the petitioner could not challenge the result as he did not apply for leave to review the order of the National Court that there be a recount; (b) the petitioner's motion was an abuse of process and (c) if the National Court had power to reject the result it should still accept the result as no errors had been proven to have occurred in the conduct of the recount that warrant a different result. The two motions were heard together and gave rise to these issues: (1) was the Court obliged to accept the result of the recount? (2) was there an abuse of process by the petitioner? (3) who bears the onus of proof? (4) has the petitioner proved good grounds to reject the result? (5) has the first respondent proven good grounds for acceptance of the result? (6) what orders should the Court make?

Held:

(1)	The Court is not bound to accept without further inquiry the result of a recount. Any party to a petition may move the Court for acceptance or rejection of the result of a recount and the Court may conduct a hearing and hear evidence to determine whether the result of the recount should be accepted or rejected.

(2)	There was no abuse of process by the petitioner. The fact that he sought an order that was unusual and novel in nature and probably unprecedented did not mean that the means by which he sought that relief was an abuse of process.

(3)	In accordance with the legal principle that 'he who asserts must prove', the party that moves the Court for rejection of the result bears the onus of proving good grounds for rejection and the party that moves the Court for acceptance of the result bears the onus of proving good grounds for acceptance.

(4)	The petitioner failed to prove good grounds for rejection of the result, as (a) the fact that there was a significant difference in the distribution of preferences at the 37th exclusion was inconsequential as the distribution at the original count was inherently unreliable and was therefore not a proper basis for comparison; (b) the returning officer gave a satisfactory explanation for the ballot boxes being left without the presence of scrutineers and it was impossible for the ballot boxes to have been tampered with, thus the distribution of preferences was not tainted and did not impair the integrity of the recount; (c) evidence of ballot paper butts being found in a public place did not result in the conclusion that ballot boxes or papers had been tampered with and (d) there was nothing irregular or untoward in finding 2005 first-preference votes for the petitioner in a box in which there were exhausted ballot papers.

(5)	The respondents established good grounds for acceptance of the result, in particular by tendering an affidavit of the returning officer which provided a detailed account of the conduct of the recount and a satisfactory explanation of the concerns of the parties as to the integrity of the recount.

(6)	All relief sought by the petitioner was refused. The primary relief sought by the first respondent was granted and accordingly it was declared that the result of the recount was accepted and subject to any other order of the Court that the first respondent was the duly elected member for the electorate.

Cases cited

The following cases are cited in the judgment:

Galem Falide v Registrar of Titles (2012) N4775
Kuli v Apamia (2013) PGNC 104, (2013) N5275
SCR Nos 4 & 5 of 2009 Re Trawen v Wingti [2009] PGSC 54, (2009) SC1003
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No 4 of 1980 [1982] PNGLR 65
Wingti v Rawali, Electoral Commission and Olga (2008) N3286
Wingti v Rawali, Electoral Commission and Olga (2009) N3569
Wingti v Rawali, Electoral Commission and Olga (2010) N3982
Yama v Yagama (2013) N5222

NOTICES OF MOTION

This was a determination of two motions concerning the result of a recount of votes in an election.

Counsel

N Kiuk, for the petitioner
T Boboro, for the first respondent
J S Umbu, for the second, third & fourth respondents

5th September, 2013 

1. CANNINGS J: After hearing an election petition concerning the result of the election for the seat of Usino-Bundi Open in the 2012 general election the National Court ordered that there be a recount of ballot papers for the electorate and that the result of the recount be presented to it. The recount commenced on 25 July 2013 and concluded on 10 August 2013. The result was presented to the Court on 15 August 2013, showing:

•	the first respondent Anton Yagama had the highest number of votes: 7,038 votes;
•	the runner-up, the petitioner Peter Charles Yama, had 6,408 votes;
•	the difference was 630 votes;
•	the absolute majority was 6,724.

2. This is the Court's ruling on two motions that have been filed concerning the result of the recount.

THE PETITIONER'S MOTION

3. The petitioner filed a notice of motion, seeking orders that the final result of the recount be discarded and that he be declared duly elected. Specifically the orders sought are:

1	The final results of the Court ordered recount announced by the returning officer on 10 August 2013 relating to the placing of the first respondent and the petitioner shall be determined whilst considering the Walium count [ie the original count, conducted at Walium].

2	The final results of the Court ordered recount announced by the returning officer on 10 August 2013 and the results of the recount emanating from elimination 37 be discarded and consideration be given to the record of the results on the 37th elimination in the Walium count.

3	An order declaring the petitioner as the duly elected member for Usino-Bundi electorate in Madang Province.

4. He argued that the distribution of preferences at the 37th exclusion was tainted in that the ballot papers had been tampered with and that this corrupted the result in favour of the first respondent as evidenced by:

(a)	a comparison of distribution of preferences at the original count with distribution of preferences at the recount, which revealed a significant reduction in the number of votes allocated to him and a significant increase in the number of votes allocated to the first respondent;

(b)	the ballot boxes being left with counting officials and police personnel in the counting centre for a period of four hours without the presence of scrutineers;

(c)	a large number of ballot paper butts being found lying on the ground in a public place by members of the public during the period that the ballot boxes were left without scrutiny; and

(d)	a large number of first-preference votes – 2005 in total – being at the start of the recount discovered in a box marked for exhausted ballot papers.

THE FIRST RESPONDENT'S MOTION

5. The first respondent, supported by the second, third and fourth respondents, filed a notice of motion seeking orders that the Court accept the result of the recount and that he be declared duly elected. He argued:

(a)	that the Court had no power to reject the result of the recount and the petitioner could not challenge the result as he did not apply for leave to review the order of the National Court that there be a recount;

(b)	the petitioner's motion was an abuse of process;

(c)	if the National Court had power to reject the result it should still accept the result as no errors had been proven to have occurred in the conduct of the recount that warrant a different result.

ISSUES

6. The two motions were heard together and gave rise to these issues:

(1)	is the court obliged to accept the result of the recount?

(2)	was there an abuse of process by the petitioner?

(3)	who bears the onus of proof?

(4)	has the petitioner proved good grounds to reject the result?

(5)	has the first respondent proven good grounds for acceptance of the result?

(6)	what orders should the Court make?

1	IS THE COURT OBLIGED TO ACCEPT THE RESULT OF THE RECOUNT?

7. Mr Boboro for the first respondent submitted that the Court has no power to reject the result of the recount. The Court made the order for a recount in accordance with Section 212(1) (powers of court) of the Organic Law on National and Local-level Government Elections ('the Organic Law'), in particular Section 212(1)(d), which states:

In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—

(a)	adjourn; and
(b)	compel the attendance of witnesses and the production of documents; and
(c)	grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)	order a re-count of ballot-papers in an electorate; and
(e)	examine witnesses on oath; and
(f)	declare that a person who was returned as elected was not duly elected; and
(g)	declare a candidate duly elected who was not returned as elected; and
(h)	declare an election absolutely void; and
(i)	dismiss or uphold a petition in whole or in part; and
(j)	award costs; and
(k)	punish contempt of its authority by fine or imprisonment. [Emphasis added]

8. The argument is that the Organic Law, though it allows the Court to order a recount, says nothing about allowing challenges to the result of a recount. The Court's duty, it is argued, is simply to endorse the result of the recount. I reject this argument for three reasons. First it must be reasonably inferred that by conferring on the Court the power to order a recount the Organic Law is by implication vesting the Court with power to hear challenges to the result. If this were not the case the role of the Court would be reduced to that of a rubber stamp. It would allow errors or omissions or illegal practices to be committed while conducting a recount that would go unchecked. A recount of dubious integrity would be permitted to be given effect without challenge. This would be an absurd spectre and all laws, especially Constitutional Laws, should be interpreted in a way as to avoid the prospect of absurd consequences.

9. Secondly the powers prescribed by Section 212(1) are not an exhaustive set of powers. The sub-section introduces the list of powers by the inclusive words "amongst other things", so clearly the powers expressly conferred by paragraphs (a) to (k) are not intended to be exhaustive.

10. Thirdly, the Supreme Court addressed the issue of the propriety of allowing challenges to the result of a Court-ordered recount in SCR Nos 4 & 5 of 2009 Re Trawen v Wingti [2009] PGSC 54, (2009) SC1003. The Court (Sakora J, Kirriwom J, Mogish J) held that the National Court had properly conducted a hearing into alleged errors and omissions committed in the course of a Court-ordered recount and properly concluded that significant errors had been made. The Supreme Court found error, however, in the exercise by the National Court of its discretion as to remedies. The Supreme Court ruled that it was wrong to have declared the election result to be absolutely void (the effect of which was to set in train a by-election) and proceeded to order another recount; and also ruled that there was no limit to the number of recounts that could be ordered. (See generally Wingti v Rawali, Electoral Commission and Olga (2008) N3286, Wingti v Rawali, Electoral Commission and Olga (2009) N3569 and Wingti v Rawali, Electoral Commission and Olga (2010) N3982.)

11. This Court is therefore not bound to accept without further inquiry the result of the recount that has been presented to it. Any party to a petition may move the Court for acceptance or rejection of the result of a recount and the Court may conduct a hearing and hear evidence to determine whether the result of the recount should be accepted or rejected.

2	WAS THERE AN ABUSE OF PROCESS BY THE PETITIONER?

12. Mr Boboro submitted that, because of the nature of the orders sought by the petitioner, his motion was misconceived, misguided, legally flawed, frivolous, vexatious and an abuse of the processes of the Court and that it should be summarily dismissed. It is true that the petitioner is seeking orders that are unusual and novel in nature and probably unprecedented: he wants the Court to find error in the 'result' of the 37th exclusion, when the preference votes of the 37th candidate (of the total of 41 candidates) was excluded, and to discard that 'result' and replace it with the allocation of preferences that arose from the 37th exclusion in the original count which was conducted at Walium. If this were done it would have the effect of bringing his total number of votes above that of the first respondent and therefore the petitioner seeks an order that he be declared duly elected.

13. I reject the submissions of Mr Boboro and find no abuse of process by the petitioner. The fact that the petitioner seeks an order that is unusual and novel in nature and probably unprecedented does not mean that the means by which he seeks that relief is an abuse of process. The question of whether the Court should make the sort of order that the petitioner is seeking can only properly be addressed after determining the question of whether the result of the recount should be rejected.

3	WHO BEARS THE ONUS OF PROOF?

14. In accordance with the legal principle that 'he who asserts must prove', the party that moves the Court for rejection of the result bears the onus of proving good grounds for rejection and the party that moves the Court for acceptance of the result bears the onus of proving good grounds for acceptance (Supreme Court Reference No 4 of 1980 [1982] PNGLR 65, Shaw v Commonwealth of Australia [1963] PNGLR 119, Galem Falide v Registrar of Titles (2012) N4775).

4 	HAS THE PETITIONER PROVED GOOD GROUNDS TO REJECT THE RESULT?

15. The principal argument underpinning the petitioner's motion is that the distribution of preferences at the 37th exclusion of the recount was tainted. Mr Kiuk for the petitioner submitted that the ballot papers in the ballot box numbered "48" containing the distribution of preferences for the 37th candidate to be excluded from the count – James Yapoi – were tampered with and that this corrupted the result in favour of the first respondent. Mr Kiuk has adduced no direct evidence of tampering but relies on circumstantial evidence and submits that the only reasonable inference that can be drawn from it is that the ballot papers were tampered with. The circumstantial evidence and the arguments that have been presented and my assessment of them follow.

(a)	Comparison of distribution of preferences

16. A comparison of distribution of preferences at the original count and distribution of preferences at the recount reveals a significant reduction in the number of votes allocated to the petitioner and a significant increase in the number of votes allocated to the first respondent. There is undisputed evidence that upon the 37th exclusion in the original count:

•	the petitioner was allocated 926 votes;
•	the first respondent was allocated 1,075 votes.

17. Upon the 37th exclusion in the recount:

•	the petitioner was allocated 564 votes: a decrease of 362;
•	the first respondent was allocated 1,363 votes: an increase of 288.

18. Mr Kiuk submits that the first respondent was able to surge ahead at the recount because of this suspicious turnaround in the allocation of votes in the 37th exclusion, that it is incredible and unbelievable that there would be such a big difference and that therefore the result of the 37th exclusion should be discarded.

19. As I indicated during the course of submissions there is a logical flaw in this argument. The fact that there was a significant difference in the first respondent's allocation of preferences does not force the conclusion that an error was made in the recount. The original count is not a proper or reliable basis of comparison. It is because there was serious doubt as to the integrity of the original count that the Court, in these proceedings, ordered the recount. The Court found that a series of errors was made in the final stages of the scrutiny extending through to the declaration of the successful candidate and the return of the writ. The errors called into question the entire scrutiny (Yama v Yagama (2013) N5222). 

20. It is also significant that in another election petition case involving a challenge to the election of the first respondent – EP No 57 of 2012 – the National Court (Justice Makail presiding) found, as was found in the present case, significant errors and omissions in the conduct of the original count. His Honour found that serious errors and omissions were committed by counting officials during elimination No 37 and elimination No 38, that there was a significant misallocation of votes, that this happened because the counting officials were during these stages encountering considerable threats and intimidation and that it was likely that there was a deliberate misallocation of votes by certain counting officials (Kuli v Apamia (2013) PGNC 104, (2013) N5275). I take judicial notice of his Honour's findings, which reinforce my finding as to the unreliability of the original count.

(b)	Ballot boxes left for long period without scrutiny

21. There is uncontested evidence that on the morning of the final day of the recount, Saturday 10 August 2013, with the allocation of preferences of the 37th exclusion about to start, and after the ballot boxes had been brought into the counting centre and with counting officials and police personnel in the counting centre, the scrutineers for the remaining candidates were locked out for a period of four hours. Mr Kiuk submits that the reason for the lockout has never been properly explained, that the circumstances are suspicious and that the long period meant that there was ample opportunity for the ballot papers to have been tampered with. He submitted that as a matter of law there was no scrutiny for this lengthy period, and therefore the allocation of preferences at the 37th exclusion should be discarded.

22. I reject these submissions for three reasons. First, the returning officer for the recount Reitama Taravaru has given a satisfactory explanation of the lockout in an affidavit admitted into evidence in these proceedings. The counting officials had a grievance with the Electoral Commission over their allowances. Mr Taravaru needed time to meet with them and sort out their grievances. It was an unexpected turn of events which he had to deal with as a matter of urgency.

23. Secondly Mr Taravaru has given evidence – which I accept – that the ballot boxes that were taken into the counting centre were sealed with plastic seal tags, with serial numbers attached. The tags had been affixed the evening before (Friday 9 August 2013) in the presence of scrutineers. The plastic seal tags are designed in such a way that when they are broken or cut they cannot be used again. When counting eventually resumed at 1.30 pm on Saturday 10 August 2013 all the serial numbers of the plastic seal tags affixed to the five ballot boxes and the exhausted box the previous day were read out to the scrutineers and the scrutineers confirmed those serial numbers. Three candidates were then eliminated: James Yapoi (exclusion No 37), Kansol Kaniku (exclusion 38) and Samson Kuli (exclusion No 39). The recount was concluded after exclusion No 39 when the first respondent reached the absolute majority. Mr Taravaru's evidence was not effectively challenged by the petitioner. Mr Umbu, who appeared for the second, third and fourth respondents, vividly and effectively demonstrated in the courtroom the effect of the evidence about the plastic seals not being able to be reused once broken. I find the evidence reliable and credible.

24. Thirdly I find that it was physically impossible for the ballot boxes to have been tampered with. There was simply no opportunity for this to have happened. Therefore the distribution of preferences arising from the 37th exclusion was not tainted and did not impair the integrity of the recount.

(c)	Large number of ballot paper butts found elsewhere

25. The petitioner adduced evidence that on the morning of 10 August 2013 a number of ballot paper-butts were found in an envelope lying on kunai grass in Madang town near the Electoral Commission office.

26. This evidence was uncontested. However, while it does not create a good impression of the professionalism of the Electoral Commission, it is significant that these were not ballot papers, but butts, that were found in a public place. This evidence does not result in the conclusion that ballot boxes or papers had been tampered with.

(d)	First-preference votes discovered in box for exhausted ballot papers

27. The petitioner adduced evidence that a large number of first-preference votes – 2,005 in total – were at the start of the recount discovered in a box marked for exhausted ballot papers.

28. This evidence was uncontested. However, it does not give rise to any cause for concern. I uphold the submission of Mr Boboro on this issue. A recount is conducted in a completely different way to an original count. During an original count, ballot boxes come in from the various polling places and the ballot papers in them are counted. By contrast in a recount ballot papers are put back into various boxes not according to polling places but according to candidates. It was not unusual or surprising to find many votes of a particular candidate – in this case the petitioner – in one ballot box that was marked "exhausted".

I find that the petitioner has failed to prove good grounds for rejection of the result.

5 	HAVE THE RESPONDENTS PROVEN GOOD GROUNDS TO ACCEPT THE RESULT?

29. Yes. Good grounds have been provided by tendering an affidavit of the returning officer which provides a detailed account of the conduct of the recount and a satisfactory explanation of the concerns of the petitioner as to the integrity of the recount.

6	WHAT ORDERS SHOULD THE COURT MAKE?

30. All relief sought by the petitioner must be refused. The primary relief sought by the first respondent will be granted: it will be declared that the result of the recount is accepted and subject to any other order of the Court (for example an order might be made in EP No 57 of 2013) that the first respondent is the duly elected member for the electorate. These orders will be made under the general provisions of Section 212(1) of the Organic Law. The first respondent sought orders for costs against the Electoral Commission but I do not think that is appropriate as the first respondent's motion has been supported by the second, third and fourth respondents. It is also not appropriate to award costs against the petitioner. His motion was properly before the Court. I will order that the parties bear their own costs.

ORDER

(1)	All relief sought in the petitioner's notice of motion filed 14 August 2013 is refused.

(2)	The relief sought in paragraphs 2 and 3 of the first respondent's notice of motion filed 14 August 2013 is granted and accordingly it is declared that: 

(a)	the result of the recount described in the affidavit of the Returning Officer for the recount, Reitama Taravaru, filed 15 August 2013, is accepted by the Court; and 

(b)	subject to any other order of the Court the first respondent is the duly elected member for Usino-Bundi Open.

(3)	Other relief sought in the first respondent's notice of motion filed 14 August 2013 is refused.

(4)	The parties will bear their own costs.
 
Judgment accordingly.
__________________________________________________

Nikiuma Lawyers: Lawyers for the Petitioner
Kuman Lawyers: Lawyers for the First Respondent 
Harvey Nii Lawyers: Lawyers for the Second, Third & Fourth Respondents