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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SC REVIEW (EP) NO. 12 OF 2024 (IECMS)
APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION
AND IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
BETWEEN
MUGUWA DILU
Applicant
AND
WILLIAM GOGL ONGLO
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
WAIGANI: DAVID J, MAKAIL J, KARIKO J
1 MAY 2025; 17 MARCH 2026
SUPREME COURT REVIEW – ELECTION PETITION – Review of National Court decision – Order for recount of votes – Order declaring election of successful candidate void – Byelection – Use of biometric voting – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Elections – Sections 149, 150, 151, 212, 215, 217 & 218
EVIDENCE – Use of video evidence – Video evidence in form of CCTV footage – Objection to admissibility of CCTV footage – Admissibility of CCTV footage – Accuracy and reliability of CCTV footage – Electronic evidence – Electronic records – Evidence Act – Sections 65 & 66
Facts
This is an application to review the decision of the National Court which among other orders, upheld a petition, declared the election of the applicant null and void and ordered a recount of votes pursuant to Section 155(2)(b) of the Constitution (“Review Application”). The applicant relied on the grounds that there was no finding of the number of ballot papers placed in the wrong trays of candidates at the scrutiny of votes were more than the winning margin and the result of the election was affected under Section 218 of the Organic Law on National and Local-level Government Elections (“Organic Law”), that the finding of illegal practices at counting of votes under Section 215 of the Organic Law is unsupported and/or contrary to the pleadings in the petition because they were based on errors or omissions at counting of votes under Section 218 of the Organic Law, that the relief granted by the National Court in the form of declaration of election of first respondent’s void and for the second respondent to consider use of electronic and voter identification system in the recount of votes did not form part of the relief pleaded and prayed for in the prayer for relief in the petition, that the order for declaration of election of first respondent void is contrary to Section 215 of the Organic Law, and that the admission of the CCTV footage in evidence for the first respondent despite objection on the basis of no source of its origin been disclosed.
Held:
(a) declare that a person who was returned as elected was not duly elected under Section 212(1)(f) of the Organic Law.
(b) declare a candidate duly elected who was not returned as elected under Section 212(1)(g) of the Organic Law.
(c) declare an election absolutely void under Section 212(1)(h) of the Organic Law.
1. establish allegations of illegal practices at counting and
2. establish as to who committed the illegal practices.
Cases cited
William Gogl Onglo v Muguwa Dilu & Electoral Commission (2023) N10595
Muguwa Dilu v William Gogl Onglo & Electoral Commission (2024) SC2601
Philip Undialu v Francis Potape & Electoral Commission (2020) SC1981
Lucas Dekena v Nick Kopia Kuman & Electoral Commission (2013) SC1272
Mathias Karani v Yawa Silupa (2003) N2385
Andrew Trawen v Steven Pirika Kama; Michael Laimo v Steven Pirika Kama (2009) SC1037
Toap Hoap v Peter Welawe Iwei (2008) N3420
Kuli v Apamia (2013) N5272
Yagama v Yama (2013) N5222
Michael Korry v Mogerema Sigo Wei & Electoral Commission (2015) N6050
Embel v Kapaol (2003) N2460
Anton Yagama v Peter Charles Yama & Electoral Commission (2013) SC1244
Steven Pirika Kama v John Itanu & Electoral Commission (2008) N3261
William Powi v Bernard Kaku & Electoral Commission (2022) SC2290
Riddhi Damodar v The State (2023) FJHC 275
The State v Sunia Roraqio (2022) FJHC 200
Dodson and Williams [1984] 79 Cr App R 220
Counsel
Mr I Molloy with Mr J Wohuinangu, for applicant
Mr E Isaac, for first respondent
Mr R William, for second respondent
JUDGMENT
1. BY THE COURT: This is an application to review the decision of the National Court of 6th June 2024 which among other orders, upheld the petition, declared the election of the applicant null and void and ordered a recount of votes pursuant to Section 155(2)(b) of the Constitution (“Review Application”).
2. The applicant seeks the following orders:
2.1. the Review Application be upheld.
2.2. the decision of the National Court of 6th June 2024 upholding the petition in EP No 76 of 2022: William Gogl Onglo v Muguwa Dilu & Electoral Commission be set aside or quashed.
2.3. the petition in EP No 76 of 2022: William Gogl Onglo v Muguwa Dilu & Electoral Commission be dismissed.
2.4. the first respondent shall pay the applicant’s costs of the Review Application and the National Court proceedings.
BACKGROUND FACTS
3. The applicant and first respondent were candidates who contested the seat for Kundiawa-Gembogl Open electorate in the 2022 General elections. On 6th August 2022 the applicant was declared the winner and the first respondent was runner-up. The applicant scored 25,290 votes while the first respondent scored 21,158 votes. The applicant won by 4,132 votes. The winning margin was 3,569 votes.
4. On 14th September 2022 the first respondent filed a petition disputing the election of the applicant. The petition was subsequently amended and grounded on the following allegations at Part 2, paragraphs 67 to 85 against the second respondent by its officials:
4.1. failed to allow only those counting officials duly appointed to enter the counting room thereby breaching Section 150 of the Organic Law on National and Local-level Government Elections (“Organic Law”).
4.2. wrongly allowed more person than the number who were duly appointed or allowed to enter the counting room.
4.3. by reason of the presence of these persons, others were prevented or obstructed from viewing the scrutiny.
4.4. by doing so, wrongfully allowed the first respondent’s supporters and tribesman to enter the counting room.
4.5. failed to properly supervise the counting of votes including preventing ballot papers being wrongly placed or assigned.
4.6. shifted ballot papers (or allowed them to be shifted) from the first respondent’s tray to the applicant’s tray.
4.7. failed to maintain peace and good order in the counting room.
4.8. failed to conduct the scrutiny fairly and honestly.
4.9. failed to suspend the counting to allow necessary arrangements to be made for the first respondent’s scrutineers to be present.
4.10. failed to grant an extension of time for the organisation of the first respondent’s scrutineers.
5. In the amended petition filed on 30th November 2023, the first respondent sought the following relief:
5.1. the petition be upheld.
5.2. pursuant to Section 212(1)(d) of the Organic Law, there shall be a recount of votes cast for the Kundiawa Gembogl Open electorate in the 2022 National General elections.
5.3. the second respondent shall conduct the recount of votes starting from eliminations 19, 20, 21 and 22 of candidates Samuel Kupo, Peter Kama, Stanley Enn Alphonse and Tobias Kulang.
5.4. the second respondent and its officials should come from outside Simbu and shall conduct the recount under the supervision of the Registrar of the National Court.
5.5. the recount shall be conducted in Goroka, Eastern Highlands Province in order to avoid the circumstances encountered in the last election.
5.6. the Registrar of the National Court shall present a report of the recount duly certified by the Returning Officer of the recount back to the National Court within 7 days after the completion of the recount.
5.7. the second respondent shall pay the costs of the petitioner to be taxed, if not agreed.
5.8. the petitioner shall be entitled to the refund of the security deposit of K5,000.00 held in the National Court Trust Account.
6. On 20th November 2023 the National Court heard the first respondent’s objection to competency of the petition. On 22nd November 2023, in a detailed judgment, the National Court dismissed the objection to competency and held that the petition set out
sufficient facts to progress to trial. Subsequently, the applicant filed an application to review the decision of the National Court
to dismiss the objection to competency. On 10th June 2024 the Supreme Court presided by Hartshorn J refused the application for leave: see William Gogl Onglo v Muguwa Dilu & Electoral Commission (2023) N10595 and Muguwa Dilu v William Gogl Onglo & Electoral Commission (2024) SC2601.
7. Meanwhile, following a lengthy trial in Goroka, the National Court took final submissions on 6th December 2023 and reserved its judgment to a later date. On 22nd January 2024 the Court, on its own motion, called up parties and received further submissions on the application of Sections 50 and
57 of the Constitution. On 6th June 2024, the Court handed down its decision by:
7.1. upholding the petition.
7.2. declaring the election of the applicant null and void.
7.3. ordering a recount of votes.
7.4. ordering the second respondent to consider applying the electronic voting system in the record within six months of the order.
7.5. ordering the second respondent to after making a decision on the use of electronic voting system, provide a detailed strategic implementation plan for the system, with key milestones to be achieved with the relevant time frame to commence in September 2024 and ending September 2026.
7.6. ordering that pursuant to the preceding two orders, the second respondent to inform the National Government in a submission to provide funding in the National Budget for 2025 by 5th October 2024.
7.7. ordering the National Government to, after the submission from the second respondent, to give priority to fund the second respondent’s submission and for the second respondent to report back to the National Court at the end of August, September and October 2024 in relation to the compliance of these orders.
7.8. the National reserved the power to call up the matter at any time to check compliance of these orders.
8. The grounds of review are as follows:
8.1. there was no finding of the number of ballot papers placed in the wrong trays of candidates at the scrutiny of votes were more than the winning margin and the result of the election was affected under Section 218 of the Organic Law.
8.2. the finding of illegal practices at counting of votes under Section 215 of the Organic Law is unsupported and/or contrary to the pleadings in the petition because they are based on errors or omissions at counting of votes under Section 218 of the Organic Law.
8.3. relief granted by the National Court in the form of declaration of election of first respondent’s void and recount of votes using electronic and voter identification system did not form part of the relief pleaded and prayed for in the prayer for relief in the petition.
8.4. the order for declaration of election of first respondent void is contrary to Section 215 of the Organic Law.
8.5. the admission of the CCTV footage in evidence for the petitioner despite objection on the basis of no source of its origin been disclosed.
FINDING OF ILLEGAL PRACTICES AT COUNTING
9. We address Grounds 5.1 and 5.2 of the Review Application together because Ground 5.1 alleged that there was no finding that the number of ballot papers placed in the wrong trays of candidates were more than the winning margin and the result of the election was affected. Given the finding that the result of the election was affected Ground 5.2 alleged that the finding of illegal practices at counting of votes under Section 215 of the Organic Law is unsupported and/or contrary to the pleadings in the petition because the allegations are based on errors or omissions at counting of votes under Section 218 of the Organic Law.
10. We have read the submissions of all the parties on this issue and the law in relation to the application of Section 215 and Section 218 of the Organic Law. We note the respondents do not contest the applicant’s submission that there is a difference between allegations constituting illegal practices and allegations constituting errors or omissions because each carry different constituent elements under Section 215 and Section 218 of the Organic Law respectively. Because of this, it is necessary to plead each of the allegations in the petition and prove them. We accept the applicant’s submissions. In Philip Undialu v Francis Potape & Electoral Commission (2020) SC1981 at [28] to [30] the Supreme Court explained the difference between an illegal practice and errors or omissions as follows “An illegal practice is a criminal offence. An error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction: see [52] of the judgment in Phillip Kikala v. Electoral Commission (2013) SC1295.”
11. An illegal practice is provided in Section 215 of the Organic Law as follows:
“215. Voiding election for illegal practices.
(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.
(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—
(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.”
12. While Section 218 of the Organic Law provides for an error or omission in these terms:
“218. Immaterial errors not to vitiate election.
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”
13. As to pleading an illegal practice or errors or omissions, the National Court in Mathias Karani v Yawa Silupa (2003) N2385 stated that:
“For illegal practice, the material facts are:
(a) The illegal practice;
(b) The illegal practice was either committed by the successful candidate or committed by another person but with the successful candidate’s knowledge or authority;
(c) The result is likely to be affected by the illegal practice; and
(d) It would be just that the candidate should be declared not duly elected or the election be declared void.
As to an error or omission, the material facts are:
(a) The error or omission;
(b) The error or omission was committed or made by the electoral officer;
(c) The error or omission did affect the result of the election.”
14. Also, it is useful to note the Supreme Court’s observation in Philip Undialu case at [36] that pleading allegations of illegal practices and errors or omissions in the conduct of elections under Section 215 and Section 218 of the Organic Law respectively can be tricky or blurred because of the subtle differences in the constituent elements of each allegation and the pleadings must make that distinction at the outset.
15. An illegal practice carries with it an element of intent. Thus, it must be pleaded and proved that the act or conduct complained of was done on purpose or with an ulterior motive. In an allegation of illegal practice at counting, it is not uncommon for petitioners to use several words to describe the type of illegal practice in the petition. Some of the common ones are “illegal”, “improper”, “orchestrated”, “fraudulent”, “fraudulently”, “manipulate”, “manipulated”, “manipulation”, “threaten”, “threatened”, “disturbed”, “disturbing”, “failed”, “ignored”, “refused”, “disobeyed”, “wilful”, “wilfully”, “forced to include/exclude ballot papers”, “forced the inclusion/exclusion of ballot papers”, “destroy”, “destroyed”, “sabotage” and “sabotaged.”
16. The use of these words is a choice of words rather than substance. In this instant case because the judgment under challenge is not the ruling on the objections to competency but the final judgment, it is not our intention to revisit the pleadings in the amended petition, but to highlight at pages 4 to 20, four subheadings as follows.
17. The total effect of the allegations under these subheadings is that the second respondent’s officials, the Returning Officer, Assistant Returning Officers and counting officers breached Section 151(b) of the Organic Law. This provision provides that “any scrutineers duly appointed under Section 150 and persons approved by the officer conducting the scrutiny, may be present,” at counting. However, the Returning Officer and Assistant Returning Officers failed to stop scrutineers for candidates, counting officials and other persons except those duly appointed under Section 150 of the Organic Law to be present in the counting centre on 3rd and 4th August 2022 during eliminations 1 to 12. These breaches also occurred on 5th August 2022 during eliminations 20 and 21.
18. As a result, more persons entered the counting centre and “deliberately” blocked or obstructed the view of the scrutiny of votes and counting was compromised. Some of these persons have been named or identified and are either from the applicant’s Narku tribe or supporters. Added to that, Returning Officer and Assistant Returning Officers respectively are related to the applicant as an uncle. Thus, they had a conflict of interests. Further, despite the first respondent complaining to the Returning Officer and Assistant Returning Officers to stop these persons from interrupting the counting, they failed.
19. The second respondent’s officials, the Returning Officer, Assistant Returning Officers and counting officers committed further breaches under Section 149 of the Organic Law. This provision states that “The scrutiny at a counting centre shall be conducted by the Returning Officer or, in the absence of the Returning Officer from that counting centre, by an Assistant Returning Officer.” However, the Returning Officer and Assistant Returning Officers failed to ensure proper supervision of counting officials and the officials misplaced ballot-papers at the counting centre on 5th August 2022 during elimination 21.
20. As a result, on several occasions scrutineers of the first respondent namely Kama Gande and John Kaima observed that live ballot papers for the first respondent weere “deliberately moved” to the applicant’s tray no 24 by a Sandy Michael and another counting official and ballot papers for candidate 29 being Mathew Gaglua were found in the applicant’s tray no 24 by scrutineer John Kaima. In another case, the Returning Officer and Assistant Returning Officers failed to control the counting area to maintain peace and good order and proper supervision during scrutiny. As a result, scrutiny of votes was not conducted in a fair and transparent manner.
21. The final type of breach by the second respondent’s officials, the Returning Officer, Assistant Returning Officer and counting officials is under Section 151(1) of the Organic Law. This provision states that “any scrutineers duly appointed under Section 150 and persons approved by the officer conducting the scrutiny, may be present,” at counting. However, the counting officials failed to ensure that the scrutineers for candidates, counting officials and other persons entering the counting room were those duly appointed under Section 150 of the Organic Law and approved to be present in the counting centre on 6th August 2022 before final elimination.
22. As a result, more scrutineers including Paul Dilu and Siwi Kawage for the applicant and other persons from the applicant’s Enduka and Narku tribes entered the counting centre and started a fight with the scrutineers of the first respondent namely Kama Gande and John Kaima and chased them out of the counting centre and sustained serious bodily injuries from the fight.
23. Following the fight, the first respondent’s scrutineers left the counting centre and requested that counting be suspended to organise replacement scrutineers, but the Returning Officer and Assistant Returning Officers refused. As a result, counting progressed without the presence of the first respondent’s scrutineers. Despite the intervention of the Provincial Police Commander and Election Manager for counting to be suspended, the Returning Officer and Assistant Returning Officers refused and counting progressed.
24. According to the applicant’s submissions:
25. We appreciate the applicant’s submissions. They reinforced our discussion on the application of Section 215 (supra) and Section 218 (supra) and the vast difference between allegations of illegal practices and errors or omissions at [10] to [16] (supra). However, we note that those submissions were made and were overruled by the National Court. Subsequently, the applicant applied for leave to review that decision but was refused by the Supreme Court. We note in Muguwa Dilu v William Gogl Onglo & Electoral Commission (2024) SC2601 at [10] of the ruling, Hartshorn J held that the applicant had established an arguable case in respect of other grounds of review. We gather that his Honour was referring to those grounds at [5(b)] of the ruling as “alternative, misguided, imprecise and contradictory pleadings, failure to state the figures of the ballots alleged to have been placed in wrong boxes and interpretation of s.218 Organic Law.” However, he refused leave because no exceptional circumstances was established.
26. Given this, we uphold the first respondent’s submissions that, to uphold the applicant’s submissions is to allow the applicant to rehash the submissions he made earlier to object to the competency of the petition which will be in breach of the doctrine of res judicata and will constitute an abuse of process. On the other hand, as a matter of law, the applicant is bound by the decision of the National Court: see Lucas Dekena v Nick Kopia Kuman & Electoral Commission (2013) SC1272 and Andrew Trawen v Steven Pirika Kama; Michael Laimo v Steven Pirika Kama (2009) SC1037. We dismiss Ground 5.2.
27. Proceeding on this premise, it will be noted that the National Court relied on Section 217 of the Organic Law to form a view that there were sufficient facts pleaded in the amended petition to show serious breaches of the provisions of the Constitution, Organic Law and Election Regulations. At [76(a)-(g)] of the ruling on the objection to competency, the National Court summarised the allegations as follows:
“76. In summary, the Petitioner alleges that, through collusion and compromises between certain named counting officials led by the Returning Officer (RO), who was related to the 1st Respondent, and the supporters of the 1st Respondent, the scrutiny and counting of votes was seriously compromised. He alleges the counting was conducted without scrutiny or proper scrutiny, which was orchestrated to affect the result of the elections by amongst others:
(a) Removing the Petitioner’s marked ballot papers into the exhausted ballot box or stuffing them into the 1st Respondent’s box to decrease the number of votes the Petitioner received.
(b) Stuffing up the 1st Respondent’s ballot box with ballot papers not marked for him but other candidates and the Petitioner to increase the 1st Respondent’s votes.
(c) To achieve the election outcome and to facilitate the foregoing the Petitioner’ scrutineers were assaulted and removed from the scrutiny and counting of votes resulting in the counting of votes without scrutiny.
(d) attempts to stop counting by the Provincial Election Manager and the Provincial Police Commander and a Reverend were ignored.
(e) The 1st Respondent was allowed more than 1 scrutineer with 7 scrutineers and none for the petitioner at the critical and final elimination.
(f) Though not expressly pleaded it is clear from reading the whole petition that, the number of votes that were deliberately placed in the wrong boxes were more than the winning margin and hence the results were affected.
(g) There is also an allegation of offer of a bribery of K50,000.00 to cause the Petitioner’s scrutineers aimed at getting them out of the counting room and placing the Petitioner’s votes into the 1st Respondent’s box.”
28. The National Court reinforced its view at [130] to [219] of the judgment under challenge. In our view, while it is open to the National Court to rely on Section 217 of the Organic Law to find that there were breaches of various duties by the second respondent’s officials at counting under the Constitution, Organic Law and Election Regulations, it is the relief which the National will grant that is pivotal to the dispute. The type of relief it may grant will depend on a finding if the result is likely to be affected by the illegal practice and it would be just that the candidate should be declared not duly elected or the election be declared void under Section 215 (supra) or if the error or omission did affect the result of the election under Section 218 (supra). Secondly, it is important to determine whether a breach of Section 50 of the Constitution constitutes an illegal practice.
29. In a case where it is proved that the result is likely to be affected by the illegal practice and it would be just that the candidate should be declared not duly elected or the election be declared void under Section 215 (supra) it is open to the National Court to declare that the candidate elected should be declared not duly elected or the election be declared void. In addition, the National Court is conferred powers to order a re-count of ballot papers in the electorate or declare a candidate duly elected who was not returned as elected under Section 212(1)(d) and (g) of the Organic Law.
30. Where it is proved that the error or omission did affect the result of the election under Section 218 (supra), it is open to the National Court to:
(a) order a re-count of ballot-papers in an electorate under Section 212(1)(d) of the Organic Law.
(b) declare that a person who was returned as elected was not duly elected under Section 212(1)(f) of the Organic Law.
(c) declare a candidate duly elected who was not returned as elected under Section 212(1)(g) of the Organic Law.
(d) declare an election absolutely void under Section 212(1)(h) of the Organic Law.
(e) dismiss or uphold a petition in whole or in part under Section 212(1)(i) of the Organic Law.
31. In either case, there must be a finding in relation to the number of votes affected by the illegal practice or errors or omissions, and that the number of votes affected is the difference between the number of votes scored by the winning candidate and the winning margin. In this case, we note at paragraph 233 of the judgment under challenge the National Court’s finding as follows:
“In the present case, more than 4,816 at the lowest level and more than 7,366 at the highest level of votes or ballot papers have not been properly scrutinized. Those number of voters right to have their choice considered and allocated to the candidates of their own choice has been hijacked or misallocated fraudulently.”
32. It is clear the National Court was unable to conclusively find the total number of votes affected by the illegal practices because it said that the number could have been 4,816 votes or 7,366 votes. Nonetheless, it held that because the applicant scored 25,290 votes while the first respondent scored 21,158 votes and the applicant won by 4,132 votes and, the winning margin was 3,569 votes, that 3,569 votes was likely to be affected by 4,816 votes or 7,366 votes. In other words, either 4,816 votes or 7,366 votes was more than the winning margin of 3,569 votes.
33. In our view, where the evidence does not establish the number of votes affected by the illegal practice with certainty, it would not be just that the candidate should be declared not duly elected or the election be declared void under Section 215 (supra). Similarly, where the evidence does not establish the number of votes affected by the errors or omissions with certainty, it would not be just to:
(a) declare that a person who was returned as elected was not duly elected under Section 212(1)(f) of the Organic Law.
(b) declare a candidate duly elected who was not returned as elected under Section 212(1)(g) of the Organic Law.
(c) declare an election absolutely void under Section 212(1)(h) of the Organic Law.
34. It is our further view that based on well-established judicial precedents such as Toap Hoap v Peter Welawe Iwei (2008) N3420, Kuli v Apamia (2013) N5272, Yagama v Yama (2013) N5222 and Michael Korry v Mogerema Sigo Wei & Electoral Commission (2015) N6050, a better view and the most appropriate and effective form of relief in the context of proven illegal practices or errors or omissions at counting of votes is an order for a re-count of ballot-papers under Section 212(1)(d) of the Organic Law. Interestingly, the National Court acknowledged this view at [190] to [193] of the judgment under challenge by referring to the case of Embel v Kapaol (2003) N2460 where the significance of the strict adherence to the process of scrutiny of votes was emphasized by Los J and recount of votes were ordered after finding of removal of disputed ballot papers in Toap Hoap v Peter Welawe Iwei (supra) and deliberate misplacing of ballot papers associated with threats and intimidation of counting officials at counting in Kuli v Apamia (supra) and Yagama v Yama (supra).
35. Instead of adopting this view, the National Court was persuaded by the first respondent’s submissions and at [194] of the judgment under challenged, held that “the whole counting process was the worst form experienced in the country to date. This case has now added another bad illegal, improper and unacceptable practice at counting of ballot papers in the PNG elections.” This finding was based on the findings at [194(1) – (9)] of the judgment under challenged, which among others, was the Returning Officer being admittedly related to the applicant.
36. The misapplication of Section 215 and Section 218 in relation to the question of total number of votes affected by the illegal practices is compounded by the National Court’s reading of Section 50 of the Constitution wherein it erroneously held at paragraph 233 of the judgment under challenged that “Instead of their choices being recognized, respected and allowed to have their say in the outcome of the election, they were denied that right which amounts to a serious breach of their right under s. 50 of the Constitution.” In our view, Section 50 of the Constitution should be read as every citizen has a right and should be given a reasonable opportunity to cast their vote in a general election because of the word “vote” in Subsection 1(d). To read it as including the vote being recognised, respected and allowed to be counted at counting would be reading too much into Section 50 of the Constitution. It follows that this is not a case where the voters were deprived from exercising their right to cast their votes under Section 50 of the Constitution, where the ballot papers were hijacked at polling and marked by supporters of the winning candidate, but where votes were misplaced or deliberately put in the applicant’s tray within proper verification by the scrutineers of candidates at counting and counting was compromised by these illegal practices.
37. Next, we note that at [76(G)] of the ruling on objection to competency, the National Court ruled that “There is also an allegation of offer of a bribery of K50,000.00 to cause the Petitioner’s scrutineers aimed at getting them out of the counting room and placing the Petitioner’s votes into the 1st Respondent’s box.” Further, we note at [46(13)] of the judgment under challenge, the first respondent’s witness Kama Gande who was one of the first respondent’s scrutineers at the counting room gave evidence that one of the applicant’s scrutineers by the name of Auta Paul Muguwa approached him and told him to leave the ballot papers to the applicant and go out to the gate and get his K50,000.00. The National Court accepted Mr Gande’s evidence because it was credible. At [205] of the said judgment, it concluded that after the applicant’s supporters failed to get the first respondent’s scrutineers not to attend the counting centre and observe the scrutiny of votes by surrounding the outside of the counting and using threats and intimidation, they turned to the counting officials and the first respondent’s scrutineers inside the counting centre and “even [made] an offer of K50,000.00 in bribery.” We also note that the offences of bribery and attempted bribery are provided in Section 103 of the Criminal Code. Section 215(1) of the Organic Law provides that “If the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.”
38. Further, we note that there was no finding on undue influence. Thus, confining our reasons to the finding by the National Court in relation to bribery, we are of the view that the National Court erred in law in finding that K50,000.00 was offered to bribe the first respondent’s scrutineers and counting officials because it is unsupported by evidence. This is because there is no evidence from Kama Gande that he received K50,000.00 from the hands of the applicant or if it was from Auta Paul Muguwa, it was with the knowledge or authority of the applicant. Similarly, there is no evidence from Kama Gande that the applicant offered to him K50,000.00 or if it was Auta Paul Muguwa who offered the money to him, it was with the knowledge or authority of the applicant: Section 215(3)(a) of the Organic Law.
39. In our view, in accepting the evidence of Kama Gande and finding that the first respondent’s scrutineers and counting officials were offered bribe of K50,000.00, it led the National Court to erroneously hold that it was appropriate to declare the election of the applicant void: Section 212(1)(h) and Section 215(1) of the Organic Law. In so holding, it overlooked the constituent elements under Section 215 (supra) that it was necessary to prove the number of votes affected by the illegal practices, that the result of the election was likely affected and that it was just that the election should be declared void. This is where the error lies in the judgment under challenged.
40. Finally, the finding of illegal practices at counting has led to conflicting orders made by the National Court. Having found that the scrutiny of votes at counting was compromised by the illegal practices, rather than ordering a recount of votes to determine the results of the election and the winning candidate, it further declared the election of the applicant null and void. In our view, it reinforces our view that the National Court failed to conclusively find from the available evidence the total number of votes affected by the illegal practices and erroneously decided that the best way to find out the results of the election was to order a recount of votes and also, declare the election of the applicant null and void. In the final analysis, it is our view that the National Court must avoid making conflicting orders: Anton Yagama v Peter Charles Yama & Electoral Commission (2013) SC1244 cf Steven Pirika Kama v John Itanu & Electoral Commission (2008) N3261.
41. We uphold Ground 5.1.
RELIEF SOUGHT
42. We now turn to the specific issue of the appropriateness of the relief granted by the National Court. In summary, Grounds 5.3, 5.4 and 5.5 of the Review Application alleged that the relief granted by the National Court in the form of declaration of election of first respondent’s void and recount of votes using electronic and voter identification system did not form part of the relief pleaded and prayed for in the prayer for relief in the amended petition.
43. We have read the submissions of all the parties for and against this issue and the law in relation to the application of Section 212, Section 215 and Section 218 of the Organic Law. We uphold the applicant’s submissions that by law pursuant to 208(b) of the Organic Law “A petition shall specify the relief to which the petitioner claims to be entitled.” In this instant case, the relief sought by the first respondent are pleaded at paragraph D on page 20 of the amended petition. We have reproduced them at [5] (supra). Except for the order declaring the election of the applicant null and void, we note the primary relief sought by the first respondent are that the petition be upheld and that a recount of votes from elimination 19 to elimination 22 be conducted. In our view, as the first respondent sought a recount of votes, the rest of the orders sought were to facilitate the recount of votes such as where it will be conducted, who will be conducting it, who will be supervising it and after its completion, when the report of the recount of votes will be presented to the National Court for decision.
44. However, after the National Court upheld the petition and ordered a recount of votes, it further ordered that the election of the applicant be declared void. Furthermore, it ordered the second respondent to consider conducting the recount of votes with the use of biometric voting system and use of CCTV at the counting centre. Then, it ordered the second respondent to make a submission to the National Government to use biometric voting system and deploy the use of CCTV at future General elections and a budget for funding be allocated to implement them. The full details of the orders are set out at [7] (supra).
45. First, we uphold that applicant’s submissions that in addition to the orders that the petition be upheld and a recount of votes be conducted, the orders made in relation to the election of the applicant being void, that the second respondent to consider the use of biometric system of voting and use of CCTV at the Counting Centre in the recount of votes, request for funding to the National Government in the National Budget for 2025 and for future General elections and for the National Court to call up the matter to check on compliance of these orders are contrary to and in breach of Section 208(b) (supra).
46. Secondly, these orders are contrary to and fall outside of the relief pleaded and sought at paragraph D on page 20 of the amended petition. On the other hand, it was open to the National Court to grant the orders sought in the amended petition and they would have paved the way for a recount of votes to be conducted with less inconvenience and delay subject to funding and logistics. Thirdly, they can be read as the National Court stepping into the arena of the Executive and Legislative Arms of Government and performing their functions under the guise of exercise of judicial power under Section 212 of the Organic Law.
47. Section 212 of the Organic Law states:
“212. POWERS OF COURT.
(1) 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.
(2) The Judges of the National Court may make rules of court with respect of161 pre-trial conferences and procedures relating to procedures under this Part.
(3) 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.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.”
48. In our view, while Section 212 is expressed to confer power on the National Court to make among others, an order for recount of votes, it is not an open ended one where the National Court can engage to make the type of orders as it did. Similarly, the National Court’s exercise of judicial power under Section 57 of the Constitution to issue those additional orders to facilitate and expediate the recount of votes should not be used to substitute or replace exercise of legislative and executive powers. For these reasons, we are satisfied that the National Court made an error of law sufficient to bring that error under the review jurisdiction of the Supreme Court and have those orders quashed under Section 155(2)(b) of the Constitution. Accordingly, we uphold Ground 5.3, Ground 5.4 and Ground 5.5 and quash the following orders of the National Court:
48.1. that the second respondent to consider applying the electronic voting system in the recount of votes within six months of the order.
48.2. that after making a decision on the use of electronic voting system, that the second respondent provide a detailed strategic implementation plan for the system, with key milestones to be achieved with the relevant time frame to commence in September 2024 and ending September 2026.
48.3. that pursuant to the preceding two orders, the second respondent to inform the National Government in a submission to provide funding in the National Budget for 2025 by 5th October 2024.
48.4. that after the submission from the second respondent, the National Government to give priority to fund the second respondent’s submission and for the second respondent to report back to the National Court at the end of August, September and October 2024 in relation to the compliance of these orders.
48.5. the National reserved the power to call up the matter at any time to check compliance of these orders.
VOIDING OF ELECTION OF APPLICANT
49. We now address the issue of voiding of election of the applicant. In summary Grounds 5.6 and 5.7 of the Review Application alleged that the order for declaration of election of applicant void is contrary to Section 215 of the Organic Law.
50. Similarly, we have read the submissions of all the parties on this issue and the law in relation to the application of Section 212, Section 215 and Section 218 of the Organic Law in addressing Ground 5.6 and Ground 5.7 of the Review Application. We note the order which is subject of the controversy between the parties is the one which declared the election of the applicant null and void. The essence of the complaint by the applicant is that it was not one of the orders sought by the first respondent in the amended petition. We note that where an allegation of illegal practice is proven and where the result of the election was likely to be affected and that the election should be declared void, the National Court is conferred power to declare that the election of the first respondent void pursuant to Section 215(3) (supra). Similarly, an election will be avoided if it is proved that errors or omissions did affect the result of the election pursuant to Section 218(1) (supra). Additionally, the National Court is conferred power to “declare an election absolutely void” pursuant to Section 212(h) of the Organic Law.
51. As we have pointed out at [13] (supra), to prove an illegal practice under Section 215 of the Organic Law, one of the constituent elements to plead and prove is that the result of the election is likely to be affected while in a case of errors or omissions under Section 218 of the Organic Law, it must be pleaded and proved that the errors or omissions did affect the result of the election. In addition, in the case of illegal practices, it is necessary to prove that it is just that the candidate should be declared not duly elected or the election be declared void while in errors or omissions, Section of the Organic Law is silent on these additional requirements.
52. We repeat our reasons at [31] to [40] for upholding these grounds. We reiterate that the National Court placed too much weight on the fight at the counting centre between the supporters of the applicant and scrutineers of the first respondent where one of the first respondent’s scrutineers was attacked and wounded which led it to conclude that the appropriate relief to grant is to order a recount of votes and declare the election of the applicant void. These orders were against the weight of the evidence considering that the fight occurred at the last four elimination rounds (Elimination nos. 19, 20, 21 and 22) at counting and not at the start of counting at primary count which would have led to no counting been conducted. Add to that, the National Court erroneously placed too much weight on the breach of the voters right under Section 50 of the Constitution. There was no breach of Section 50. It erroneously read Section 50 to find that the voters were denied their right to vote when it was not the case. This finding was legally and factually incorrect. The disruption at counting by the supporters of the applicant did not compromise the integrity of the entire counting process to call for the National Court to declare the election of the applicant void. (Our emphasis).
53. This was not a case where there was complete break down in counting and counting was stopped because of not only constant disruption
to counting but civil unrests, threats and actual violence with deaths by the petitioner and other candidates’ supporters giving
the Electoral Commissioner no choice but to declare the leading candidate before the absolute majority was reached under “special
circumstances” under Section 175(1A)(b) of the Organic Law as was the case in William Powi v Bernard Kaku & Electoral Commission (2022) SC2290.
54. We uphold Ground 5.6 and Ground 5.7.
ADMISSION OF CCTV FOOTAGE AS EVIDENCE
55. Finally, we address the issue of CCTV footage evidence. In summary Grounds 5.8 of the Review Application alleged that the admission of the CCTV footage in evidence for the petitioner despite objection on the basis of no source of its origin been disclosed. Secondly, it alleged that the CCTV footage is unreliable and should have been rejected by the National Court.
56. We have read the submissions of all the parties on this issue. First, we note that at the pretrial conference hearing before the Election Petition Judge Administrator, the applicant objected to the use of the CCTV footage. His Honour did not rule on the objection but informed the applicant to take it up at the trial. At trial, the applicant objected to the admissibility of the CCTV footage, but the National Court overruled the objection and accepted the CCTV footage to form part of the evidence of the first respondent’s case.
57. In this Review Application, we note the applicant’s strong submissions that the CCTV footage is inadmissible because its source could not be established by the first respondent. However, the applicant did not refer us to the law or legal principle at common law or equity which stands for the proposition that a CCTV footage is inadmissible evidence if its source is unknown. On our own, we have read the Evidence Act. The provisions relevant to electronic evidence are set out under Division IV.5 (ss64-67J) of the Evidence Act. Section 65 addresses the issue of admissibility of electronic evidence. It states that apart from the existing rules of evidence or statutory provisions relating to the admissibility of records, the Court may have regard to the principles guiding the admissibility of electronic records as prescribed under Division IV.5. Section 66 states that the provisions under Division IV.5 are in addition to and not in derogation of any existing rules of evidence under the Evidence Act or any other law. Thus, electronic records such as CCTV footage are generally admissible if they meet the requirement of authenticity and relevance,
58. The counsel for the parties did not refer us to any decided cases in this jurisdiction or overseas which articulated rules on admissibility of CCTV footage as evidence, how it is tendered to the Court, its viewing and how to assess its veracity. For example, if a CCTV footage is admissible, the question is, will it be tendered by consent subject to cross-examination of its maker by the opposing party or will it be necessary to call independent eyewitnesses’ account to verify its source or will it be necessary to call eyewitness to identify the person (perpetrator) and place in the CCTV footage?
59. Some assistance may be sought from the Fijian High Court case of Riddhi Damodar v The State (2023) FJHC 275 where the question of relevance of a CCTV footage of the round-about of a road in a motor traffic offence case was considered. There, an order was sought to stay the criminal prosecution and was granted because the State through the police investigating officer failed to produce the CCTV footage after it was viewed during an interview with the accused. The High Court held that the prosecution’s failure to produce the CCTV footage constituted a denial of the accused’s right to a fair trial.
60. In the second Fijian High Court case of The State v Sunia Roraqio (2022) FJHC 200, the prosecution produced a CCTV footage to identify the accused in a break and entry and stealing case from a shop in which among others, associated food items, pair of shoes, 3 x laptops, 1 x iPhone 5S and cash were stolen. The CCTV footage was downloaded in a USB, and the USB was tendered to the Court. In addition to the CCTV footage, police officers were also called to testify in Court to identify the accused. One of the police officers testified recognising the accused because he was known to her. The High Court heard from the complainants that the extract in the CCTV footage was an accurate and contemporaneous recording of the CCTV camera at the subject location with the date and time automatically depicted in it. At [31] of the judgment, the High Court referred to Dodson and Williams [1984] 79 Cr App R 220 where Watkins LJ held that “photographs taken by the security camera during the robbery are admissible in evidence for two purposes, Firstly, it could establish that the offence was committed and that secondly, it could establish as to who committed the crime. It was also held that that the jury can compare the accused in Court with the suspect in the photographs,” and accepted that the CCTV footage was relevant.
61. Two key principles extracted from the above cases are, a CCTV footage is admissible if it is relevant to:
1. establish that the offence was committed and
2. establish who committed the crime.
62. In the context of an election petition to prove allegations of illegal practices at counting, a CCTV footage is admissible if
it relevant to:
1. establish allegations of illegal practices at counting and
2. establish who committed the illegal practices.
63. In the present case, first we note at [276] of the judgment under challenge that the National Court relied on Section 92(3) and Section 93(1) of the Election Regulations to accept the CCTV footage to form part of the evidence for the first respondent’s case. Section 92(3) and Section 93(1) provides for use of electronic scrutiny system at counting but not its admissibility. Secondly, we note at [277] to [278] of the judgment under challenged, the National Court noted the benefits of using a CCTV system and relied on the CCTV footage to analysis and weigh up the conflicting witnesses’ accounts in relation to what occurred at the counting centre/room at the material times to making appropriate findings of fact. Thirdly, as to the source of the CCTV footage, we note the arguments and exchanges between the counsel for the parties and the presiding Judge in the transcripts at pages 121 to 132 of Volume 4 of the Appeal Book centred round the question of whether the second respondent or a third party engaged by the second respondent was the maker of the CCTV footage.
64. In addition, the applicant objected to its admissibility because certain parts of the footage were blurred or visually defective. Except for these two grounds of objection, it is clear to us that the evidence of its source came from either the second respondent or a third party engaged by the second respondent. If there was any doubt as to its veracity and reliability, the applicant did not contest its accuracy and relevance. We note the presiding Judge viewed the CCTV footage and weighed up the conflicting accounts by the respondents’ witnesses and applicant’s witnesses in relation to the question of whether the scrutiny of votes at the counter centre was compromised and accepted the account of the respondents’ witnesses. There lies the question of relevance of the CCTV footage to establish the allegations of illegal practices and who committed the illegal practices. Accordingly, we are not satisfied that the applicant has demonstrated that the CCTV footage was erroneously received into evidence for the first respondent’s case. We dismiss Ground 5.8 of the Review Application.
CONCLUSION
65. While we have dismissed Ground 5.2 and Ground 5.8, we have upheld the balance of the grounds of the Review Application. We quash the order declaring the election of the applicant null and those additional orders to facilitate the recount of votes and substituting them with an order for recount of votes from elimination no 19 to elimination no 22 with new additional orders to facilitate the recount. Finally, appropriate orders for costs and reimbursement of security deposit will be made hereunder.
ORDER
66. The final terms of the order are:
________________________________________________________________
Lawyers for applicant: Gileng & Co Lawyers
Lawyers for first respondent: Emmanuel Lawyers
Lawyers for second respondent: Niugini Legal Practice
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