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Wai v Graham [2005] PGNC 166; N2768 (17 January 2005)

N2768

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP 02 OF 2004

PAWA WAI
Petitioner

AND

JAMIE MAXTONE GRAHAM
1st Respondent

AND

ELECTORAL COMMISSIONER
2nd Respondent

MT HAGEN: SALIKA, J
13,14,15,16 December, 2004, 17 January, 2005

BY ELECTION – No case submission at end of Petitioner’s evidence.
No evidence to support petition – Petition is dismissed.

Cases cited:
Zeipi v Gagarimabu (1999) SCR 5 of 1998 Unreported and Un-numbered judgement
Robert Lak v Paias Wingti (2003) N2358

Counsel:
Mr Kunai for the Petitioner
Mr Dawidi for the 1st Respondent
Mr Kombagle for the 2nd Respondent

17 December, 2005

I finished hearing evidence for the petitioner on 16 December 2004 and on the 17 December 2004, the Respondents applied to have the petition dismissed at that stage. The application is akin to a "no case submission" in a criminal trial and a "non suit" application in a civil trial. The application is to stop the trial at the close of the petitioner’s case.

The respondents rely on the authorities of the Supreme Court decision in the matter of Perry Zeipi v Gabia Gagarimabu (1999) SCR 5 of 1998 Un-numbered and Unreported Judgement of the Supreme court. In that case the Supreme Court said where there is simply no evidence on a material aspect of the petitioner’s case the trial judge has the discretion to stop the case without proceeding further. They relied on the following passage of the judgement.

"It is for the petitioner to prove his case by summoning the appropriate records from the Electoral Commission to be produced and the trial judge was quite correct to point this out to the applicant. Besides precedents have already been set in a number of cases that have been disposed of in this matter including the recent case of EP 43 of 1997. In the matter of Kavieng Open Electorate and Ben Micah v Ian Ling Stuckey and the Electoral Commission N7190 and EP 28 of 1997 Peter Launa v Yauwe Riyong and another Un-numbered National Court judgement and others cited by counsel for the respondent that go far back as 1977 in Re Manus Provincial Parliamentary Election Arnold Marsipal v Michael Pondros (1977) PNGLR 354 where the petition was grounded on irregularities in the electoral procedure. The judge w who was in total control of the case saw the evidence adduced was hardly of any material worth to advance the petitioner’s case and asked counsel for the Respondents if he wanted to call evidence".

The respondents also relied on the authority of Robert Lak v Paias Wingti (2003) N2358 where Kapi DCJ (as he then was) said

"I set out my views in respect of this kind of application in Desmond Baira v Kilroy Genia and Electoral Commission SC579. I adopt what I said there and in particular the passage.

"Whether or not a judge should stop a case at the close of the petitioner’s case is a matter entirely up to the discretion of the Court. In considering the exercise of this discretion it would be relevant for the court to have regard to the terms of s.217 of the Organic Law. The Court should be guided by the substantial merits and good conscience of each case without regard to legal from or technicalities. In my opinion it would be open to a judge having regard to the terms of s.217 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".

These lines of authorities support the proportion that in an election petition an application may be made to stop the petitioner’s case at the close of his evidence. It is then left to the presiding judge to consider the application and decide whether the application can succeed. In considering the application the judge would go through the evidence adduced by the petitioner and his witnesses. If the judge finds there is evidence on the material aspects of the petitioner’s case then the application should be dismissed. If on the other hand the judge considers that there is no evidence on a material aspect of the petitioner’s case then he has the discretion to stop the case there without proceeding further.

In this matter the petitioner himself gave evidence and called eight other witnesses to support the petition.

The petitioner gave evidence by way of an affidavit and oral evidence as well. His evidence on affidavit and oral are largely based on what his scrutineer Joseph Tip told him. His complaint is that the Electoral Officials did not allow the scrutineers to view the exhausted ballot papers before the declarations were made. That was reported to him by his scrutineer Joseph Tip.

Jsoeph Tip gave evidence by way of affidavit and also by oral evidence. The witness’s affidavit was not taken in accordance with Oaths and Affirmations Act.

Under the normal rules of evidence this witness's evidence would not be accepted but in this case I take into account s.217 of the Organic Law. I accept the witnesses evidence as it is. The witness Joseph Tip however said at one stage Kuk Kuli’s scrutineer asked to see the exhausted ballot papers but he was instead assaulted by the police. He also said the exhausted ballot papers were deliberately put in the First Respondent’s tray by electoral officials. He also said valid ballot papers for his candidate, the petitioner were purposely left in the exhausted ballot paper tray. He was asked how he knew that and he said he was close to them and told them to put them in the correct tray. He also said he warned the counting officials to be careful in handling the ballot papers. He was asked if what he was saying was that the Electoral Officials put the exhausted ballot papers into the candidates' trays and he gave a speculative answer by saying that it could have happened. He also gave evidence that errors committed by Electoral officials were corrected. It was put to JosepTip that e very time an error was found it was corrected and his answer was that on certain occasions errors were found and corrected but he said the errors were committed many times and if it was not found it could have been placed in the First Respondents tray or they could have placed the petitioners valid votes in the exhausted ballot tray.

The evidence of Joseph Tip who is the main witness for the petitioner in mostly speculative in so far as distribution of the ballot papers is concerned. He appeared to have been given access to viewing the exhausted ballot papers as he appears to have seen what was going on.. Yet the petition is that he and other scrutineers were not given the opportunity to view the ballot papers.

The petitioner’s other witnesses namely John Pui, Dickson Tapi, Alex Komble, Samson Philip, James Kaipel and Petrus Kuri simply restated what Joseph Tip had said. Many of these witnesses were scrutineers of other candidates who were present at some stage of counting. Many left the counting centre after their candidates were eliminated. Their evidence did not offer any thing more that what Joseph Tip told the court. The witness John Pui probably sums up the whole matter with the following questions I asked:-

Q. Are you asking for a recount of ballot papers?
A. Yes
Q. Why
A. They put 400 votes in Jamie Graham’s tray.
Q. Did you see that?

1. That is our thought. We thought they put the ballot papers to top Jamie Graham’s tray. I thought like that and other scrutineers thought that too".
   

If this is the kind of evidence the petition is relying on to have the election of the first respondent overturned then it has to be said by this court that such evidence will not help to invalidate an election. The petition must come to court with proper evidence. Where evidence is merely speculative or conjecture the court will not hesitate to throw out such a petition. None of the witnesses have told the court with any degree of certainty that some exhausted ballot papers were put into the tray of Jamie Maxtone Graham during the counting or that valid ballot papers belonging to the petitioner were wrongly placed in the exhausted ballot tray. The evidence of the witnesses is fraught with assumptions and speculations as to what could or may have happened. It is not concrete evidence of what actually happened.

I agree with the submissions of the Respondents that the petitioner and his witnesses have not produced any evidence referring to a specific act of error or omission by the electoral officials.

Furthermore the petitioner tendered into evidence an Electoral Commission document marked as Exhibit A2. In this document all the figures appear to balance out. There is no shortfall of 10,612 ballot papers as suggested by the petitioner.

The question I ask at this stage is whether at the end of the petitioner’s case the petitioner has established a case for a recount of the ballot papers. That is one of the reliefs he is seeking. The evidence of the petitioner and Joseph Tip his main witness together with other witnesses in my view do not support a case for a recount of the votes.

This is largely because Joseph Tip, the man who is supposed to have witnessed all the wrong doings of the counting officials does not speak as if he saw any wrong doings. He evidence is assuming a lot of things. It is highly speculative. The court does not act on assumptions or speculations or guesses. It acts on real hard evidence. The petitioner and Joseph Tip have not come up with the required evidence.

Accordingly the answer to the question I asked a little earlier is; No the petitioner has not established a basis for a recount of the ballot papers. In all the circumstances I will stop the petition here and not require the Respondents to go into evidence.

The petition is dismissed. Costs are awarded to the Respondents equally. The security deposited by the petitioner is to be equally distributed between the two respondents as part of their costs.
___________________________________________________
Lawyer for the petitioner: Kunai Lawyers
Lawyer for the Respondent: Pato Lawyers
Lawyer for Second Respondent: Parua Lawyers.