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Adeang v Gioura [1977] NRSC 1; [1969-1982] NLR (A) 99 (19 May 1977)

[1969-1982] NLR (A) 99

IN THE SUPREME COURT OF NAURU

Miscellaneous Cause No. 4 of 1977

KENNAN RANIBOK ADEANG

v.

DEROG GIOURA

19th May, 1977

Elections - Parliament - conduct by candidate vitiating his election as member - whether conduct must constitute electoral offence or can be merely breach of rules of pair conduct.

Elections - Parliament - police officer as candidate - entry into and remaining in polling places - inspecting rolls to ascertain which electors have not voted - impropriety vitiating his election as member.

Elections - Parliament - lobbying of electors by candidate polling day - not unlawful per se - but vitiates election as member if unfair and improper.

Elections - Parliament - candidate's election as member declared invalid - procedure for ascertaining which candidate is elected in his place.

Elections petition in respect of a parliamentary election in the seat of Ubenide G, a police inspector, was a candidate for election in that constituency on polling day in his capacity as a senior police officer he visited the polling places in that constituency. He remained for some time in number of them, standing near the polling clerks and the polling booth and on one occasion gesturing to an elector to vote for him. He also checked the polling clerk's roll of electors, ascertained which electors had not voted, went to their homes in a police car and brought them to the polling station, telling them on the way to vote for him. He also lobbied electors outside polling stations asking them to vote for him. G. received sufficient votes to elect him to a be a member of Parliament and was declared by the Returning officer to have been elected. G. argued that conduct which did not constitute an electoral offence was insufficient to vitiate his election.

Held: (1) For conduct to vitiate a candidate's election as a member it was not necessary for it to constitute an electoral offence. Section 37 of the Electoral Act 1965-1973 requires the Supreme Court to "be guided by good conscience and the substantial merits of the case" when deciding election petitions. Conduct which may influence the result of the poll and which, although not constituting an electoral offence, nevertheless is such that it would be contrary to good conscience to allow the perpetrator to take the benefit of it is sufficient.

(2) The conduct of G. inside the polling stations and in carrying electors in a police car and attempting to influence their voting intentions while doing so was grossly improper and his election as a member was vitiated by it.

(3) Lobbying of electors on polling day is not forbidden by law nor is it of itself unfair. However, the manner of lobbying may in some cases be grossly improper so as to vitiate the election of the candidate on whose behalf it was carried out.

(4) Where a candidate who has been declared by the Returning Officer to have been elected as a member is declared by the Supreme Court not to have been elected, all the voting papers should be recounted with the value of the vote for each candidate being adjusted to take account of the reduction in the number of candidates and, where on any paper the, candidate excluded was not the least preferred candidate, then candidates with lower preferences than his should move up one place in the order of preference

Petitioner in person
Respondent in person

Thompson, CJ.:

This is a petition against the-declaration of the election of the respondent as one of the members of Parliament for the constituency of Ubenide following upon the general election held on 18th December, 1976. The petitioner was of the other candidates who stood for election in that constituency.

The petition is brought on the ground that the respondent's conduct on the polling day was grossly improper, possibly unlawful and so unfair as to vitiate his election. A-number of details of that alleged conduct are stated in the petition. The petitioner prays for a declaration that the respondent was not duly elected, and that either the petitioner was duly elected or an election should be held to fill the vacancy. A second prayer that the election of all the members of Parliament for the constituency should be declared void was abandoned. No allegation was made, and no evidence was led, to impugn in any way the conduct of any of the candidates who stood for election, except for the respondent, or to establish that the respondent's alleged conduct affected the way in which electors voted for candidates other than the respondent. That being so, in my view, the abandonment f the second prayer was proper.

This Court has, therefore, to decide two issues, first, whether the respondent's conduct was such that he ought not have been declared to be elected, and, second, it was, how the vacancy resulting from the order which this Court must make upon such a finding should be filled. The second issue will, of course, not require to be decided the answer to the first issue is "no".

In respect of the first issue questions of fact and a question of law have to be determined. Some of the facts alleged by the petitioner and of which evidence was given by the witnesses called on his behalf are denied by the respondent but a substantial number of them are admitted, wholly or in part, by him. Thus it is not disputed that on afternoon of polling day the respondent, who is an inspector of police, visited all the polling places in the 'constituency and remained in them, near to the polling clerks d the polling booths, for periods ranging from several minutes to nearly an hour. It is not disputed that he that he was in fact on duty and visited the polling places throughout Nauru to check the police officers at them and ensure that there were no breaches of the peace. It is not disputed that the respondent told one elector, a lady, at a polling place in the constituency of Ubenide that there were quite a lot of materials and dresses "at his place" if he won the election. It is not disputed that he checked the list of electors maintained by the polling clerks in the constituency and went and fetched from their homes two electors whom, on the way to the polling station in the police car, he urged to give him their number one vote.

In addition the respondent does not deny the evidence of one of the petitioner's witnesses that, when she was in the polling booth preparing to vote, he gestured to her with his hand from where he was standing nearby within the polling place, indicating that she should vote for him as number one or number two. Nor does he deny that in his presence within one of the polling places a police constable called out to another witness who was about to vote that she should give the respondent her number two vote. In respect of the first incident the respondent says that he cannot remember signalling and in respect of the second that he did not hear the remark. However, he admits that he heard the elector say "Ah, I am shy." She has given evidence that she said "Ah, I am shy not to give him my number two vote." She explained that she said that because of his presence which overawed her.

In explanation of the conduct which he has admitted the respondent has given evidence that his remark about the materials and the dresses was intended as a joke and that he went and fetched people who had not voted so as to save them from committing the offence of failing to vote. He has stated, in effect, that nothing he did was intended to exert any improper or unfair influence on any of the electors.

It is not necessary to decide where the truth lies in respect of the other incidents of which evidence has been given. Except for volume, they add nothing of significance to what has been admitted or not denied. I turn, therefore, to the question of law, that is whether this Court is either required or empowered to declare that in consequence of his conduct on polling day the respondent was not duly elected. In England an election can be overturned only if some act has been done which falls within the statutory definition of a corrupt of illegal practice. A large number of different types of acts are included within the definition. By contrast, in Nauru the Electoral Act 1965-1973 does not state any grounds on which a candidate's conduct can be impugned, so as to vitiate his election. Section 35 prescribes this Court's powers. Section 37 provides that this Court "shall be guided by good conscience and the substantial merits of each case without being bound to legal forms and technicalities." In addition various electoral offences are provided for in the Criminal Code of Queensland in its application to Nauru.

The Court's first step towards determining the question of law must be to decide whether an electoral offence has to be established or whether the introduction of the test of "good conscience" is to be taken as, in effect; requiring the Court to apply what may be called rules of fair conduct. In my view, if the former alternative were the correct one, the requirement that this Court is to be guided by good conscience would be otiose. That provision is contained in a statute of Nauru, not merely an adopted statute, such as the Criminal Code is. Effect must, therefore, be given to it. Even if the first alternative were adopted, the respondent's alleged joke about the material and dresses, in my view, probably falls within the definition of bribery in section 103(1) of the Criminal Code; although a criminal prosecution would scarcely be warranted, it would probably be enough to vitiate his election. But I have no doubt that the second is the correct alternative, and that this Court has to decide whether the impropriety and unfairness of the respondent's conduct was such: as to make it unconscionable that he should have been declared to be elected. Mere indiscretions and conduct unlikely to have had any substantial effect on the result of the election are to be ignored. The impropriety must be great and the likely effect substantial.

Applying that test to the conduct of the respondent I find that there was great impropriety. It may well be that he considered that he had to discharge certain responsibilities for the maintenance of order at the polling places; if so, he was misguided. If, as a candidate, he could not be given leave on that day, he should at the very least arranged or another officer to perform those duties and for himself to perform duties unconnected with the election. If, due to an emergency, he had had to visit a polling place in the course of his duty, the utmost circumspection was required of him. Instead he acted, at the best, without any regard for the undue influence which his lengthy presence within the polling places and his carrying of electors in the police car might have on the manner in which electors voted. When, in addition to that, his remark about the materials and dresses is taken into account, and his attempt to persuade those carried in the car to vote for him, the level of impropriety becomes extremely high. That conduct was very likely to have influenced some electors to vote for him. It is, therefore, conduct which makes it unconscionable that he should have been declared not to have been duly elected.

Before I deal with the second issue, it may be helpful if I comment briefly on a suggestion made in the course of these proceedings that lobbying of electors on polling day is improper or unfair. It was stated that it has been the custom in the elections held up to date for candidates not to lobby electors go on polling day. However, there is nothing unlawful in such lobbying per se; provided that it is done before the electors go into the polling place provided that there is no liberty, no threat and not treating, it is not unfair or improper. If Parliament wishes to do so, of course, it can make lobbying on polling day unlawful. Indeed it can, if it wishes, define precisely what conduct is improper, as has been done in England. If it did so, candidates could have no doubt whether their conduct was lawful or not. In the absence of such statutory provision, however, candidates will have to continue to be guided, as most of them have always been, by their own good sense as to what is proper and fair and what is not.

The second issue, that is how the vacancy resulting from the declaration that the respondent was not duly elected is to be filled, raises first a question of law, that is to say what are the powers of this Court and what principles are to be applied in exercising them. Section 35(1) of the Electoral Act 1965-1973 empowers this Court to "declare a candidate duly elected who has not been declared to be elected under section 28 of the Act". But it does not give any guidance as to the circumstances in which such a declaration can or should be made. Section 35(2) gives this Court a discretion to act as it thinks just. Then, again, section 37 requires this Court to be guided by good conscience. It is clear, therefore, that the matter must be decided as this Court thinks just and fair.

If the respondent's conduct had been such as to be likely to affect the order in which electors voted for the other candidates, it would probably be unjust to declare any other candidate to have been elected. But that is not the case here; his conduct was most unlikely to have had any such effect. The electors stated on their ballot papers their relative preferences for all the ten candidates. It is just, in my view, for this Court to give effect to the wishes of

The petitioner has submitted that he should be declared to be duly elected because, when the votes were counted on 18th December, he had the next highest number after the four who were declared to be elected. That submission, however, takes no account of the disqualification of the respondent. The effect of that disqualification must be that he drops out of the ballot altogether. In order to give effect to the wishes of the electors, the order of preference for candidates must be retained but all the candidates with a lower preference number than the respondent on any ballot paper must move up one. This will alter the total umber of votes received by all the candidates. Quite possibly the petitioner will be fourth, or even higher, after e new count is made. In-that case he will be declared to be elected. But the new count, with the added values allocated to the votes for candidates given lower preference than the respondent must be made.

It is possible, though most unlikely, that the new count will result in one or more of the three candidates other than the respondent who were declared to be elected for the constituency of Ubenide having less votes than four others. If so, it will be necessary for this Court to consider whether he or they should be declared not to have been elected. If that becomes necessary, he or they will be given a chance to make representations to this Court before any order is made. If, however, (which is much more likely) the new count confirms them as the first three in total number of votes, this Court will simply declare the candidate having the fourth highest number of votes to be duly elected.

Accordingly, I order that the votes be counted afresh by the Returning Officer. The respondent's name is to be struck out on all ballot papers and the candidates with lower preference numbers than his on any ballot paper are to have their preference numbers reduced by one. Then the votes are to be counted in accordance with the Dowdall system of vote-counting. The reallocation of preference numbers and the counting of the votes is to be scrutinised by the Registrar of this Court. The result of the new count is to be certified to this Court by the Returning Officer as soon as reasonably possible and the scrutiny is to be certified by the Registrar.

Upon receiving the result of the new count this Court will make a further order as appropriate. That order will be pronounced in open court and notice of the date and time of doing so will be given to the petitioner and to any other person affected by it.