Alexander Hyde v Electoral Commissioner of South Australia, Jing Li (No 3)
[2025] SADC 20
•7 March 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3)
[2025] SADC 20
Judgment of his Honour Judge Burnett
7 March 2025
LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - JURISDICTION AND POWERS OF COURT
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS
In October and November 2022, the City of Adelaide conducted an election, by way of postal vote, under the Local Government (Elections) Act 1999 (SA)(the Elections Act) and schedule 1 of the City of Adelaide Act 1998 (SA). That election included the election of four councillors for the Central Ward. The results of the election were declared on 18 November 2022 and four persons were returned as elected, including the second respondent, Mr Li. The petitioner, Mr Hyde, was an unsuccessful candidate and was the last person excluded. After preferences, the petitioner received the fifth highest number of votes. The margin between the petitioner and the second respondent was 24 votes, taking into account the transfer value of votes under the counting system.
By a petition lodged with the Court of Disputed Returns on 16 December 2022 and later revised on 29 March 2023 and 26 June 2023, the petitioner has challenged, pursuant to Part 13 of the Elections Act, the validity of the election. The petitioner alleges that there had been illegal practices that have affected the result of the election and has sought relief including declarations that the elected persons, including the second respondent, were not duly elected and a declaration that the election for the Central Ward was void.
The illegal practices alleged by the petitioner included: (1) that the second respondent offered a bribe to persons with a view to influencing the vote of a person at an election or interfering with the due course of an election contrary to s 57(1)(b) and s 57(1)(c) of the Elections Act; (2) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent acted as an assistant to a person voting at the election contrary to s 61(1) of the Elections Act by taking possession of postal voting papers for the election; (3) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent took possession or attempted to take possession of postal voting packs contrary to s 61(4) of the Elections Act; (4) between 14 October 2022 and 10 November 2022, at least 73 persons had made a statement in the declaration for the postal voting and/or on the application for enrolment that was, to their knowledge, false or misleading in a material respect or had marked a vote on the ballot paper which had not been issued to them (contrary respectively to ss 64(1) and 64(2) of the Elections Act) and further that those 73 persons had dishonestly exercised a vote at an election to which they were not entitled contrary to s 58(1) of the Elections Act.
The petitioner also alleged that the individual illegal practices constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election under the common law of elections.
The first respondent, the Electoral Commissioner of South Australia, and the second respondent opposed the petition.
Held:
(1) The common law of elections does not apply to a local government election conducted under the Elections Act: Sue v Hill (1999) 199 CLR 462, Hudson v Lee (No 2) (1993) 177 CLR 627 applied; Featherston v Tully (2002) 83 SASR 302 distinguished; Aldridge v Electoral Commissioner of South Australia [2010] SASC 194 considered.
(2) The admission of hearsay evidence in a matter before a tribunal where the rules of evidence do not apply is governed by the principles set out in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41. The evidence must be rationally probative and not cause unfairness or disadvantage to the other party. The Court must consider the seriousness of the allegation in respect of which the hearsay evidence is sought to be used and how that allegation may otherwise be proved.
(3) The allegation of bribery was not made out.
(4) The allegations that persons, acting on behalf of the second respondent, acted as an assistant to a person voting at the election contrary to s 61(1) of the Elections Act were made out in two instances, namely in relation to the two persons shown to be dealing with five ballot papers in the photographs outside the Vision on Morphett Apartments on 27 October 2022 and in relation to Mr Jin and Mr Bai shown to be dealing with 10 ballot papers at the Stonemill restaurant, on 27 October 2022.
(5) The allegations that persons, acting on behalf of the second respondent, had in their possession postal voting papers (which had not been issued to them as an elector in their own right), contrary to s 61(4) of the Elections Act were made out in three instances, namely by the two persons shown in the photographs outside Vision on Morphett, by Mr Jin and Mr Bai at the Stonemill restaurant and by Mr Zhang when he collected unfilled ballot papers from apartments.
(6) The allegations that persons had dishonesty exercised a vote at an election (contrary to s 58(1) of the Elections Act), made a statement in the voting declaration that was, to that person’s knowledge false or misleading in a material respect (contrary to s 64(1) of the Elections Act) and voted or made a mark on a ballot paper, not being the ballot paper issued to the person (contrary to s 64(2) of the Elections Act) were made out in relation (a) 16 of the 73 persons identified in Appendix A to the petition; (b) the persons in possession of the five ballot papers shown in the photographs outside the Vision on Morphett Apartments on 27 October 2022; (3) Mr Zhang when he collected the unfilled ballot papers from apartments.
(7) A breach of s 58(1) is presumed, under s 73(2) of the Elections Act, to have affected the result of the election unless the contrary is proved on the balance of probabilities. Considering the totality of the contraventions of s 58(1) comprising the 16 identified persons, the persons in the photographs outside the Vision on Morphett Apartments in possession of and dealing with the 5 ballot papers and the unascertained number of ballot papers collected and filled in by Mr Zhang, the presumption applies. No evidence was adduced by the respondents to rebut the presumption, although the evidence of the breaches must be considered in the circumstances that were found to exist.
(8) Alternatively, the individual breaches, may be considered in aggregate in determining whether it has been established, on the balance of probabilities, that the illegal practices affected the result of the election pursuant to s 73(1) of the Elections Act. The Court is satisfied that the result of the election was so affected, taking into account the 10 ballot papers being dealt with by Mr Jin and Mr Bai, the 5 ballot papers shown in the photographs outside Vision on Morphett, the unfilled ballot papers collected by Mr Zhang, and the 16 identified persons whose ballot papers, the Court has found, were not filled in by them.
Local Government (Elections) Act 1999 (SA) ss 4, 5, 10(1), 14, 16, 37, 39, 39(11), 47(2), 48, 57(1)(b), 57(1)(c), 58, 58(1), 59, 61(1), 61(2), 61(4), 64(1), 64(2), 66(2), 67(5), 69(1), 70, 71(2), 71(3), 71(4), 72, 73(1), 73(2), 92, 107(3), 107(4); City of Adelaide Act 1998 (SA) Clause 2 of Schedule 1, Clause 18 of schedule 1, s 19 schedule 1, Clause 4 of Schedule 1; Commonwealth Electoral Act 1918 (Cth) ss 360(2), 362, 363(3), 364; Surveillance Devices Act 2016 (SA) ; Limitation of Actions Act 1936 (SA) s 48; Legislation Interpretation Act 2021 (SA) s 10, referred to.
Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; Carr v Baker (1936) SR (NSW) 301; Sue v Hill (1999) 199 CLR 462; Hudson v Lee (No 2) (1993) 177 CLR 627; Featherston v Tully (2002) 83 SASR 302; Aldridge v Electoral Commissioner of SA & Ors [2010] SASC 194; Briginshaw v Briginshaw (1938) 60 CLR 336; SJ Berry Pty Ltd v McEntee [2022] SASCA 133; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; The King v War Pensions Entitlement Appeal Tribunal: exp Bott (1933) 50 CLR 228; In the Matter of Hyde [2023] SASC 146; Jones v Dunkel (1950) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Australian Securities & Investments Commission v Rich (2009) 236 FLR 1; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Smith v Samuels (1976) 12, considered.
ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3)
[2025] SADC 20Contents
Introduction
The Election
The Elections Act and the Petition
The Common Law of Elections
Procedure and Evidentiary Framework
Application of the Briginshaw Standard
Hearsay Evidence
The Trial
Delay in the Hearing of the Petition
The Witnesses
Jones v Dunkel
Background Facts
Period from April 2022 to end of August 2022-prior to the sending of Postal Votes
Visits to Apartment Buildings by Mr Hou and Mr Hyde
WeChat Message to Pick Up Ballots
Mr Hou’s Communications with 22 Persons not receiving Ballot Papers
Two Persons handling Voter Packs outside Vision on Morphett - 27 October 2022
Mr Bai and Mr Jin handling Ballot Papers - Stonemill Restaurant - 27 October 2022
WeChat Message from Miranda Li
Study Adelaide Event
Conversation between Mr Ma and Mr Weng - 10 November 2022
Complaints to the Electoral Commissioner and investigation by the Electoral Commission
Determination of the Allegations in the Petition of Bribery – ss 57(1)(b) and 57(1)(c) of the Elections Act
Determination of the allegations in the petition of persons acting on behalf of the second respondent as an assistant to a person voting in the election - s 61(1) of the Elections Act
Evidence about Visiting Apartments
Evidence about WeChat Message
Evidence about Photographs in Exhibit P7 taken on 27 October 2022
Evidence relating to Mr Bai and Mr Jin at the Stonemill Restaurant on 27 October 2022
Findings concerning Contraventions of s 61(1)
Determination of allegations in the petition of a person acting on behalf of the second respondent having in their possession postal voting papers for the election contrary to s 61(4) of the Elections Act
25 May 2022 WeChat Message
Evidence relation to Mr Zhang collecting Unfilled Ballot Papers
Evidence of the Involvement of Two International Students
Evidence in relation to Ms Mirandi Li approaching a landlord for a vote
Evidence relating to Exhibit P7 and Mr Bai and Mr Jin
Summary of Findings about Contraventions of s 61(4)
Determination of allegations in the petition of a making a misleading or knowingly making a false declaration on voting papers in a material respect or marking a ballot paper to which they were not entitled to mark or dishonestly exercising a vote to which they were not entitled-ss 64(1), s 64(2) and 58(1) of the Elections Act
Overview of the Allegations in the Petition
The Experts’ Reports and Evidence
Evidence as to Signatures
Further Circumstantial Evidence Concerning Persons Numbered 1-27 in Appendix A
Further Circumstantial Evidence in relation to Persons Concerning Persons Numbered 28-73 of the Petition
Evidence in Relation to Handwriting on the Enrolment Forms
Determination of Allegations in respect of persons named in Appendix A where there is further circumstantial evidence
Preliminary matters to be Determined
Pleading about the Date Range of the Alleged Contraventions
Does s 72 prevent reliance on alleged falsely completed applications for enrolment
Is the petitioner entitled to rely on the date of birth evidence and the evidence as to the different dates upon which the applicant for enrolment and the witness signed the application for enrolment.
Weight to be given of date of birth evidence and witness signature evidence
Is the Court able to determine that the declaration on the voting envelope was false or dishonestly applied?
Voters in respect of whom there is circumstantial evidence that the declaration on the voting envelope was false and dishonestly applied.
Other Circumstantial Facts
Circumstantial evidence from communications discovered on the re-opening
Breaches of the Common Law of Elections
Affect of the Illegal Practices on the Result of the Election
Orders
Conclusion
ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3)
[2025] SADC 20
Court of Disputed Returns
Introduction
In October and November 2022, the City of Adelaide conducted an election under the Local Government (Elections) Act 1999 (SA) (the Elections Act) and schedule 1 of the City of Adelaide Act 1998 (SA) (the City of Adelaide Act). That election included an election for councillors for the Central Ward, which election is the subject matter of this petition. The election was conducted by way of a postal vote. Postal voting packages were sent to electors in the period from about 14 October 2022 to 20 October 2022. Voting closed on 10 November 2022.
There were 14 candidates for the election of four councillors for the Central Ward. The candidates included the petitioner, Mr Hyde, and the second respondent, Mr Li.
On 18 November 2022, four candidates were returned as elected for the Central Ward including the second respondent. The petitioner was an unsuccessful candidate. The petitioner was the last candidate excluded and, after preferences, received the fifth highest number of votes. At the time of the declaration of the election on 18 November 2022, the margin between the petitioner and the second respondent was 31 votes. By letter dated 5 December 2023, the Electoral Commissioner advised the parties that there had been an error in the distribution of preferences such that the margin between the petitioner and the second respondent was 24 votes rather than 31 votes (taking into account the transfer value of the votes under the counting system).
By a petition to the Court of Disputed Returns dated 15 December 2022 (the original petition) but revised on 29 March 2023 and again on 26 June 2023 (the revised petition or the petition), the petitioner alleged that there had been illegal practices that had affected the result of the election and sought relief that included declarations that the elected persons, including the second respondent, were not duly elected and a declaration that the election for the Central Ward was void.
The petition was opposed by the Electoral Commissioner and the second respondent.
The Election
Pursuant to s 5 of the Elections Act, periodic elections of all Councils, including the City of Adelaide, are to be held at 4 year intervals with voting to close at 5:00pm on the second to last business day before the second Saturday of November. Voting therefore closed on 10 November 2022 for the 2022 elections. The Electoral Commissioner is the returning officer for council elections.[1]
[1] Section 10(1) of the Elections Act.
In the case of the City of Adelaide, in 2022 elections were held for the position of Lord Mayor, two area councillors, four councillors for the Central Ward, three councillors for the South Ward and two councillors for the North Ward. Pursuant to s 37 of the Elections Act, voting is to be conducted on the basis of postal voting.
Clause 2 of schedule 1 of the City of Adelaide Act (which is in substantially the same terms as s 14 of the Elections Act) sets out the qualifications to vote at an election. Persons qualified to vote include:
(1)natural persons enrolled as an elector on the House of Assembly roll in respect of a place of residence within the council area or ward. No application needs to be made by persons so enrolled;
(2)persons who are or above the age of majority who have been a resident within the council area or ward for a continuous period of at least one month immediately preceding the date of the application for enrolment;
(3)a ratepayer of a rateable property in the area or ward who is the sole owner of the rateable property;
(4)a ratepayer in respect of a rateable property in the area or ward who is the sole occupier of the rateable property and is not a resident of that rateable property;
(5)A body corporate, on application to the chief executive officer, if it is the ratepayer of a rateable property in the area or ward and is the sole owner or occupier of that property.
Each of the voters in the second to fifth categories are on the supplementary roll. The maintenance of the supplementary roll is the responsibility of the chief executive officer of the City of Adelaide.[2] Persons need to apply to the chief executive officer to be included on the supplementary roll, although evidence was given by the Electoral Commissioner that in the case of owner of rateable property, inclusion on the supplementary roll is automictic and no application need be made.
[2] Section 15 of the Elections Act.
The voters’ roll, comprising the House of Assembly roll and the Supplementary Roll, for the council elections closed on 29 July 2022. Relevantly, there were 13,909 electors on the voters roll for the Central Ward.
Nominations for candidates seeking to run for the election opened on 23 August 2022 and closed on 6 September 2022. Fourteen candidates nominated for the 4 positions in the Central Ward, including the petitioner and the second respondent. The petitioner had previously been elected in the 2018 elections as a member of the South Ward but in 2022 decided to nominate for the Central Ward.
Clause 18 of schedule 1 of the City of Adelaide Act (which is in similar terms to s 39 of the Elections Act) requires voting papers to be posted to every natural person and body corporate on the voters roll.
Voting packs were sent to voters in the period between 14 October 2022 and 20 October 2022. Voters, after marking their ballot, were required to place the completed ballot papers in the ballot paper envelope and seal that envelope. Voters were required to sign a declaration that the ballot papers enclosed in the envelope contained their vote and they had not otherwise voted at the election. The ballot paper envelope was then placed in the reply paid envelope, which was addressed to the Returning Officer, City of Adelaide.
Exhibits 1R8 and 1R9 provide evidence of the contents of the voting pack and of the voting material that was sent to a voter entitled to vote in the Central Ward election of the City of Adelaide. Exhibit 1R46 contained a description of the colours of the ballot papers. The contents of the ballot pack for the Central Ward election comprised:
(1)a blue/green envelope that contained all documents sent by the Council. The same envelope was used in all Council elections save for some small writing in the top left corner of the envelope directing the envelope, if undeliverable, to be returned to the returning officer of the particular council;
(2)a green envelope, described as the ballot paper envelope, in which the ballot papers were to be placed, when completed and containing a declaration to be completed by the voter that he or she was the person entitled to vote;
(3)a white envelope in which the green envelope is placed;
(4)a pink ballot paper for the election of councillors for the Central Ward;
(5)a blue ballot paper for the election of area councillors. This colour was also used for ward 6 ballot papers of other councils. Nine councils used this colour for that purpose (Exhibit 1R46);
(6)a white ballot paper for the election of lord mayor;
(7)a voting guide;
(8)a booklet of the profiles of candidates.
Voting closed on 10 November 2022 at 5:00pm. Three thousand eight hundred and five ballot paper envelopes were returned for the Central Ward of which 3437 were accepted and 368 rejected. Papers were rejected at this stage because the declaration on the envelopes had not been completed correctly.
The next stage of scrutiny occurred when the envelopes were opened. Envelopes may be rejected at this stage because there were no ballot papers in the envelopes. Fifty five ballot papers were rejected as part of this scrutiny (which is referred to as the initial scrutiny) which left 3382 votes proceeding to the next stage of counting.
During the course of additional scrutiny performed by the Electoral Commissioner in early November 2022, 23 ballots were excluded including 21 on the basis that they had been filled out by someone other than the owner. Further ballot papers were rejected as informal. Counting of votes commenced on 12 November 2022. Ultimately, 3292 ballot papers were accepted and counted.
On 13 November 2022, the provisional results for the Central Ward election were announced. On 16 November 2022, the petitioner requested a recount, which request was refused by the Electoral Commissioner and on 17 November 2022, the Electoral Commissioner formally notified the City of Adelaide of the election results. There was a formal declaration of the poll on 18 November 2022 (Exhibit P3). That declaration stated that Carmel Noon, Zhoupeng Hou, David Elliott and Jing Li were elected as councillors for the Central Ward.
The Elections Act and the Petition
Part 13 of the Elections Act establishes a Court of Disputed Returns which is constituted by a judge of the District Court. Section 67(5) of the Elections Act provides:
Subject to this Part, the procedure and powers of the Court are the same as those of the District Court when exercising its civil jurisdiction.
The Court of Disputed Returns has jurisdiction pursuant to s 69(1) of the Elections Act to hear and determine any petition addressed to it disputing the validity of an election. Under s 72 of the Elections Act, the Court however cannot call into question the entitlement to vote of an elector whose name appears on the voters roll as an elector.
Section 70 sets out certain requirements with which the petition must comply. Section 70 provides:
(1)A petition to the Court must:
(a) set out the facts relied upon to invalidate the election; and
(b) set out the relief which the petitioner seeks; and
(c) be signed by a candidate at the election in dispute or by an elector for that election; and
(d) be lodged with the clerk of the Court within 28 days after the conclusion of the election; and
(e) be accompanied by the prescribed amount as security for costs.
(2)…
(3)If a person or council served under subsection (2) proposes to contest the petition, the person or council must, within 14 days after service, or such further time as may be allowed by the Court (on application made either before or after the expiration of the period of 14 days), lodge with the clerk of the Court and serve on the petitioner, a reply.
(4)A reply must:
(a) set out the facts on which the applicant [sic] proposed to rely; and
(b) ask for any relief to which the applicant [sic] claims to be entitled;
(c) be signed….
Section 71 sets out the powers of the Court. It relevantly provides:
(1)The Court must sit as an open court and its powers include the following:
(a) – (e )…
(f) to declare-
(i)that a person who was returned as elected was not duly elected; and
(ii)that a candidate who was not returned as elected was duly elected;
(g) to declare an election void;
(h) to dismiss or uphold a petition, in whole or in part;
(i) to amend or allow the amendment of a petition or reply;
(j) …
(2)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.
(3) The Court is not bound by the rules of evidence.
(4) The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities.
(5) A decision of the Court is final and without appeal.
Section 73(1) provides that a Court cannot declare an election void or that a candidate was not duly elected on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the illegal practice. Section 73(2) then states that if an illegal practice under ss 57, 58 or 59 has been found to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities.
In the petition, the petitioner alleged that the second respondent, or persons acting on his behalf, committed a series of independent illegal practices under Part 12 of the Elections Act. In addition, the petitioner alleged that 73 persons made a false declaration on either the declaration on their voting envelope or on their application for enrolment.
Specifically, the petitioner alleged in the revised petition that:
(1)at a dinner held on 27 May 2022, the second respondent offered a bribe to persons with a view to influencing the vote of a person at an election or interfering with the due course of an election (contrary to s 57(1)(b) and s 57(1)(c) of the Elections Act);
(2)between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent acted as an assistant to a person voting at the election (contrary to s 61(1) of the Elections Act) by taking possession of postal voting papers for the election;
(3)between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent took possession or attempted to take possession of postal voting packs contrary to s 61(4) of the Elections Act;
(4)between 14 October 2022 and 10 November 2022, at least 73 persons had made a statement in the declaration for the postal voting and/or on the application for enrolment that was, to that person’s knowledge, false or misleading in a material respect or had marked a vote on the ballot paper which had not been issued to them (contrary to ss 64(1) and 64(2) of the Elections Act) and further that those 73 persons had dishonestly exercised a vote at an election to which they were not entitled (contrary to s 58(1) of the Elections Act).
The petitioner also alleged in the petition that the individual illegal practices constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election under the common law of elections. The scheme pleaded in relation to the common law of elections relied upon the individual practices (and nothing wider) to constitute the scheme. Apart perhaps from matters related to proof that the result of the election was affected by illegal practices, the alleged scheme does not add anything to the alleged illegal practices that are separately pleaded by the petitioner.
In his opening, the petitioner stated that there was a scheme whereby:
(1)the second respondent offered a bribe at a dinner held on 27 May 2022 at the Ancient Oriental restaurant to the person who gained the most enrolments;
(2)there had been mass enrolment of international students who were otherwise entitled to vote but these students were on some occasions enrolled when they had no intention to vote and in other cases enrolled with no knowledge of the fact that they had been enrolled which involved falsification of their signatures on the enrolment form;
(3)voting packs were taken from the post boxes or other places of delivery of voters without their knowledge or consent or handed by voters to persons requesting that they hand over their voting pack;
(4)at least 57 persons who completed the declaration on ballots did not sign the enrolment form.
That opening is broader than the petition and cannot be used as an independent basis to obtain the relief sought. The scheme, having not been pleaded in the petition, does not comply with s 70 of the Elections Act. The scheme, as articulated in the opening, was not pleaded in the 28 day time period after the conclusion of the election and no extension of time was sought to extend that period to plead the scheme.
The failure to plead the scheme set out in the opening has little practical difference. The individual acts that are alleged to constitute the scheme, if established, provide an independent basis for the relief sought (subject to a finding under s 73 of the Elections Act that they affected the result of the election and a finding that the entitlement of someone to vote in the election was not being called into question under s 72).
Further, the petitioner’s case is, in part, a circumstantial case and he relies upon facts which, if established, support a finding that the Court should find that some other, pleaded act, has taken place. That is, the more probable inference, from a combination of facts, is that some pleaded act occurred. For example, the petitioner submitted that Exhibit P7 was evidence of multiple ballot packs being handled, open ballot packs being handled and ballot packs being passed between agents of the second respondent. The petitioner submitted that other evidence in these proceedings must be considered in light of the evidence comprised in Exhibit P7. The petitioner further submitted that the circumstantial case goes back to the dinner at the Ancient Oriental in May 2022.
I accept that the case of the petitioner is circumstantial and that permits an inference to be drawn from a combination of facts if that is the more probable inference from those facts. In Masters Home Improvement Pty Ltd v North East Solution Pty Ltd,[3] the Court held:
The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.
[3] (2017) 372 ALR 440, [101]; [2017] VSCA 88. See also Carr v Baker (1936) SR (NSW) 301, 306-307.
The petitioner also referred to vote harvesting during the course of the opening. Mr Hou and Mr Hyde also referred to that term during the course of their evidence. In the opening, it was used in the context of referring to the persons who were alleged to have signed the declaration on the voting envelope as not being the persons who signed the application for enrolment. Mr Hou referred to vote harvesting as collecting other people’s ballots without permission. Mr Hou said that he used the term in the context of real estate managers who received the voting papers on behalf of landlords and tenants and did not pass the voting papers on and instead wrongly exercised the vote associated with those papers. There was no evidence supporting that allegation.
Mr Hyde referred to vote harvesting as an active operation to go around and collect the votes and did not necessarily agree that the real estate agent reference was vote harvesting.
The term “vote harvesting” is simply a label and does not add anything to the allegations contained in the petition. The task of the Court is to determine whether the matters complained of in the petition occurred.
The Common Law of Elections
The petitioner has pleaded in paragraph 7 of the petition that the separate conduct alleged in paragraph 5 of the petition constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election in breach of the common law of elections and that the election was invalid on that basis.
The content of the common law of elections was discussed by McHugh J in Sue vHill[4] who held:
There is authority in this and other courts supporting the proposition that at common law an election for a legislature could be set aside if there was no real electing by the constituency or the election was not really conducted in accordance with the laws governing it. Thus, in Woodward v Sarsons (1875) LR 10 CP 733, 743-744] where the Court of Common Pleas had to consider the powers of the election tribunal brought into existence by the Parliamentary Elections Act 1868, Lord Chief Justice Coleridge, speaking on behalf of the Court, said:
"[A]n election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred." (emphasis in original)
[4] (1999) 199 CLR 462, [226]-[237]; [1999] HCA 30.
McHugh J expressed doubt about the application of the common law of elections in light of the relevant commonwealth legislation governing the holding of elections. McHugh J noted the wide powers contained in ss 360(2) and 364 of the Electoral Act 1918 (Cth) (the Commonwealth Electoral Act). Section 360(2) stated that the Court may exercise all or any of its powers on such grounds as the Court in its discretion thinks just and sufficient. Section 364 states that the Court shall be guided by the substantial merits of the case and good conscience without regard to legal technicalities.[5] Sections 71(2) and 71(4) of the Elections Act are in virtually identical terms to those provisions in the Commonwealth Electoral Act. McHugh J held that but for the statutory context, the common law of elections would confer independent and additional grounds to those specified in the Commonwealth Electoral Act to declare an election void. However, McHugh J held that the structure of the Commonwealth Electoral Act and its purpose, allowed an election to be set aside on the grounds of bribery, corrupt practices, undue influence and illegal practices and not otherwise.[6] In reaching that conclusion, McHugh J held that given the terms of s 362 of the Commonwealth Electoral Act, it was distinctly unlikely that a petition could rely on any ground other than breach of the Act or regulations, or bribery, corruption or undue influence as defined by the Act. Section 362 of the Commonwealth Electoral Act provides:
(1)If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void;
(2)…
(3)The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected or declare any election void:
(a) on the ground of an illegal practice committed by any person other than the candidate and without the knowledge or authority or the candidate; or
(b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption;
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.
[5] Ibid, [223].
[6] Ibid, [224].
Gaudron J in Hudson v Lee (No 2)[7] reached the same conclusion as McHugh J did in Sue v Hill and held that there were three reasons why a petitioner could not rely on any ground other than a breach of the Commonwealth Electoral Act or regulations, or bribery, corruption or undue influence as defined by the Act. They were:
(1)Section 362 provides detailed and comprehensive provisions as to the conduct of election;
(2)Section 362 allows for elections to be disputed on the ground of illegal practices. The detail of the Act’s provisions and the width of the definition of illegal practice standing alone are powerful indicators of the exhaustive nature of s 362;
(3)Section 362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding. It would be incongruous if the Court’s powers were entirely at large with respect to matters extraneous to the Act.
[7] (1993) 177 CLR 627, 631.
Each of these three reasons apply to s 73 of the Elections Act. Sections 73(1) and 73(2) of the Elections Act addresses the same concepts as s 362 of the Commonwealth Electoral Act although in slightly different terms.
The application of the common law of elections was also discussed by the Full Court in Featherston v Tully (Featherston).[8] In that case, Bleby J held that there was scope for the continued application of the common law of elections especially where the SA Electoral Act was silent or clearly not comprehensive.[9]
[8] (2002) 83 SASR 302; [2002] SASC 243.
[9] Ibid, [122].
At the time of the decision in Featherston, ss 107(3) and 107(4) of the SA Electoral Act (being the only sections that dealt with the consequences of an irregular act) were clearly not comprehensive or exhaustive. They provided:
(3)An election will not be declared void on the ground of-
(a) A defect in a roll or certified list of electors; or
(b) An irregularity in, or affecting, the conduct of the election
unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity.
(4)An election may be declared void on the ground of the defamation of a candidate but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation.
Bleby J then found that the SA Electoral Act had no counterpart to s 360(2) of the Commonwealth Electoral Act and the structure of that Act and s 363(3) were quite different from the SA Electoral Act and s 107. He therefore concluded that there was nothing in ss 107(3) and 107(4) to displace the inference to be drawn from those subsections that there were other unstated grounds which would justify a Court of Disputed Returns declaring an election void. It follows that those subsections are not exhaustive in stating the practices or grounds upon which a petition may properly be founded.[10]
[10] Ibid, [104]-[107].
That reasoning does not apply to the Elections Act which is in similar terms to the Commonwealth Electoral Act and the detailed provisions which set out when an election may be declared void.
Bleby J went on to hold that the only grounds upon which an election might be declared invalid under the common law of elections was if there was no real election at all or that the election was not really conducted under the requirements of the relevant Act.[11] The first category arises where it can be shown that the electors did not have a free and fair opportunity of electing the candidate which the majority of electors prefer such as where the majority of electors are prevented from recording their vote because of corruption or general intimidation, want of available machinery for voting, by fraudulent counting of votes or false declarations of numbers or other such acts or mishaps.[12] The second category arises where there was a departure by electoral officials from the Act that was so great that there was no election under the existing law.[13]
[11] Ibid, [147].
[12] Ibid.
[13] Ibid, [148].
Doyle CJ in Aldridge v Electoral Commissioner of SA & Ors (Aldridge)[14] held, following Featherston and the subsequent amendment of s 107 of the SA Electoral Act 1985 to include bribery, undue influence and interference with political liberty, that there was less scope for the common law of elections to operate. However, he held it was not necessary for him to make any decision about that issue. Doyle CJ observed that there may be scope for the common law of elections to continue to operate in relation to a collection of individual complaints that, taken together, showed that there had been no real election at all, or the election was not really conducted under the requirements of the Electoral Act.[15]
[14] [2010] SASC 194, [19].
[15] Ibid.
However, even with the amendments, s 107 of the SA Electoral Act is clearly not comprehensive. It makes no reference to illegal practices whereas both the Commonwealth Electoral Act and the Elections Act make express reference. The Elections Act supplants the common law of elections. It would be inconsistent with the Elections Act, for example, if under that Act, the petitioner had to prove that the illegal practices affected the result of the election when there was no such onus under the common law of elections. It follows that the common law of elections does not apply to an election held under the Elections Act.
In the circumstances of this case, the petitioner’s plea in paragraph 7 of the petition invokes the first limb of the common law of elections. The petitioner in paragraph 7 relies upon the same breaches of the Elections Act as giving rise to the contravention of the common law of elections. The plea in paragraph 7 of the petition does not add anything to those individual allegations, as, if established, they are breaches of the Elections Act. The only difference may arise if some of the breaches of the Act are established such that in accordance with the statement by Doyle CJ in Aldridge, there has been established a collection of individual complaints that, taken together, showed that there had been no real election at all or the elections was not really conducted under the requirements of the Act.[16]
[16] Ibid.
However, for the reasons that I have stated, I do not consider that the common law of elections applies to an election conducted under the Elections Act, even to the limited extent described above.
As to the second limb of the common law of elections, the only plea in the petition that invokes this limb is paragraph 6.c.1.5 of the petition which says that scrutineers on behalf of the second respondent were not invited to or provided with the opportunity to be present when the Commissioner undertook the further investigations. This is a plea that is made only in respect of the allegation that the illegal practices affected the result of the election. It is not a plea of an independent basis for impugning the result of the election.
In any event, I do not consider that s 19 of schedule 1 of the City of Adelaide Act (which is relevantly in the same terms as s 47(2) of the Elections Act) requires a scrutineer to be present when the further investigations were conducted by the Commissioner. Section 19 states:
(2) For the purposes of the scrutiny of voting papers for each election or poll, the returning officer will, with the assistance of any other electoral officers who may be present, and in the presence of any scrutineers who may be present—
(a) examine the declarations on all envelopes used for voting (and validly returned) and determine which votes are to be accepted for further scrutiny and which rejected from further scrutiny, rejecting unopened—
(i) any envelope that forms part of a set of voting papers that have been cancelled under this Schedule;
(ii) any two or more envelopes where it appears to the returning officer that the voter has acted in more than one capacity at the particular election or poll;
(iii)any envelope where the voter's name does not appear on the voters roll, unless the voter is voting on behalf of a body corporate or group of persons in accordance with this Schedule, or unless the voter's name has been omitted from the roll in error;
(iv)any envelope where the voter is purporting to be voting on behalf of a body corporate or group of persons, but the returning officer concludes that the voter is in fact attempting to exercise an unauthorised vote;
(v)any envelope where the signature does not, to the satisfaction of the returning officer, correspond with the signature on the application (if any) of the voter for the relevant voting papers;
(b) tear off the extensions to the envelope flaps on the envelopes accepted under paragraph
(c) rearrange the envelopes that no longer bear their tear-off extensions so that the anonymity of voters is maintained;
(d) remove the ballot papers from those envelopes;
(e) if an envelope contains more than one ballot paper and a scrutineer challenges the number of ballot papers contained in the envelope—satisfy himself or herself that the envelope does not contain more ballot papers than the number to which the voter is entitled and, if the returning officer is not so satisfied, return all of those ballot papers to the envelope and reject them from the count;
(f) examine the remaining ballot papers and reject any informal ballot papers;
(g) arrange all unrejected ballot papers into appropriate parcels for counting.
Section 19(2) is directed at the initial scrutiny and assumes scrutineers may be present at the initial scrutiny. Section 19 makes no such assumption and imposes no such requirement in relation to further scrutiny or investigations undertaken by the Commissioner. It follows that there is no basis for submitting that the election was not conducted in accordance with the Elections Act or the City of Adelaide Act. Section 19(2) and ss 47 and 48 of the Elections Act allow scrutineers to be present at the preliminary scrutiny and at the counting of the votes but do not require them to be present at every stage of the process. In any event, the petitioner had been provided with the candidates handbook (Exhibit 1R61) and had thereby been notified of his ability to have scrutineers at relevant times.
Procedure and Evidentiary Framework
Application of the Briginshaw Standard
All parties accepted that the Briginshaw standard applied.[17] The illegal practices complained of by the petitioner are serious offences that provide for a term of imprisonment, if proven in criminal proceedings. All of the contraventions pleaded by the petitioner involve criminal acts. The comments made by Dixon J (as he then was) apply:[18]
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[17] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
[18] Ibid 362-3.
Rich J made similar comments when he held:[19]
In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.
[19] Ibid 350.
The Court of Appeal in SJ Berry Pty Ltd & Anor v McEntee & Anor,[20] held that the Briginshaw standard was concerned with the quality of proof required when a serious matter is to be found. It acknowledges that the degree of satisfaction may vary according to the gravity of the fact to be proved.
Hearsay Evidence
[20] [2022] SASCA 133, [61].
The Court under s 71(3) is not bound by the rules of evidence. Section 71(4) provides that the Court must act in good conscience and the substantial merits of the case without regard to legal technicalities.
In the context of the SA Electoral Act, in Featherston v Tully,[21] Bleby J (with whom Mullighan J) agreed said:
The Court is obliged to act judicially, to apply the requirements of the Act and the common law and to afford all parties and legitimate interveners the principles of natural justice. However, the common law criteria which I consider are applicable, as well as the requirements of s107(3) and s107(4), require a judgment to be made about whether there has been an election at all, whether the statutory electoral procedures have been so abused that there has been no election and whether, in the circumstances stated in s107(3) and s107(4) the result of the election was affected by the relevant defect or irregularity. Without the provisions of s106, some might take the view that the only way of reaching a conclusion on those requirements is to hear evidence from every relevant elector as to their inability to vote, how they would have voted, how they in fact voted or, if the relevant circumstances had been different, how they would have voted. It might be said that at least a sufficient number of such people would have to give evidence in order to reach such a conclusion
Section 106 avoids the need for any such requirement. It means, in the context of this Act, that the Court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgment in all the circumstances. However, the Court's judgment cannot be merely arbitrary. It must still apply the common law principles. In the case of s107(3) and s107(4) it must apply the well known standard of being satisfied on the balance of probabilities that the result of the election was affected by the defect, irregularity or defamation as the case may be.
[21] (2002) 83 SASR 302, [156]; [2002] SASC 243.
It is through the prism of such statements of principle, that the Court must consider what weight should be given to various hearsay statements that are relied upon by the petitioner. The Full Federal Court in Minister for Immigration and Ethnic Affairs v Pochi (Pochi),[22] considered the use of hearsay evidence in a hearing before an administrative tribunal which was not bound by the rules of evidence. At first instance, Brennan J (in his then capacity as President of the Administrative Appeal Tribunal),[23] discussed what evidence the Tribunal should base its decision upon.[24] Brennan J quoted from the decision in R v War Pensions Entitlement Appeal Tribunal: ex parte Bott[25] to the effect that the rules of evidence were designed to produce a body of proof which had rational probative force. Therefore, although the rules of evidence did not apply, they could not be ignored as being of no account. The Tribunal must not act in a way that necessarily disadvantages one party and advantages the other. In other words, although the rules of evidence do not bind, “every attempt must be made to administer substantial justice.” Brennan J held that the statements in Bott’s case showed that the Tribunal was entitled to have regard to evidence which was logically probative whether it was legally admissible or not. Brennan J concluded:[26]
… hearsay has a wide scale of reliability and there is no reason why logically probative hearsay should not be given credence. However, the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.
[22] (1980) 44 FLR 41.
[23] Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482.
[24] Ibid, 492-493.
[25] (1933) 50 CLR 228.
[26] (1979) 36 FLR 482, 493.
Ultimately, Brennan J held that the hearsay evidence given in camera in that case lacked the cogency which would support a finding of fact, in part because the evidence was hearsay and hearsay inevitably lacks the cogency of evidence given by someone who has personal knowledge of the facts to which they have deposed.[27] On appeal, Deane J (with whom Evatt J agreed and Smithers J agreed on this point) held:[28]
There is no general principle of law binding the Tribunal either to the effect that the probative force of information heard in confidential session from which the applicant for review is excluded must be particularly cogent if that information is to be acted upon or to the effect that hearsay evidence inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes. The first of these statements had much to recommend it on the grounds of ordinary fairness and decency. The second has much to recommend it on the grounds of common sense. Neither statement amounts, however, to an overriding principle of law binding, in all circumstances on the Tribunal in the sense that departure from it would necessarily involve error of law on the Tribunal’s part.
[27] Ibid, 512.
[28] Ibid, (1980) 44 FLR 41, 60-61.
Deane J further held that the Tribunal was bound, as matter of law, to act on the basis that the conduct alleged should be established on the basis of rationally probative evidence.
The parties agreed that the weight given to any hearsay evidence and whether it was sufficient to persuade the Court that it should make a particular finding, must be determined separately in relation to each hearsay statement which the petitioner has sought to use. The admissibility and weight given to the hearsay evidence will depend on the nature and cogency of the hearsay evidence and whether it is rationally probative evidence, the disadvantage that a party might suffer by the use of that evidence, the seriousness of the allegation in respect of which it is used and how the allegations may otherwise be proved. Questions of fairness to the parties, whether the admission of the evidence necessarily disadvantages one party and the probative value of the evidence are critical considerations when considering the admissibility and weight to be given to hearsay evidence where the Tribunal, such as the Court in this case, is not bound by the rules of evidence. That accords with the approach taken in Pochi and also the statements made by Bleby J in Featherston v Tully.
I do not accept the submission of the petitioner that all of the hearsay is admissible and that it is just a question of weight to be given to the hearsay evidence. Some hearsay may lack the cogency or reliability that is required to justify its admission. This is not a case where all of the hearsay evidence is admissible.
The Trial
Delay in the Hearing of the Petition
As Doyle CJ observed in Aldridge[29] in relation to the SA Electoral Act, the right to challenge an election is an important individual right and there is a public interest in a proper challenge to the result of an election being dealt with on its merits. In the matter ofHyde (which was a decision made under the Surveillance Devices Act 2016 regarding authorising the use of audio recordings), Kimber J observed:[30]
I am satisfied the proper conduct of an election, including that proper processes are followed with respect to both how persons register to vote and how ballot papers are completed, is a matter in the public interest. As Griffith CJ observed in Bridge v Bowen, ‘the proper choice of representatives at an election is a matter of public interest’.
[29] [2010] SASC 194 at [50]-[51].
[30] [2023] SASC 146 at [55].
It is in the public interest that petitions of this type be heard as expeditiously as possible.
Unfortunately, that was not possible in this case for a number of reasons:
(1)First, the petitioner needed to obtain detailed discovery from the Electoral Commissioner of applications for enrolment and declarations on envelopes on postal voting papers so that an analysis, and comparison, could be undertaken of the signatures and handwriting on the applications for enrolment and the declarations on the envelopes;
(2)Secondly, after the handwriting expert retained by the petitioner, Mr McGinn, had undertaken that analysis and prepared two reports, he suffered a serious illness such that he was not able to give evidence. The petitioner therefore needed to retain a further handwriting expert, Mr Hobden, who subsequently prepared a report and gave evidence at trial;
(3)Thirdly, the Electoral Commissioner obtained a report from a Ms Holt, responding to the reports of Mr McGinn and Mr Hobden;
(4)Fourthly, there became an issue whether the petitioner was entitled to rely on matters that were contained in the revised petition but not in the original petition. The original petition was lodged on 16 December 2022, within the 28 day period after the conclusion of the election as required under s 70(1) of the Elections Act. The revised petition, which included some further allegations, was lodged on 30 March 2023, and was further revised on 26 June 2023, both outside of the 28 day period. The issue was whether the petitioner was entitled to rely upon these new allegations. During the course of the trial, the parties asked the Court to determine, as a preliminary point, whether the petitioner was able to rely upon the further matters contained in the revised petition. After hearing evidence from the petitioner on this preliminary point and submissions from the parties, the Court delivered a judgment in which it held that s 48 of the Limitation of Actions Act 1936 (SA) applied and that in the circumstances, the petitioner was entitled to an extension of time to 26 June 2023 to bring the revised petition;[31]
(5)Fifthly, after the completion of the trial and with judgment reserved, but prior to judgment being delivered, the petitioner brought an application that he be granted leave to re-open the petition. The application to re-open was brought about by the petitioner ascertaining, through a freedom of information request, that the second respondent had forwarded over 500 applications for enrolment to the City of Adelaide;
(6)Sixthly, following a contested argument, the Court found, on 17 April 2024, that the second respondent had failed to make discovery of communications that he had with the City of Adelaide in relation to the enrolment of voters and ordered that the second respondent make discovery of those documents;
(7)Seventhly, the second respondent made discovery of those documents and other documents. After obtaining copies of those documents, the petitioner issued six subpoenas to persons he described as associates of the second respondent and one subpoena to the City of Adelaide. The Electoral Commissioner made some limited further discovery. Many of the documents discovered by the second respondent and produced on subpoena by the associates of the second respondent, were in Chinese;
(8)Eighthly, after obtaining translations of many documents from Chinese into English, the petitioner sought to re-open the petition and tender the further documents discovered by the respondents, the documents returned on the subpoenas and some miscellaneous documents. That application was opposed by the respondents;
(9)Ninthly, on 13 September 2024, the Court ordered that the petitioner be granted leave to re-open his case and tender some, but not all, of the further documents. Ultimately, some 1954 pages of further documents were tendered. There arose a dispute about the translation of some of the documents and the petitioner and the second respondent each called a translator to give evidence about a few documents which were the subject of disputed translations. Both of the translators were subject to cross examination;
(10)Tenthly, the parties made further closing submissions on the new material that had been tendered on the re-opening and the Court reserved its decision on 28 October 2024;
(11)Eleventhly, the Court required further submissions on a particular issue which were made on 14 February 2025.
The Witnesses
[31] Hyde v Electoral Commissioner of South Australia and Anor [2023] SADC 143.
At trial, the petitioner called five lay witnesses and one expert witness (excluding the interpreter to whom I have just referred).
Mr Zhoupeng Hou, known as Mr Simon Hou (Mr Hou), operated a real estate agency, DG Real Estate, and was a successful candidate in the election for the Central Ward. He had previously been a member elected to Council in the 2018 election as a councillor for the Central Ward. At the 2018 election, the petitioner was elected as a councillor for the South Ward and therefore Mr Hou knew Mr Hyde.
Mr Hou gave evidence about some of his experiences relating to the elections and the 2022 election. More critically, he gave evidence about his observations on 27 October 2022 of 2 persons handling a number of ballot packs outside the Vision on Morphett apartment building. Three photographs were taken by Mr Hou’s wife of this encounter (Exhibit P7). Mr Hou also gave evidence about his subsequent observations on the same day of a Mr William Bai and Mr Yingzhuo (Keith) Jin at a nearby restaurant. Mr Hou said that he saw that Mr Jin had a number of ballot packs in his hand. Mr Hou also gave evidence about a conversation that he had with Mr Bai about this matter not long after he made these observations. This conversation was recorded. The recording supports the observations made by Mr Hou of Mr Jin and Mr Bai.
The petitioner submitted that at least to some extent it was against the interests of Mr Hou to support the petitioner as he was also a successful candidate at the election for Central Ward and would therefore face a further election if the petition was upheld and a new election conducted. That said, Mr Hou knew, and had been a colleague of, Mr Hyde in the previous council and their interests often aligned. I do not accept that it was against his interests to give evidence.
Senior counsel for the Electoral Commissioner did not suggest that Mr Hou was dishonest but submitted that there were some attitudinal problems with his evidence and that he was prone to editorialising. Counsel for the second respondent submitted that there were real questions as to the credibility and reliability of Mr Hou.
Mr Hou was argumentative at times, particularly during cross-examination and frequently expressed frustration. I am conscious of cultural differences and that English was not his first language. I consider that Mr Hou was an honest witness and that his most crucial evidence, that concerning the photographs (Exhibit P7) and his observations of Mr Jin and Mr Bai and his subsequent conversation with Mr Bai were supported by objective evidence. I accept that Mr Hou was honest and reliable when giving evidence about matters that he observed. Mr Hou was on occasions, prone to jump to conclusions about the reasons underlying observations that he made. These were matters of speculation and I do not place weight upon them. I accept also that Mr Hou was also defensive in relation to his motivations or views that he may have held at certain times. Again, I do not place reliance on these matters as they do not assist in determining the matters alleged in the petition.
Mr Oscar Zi Shao Ong is a PhD student at the University of Adelaide in mechanical engineering. He has been active in student politics and in international student affairs since his arrival in Australia in 2016. He has been president of the Adelaide University Union, national president for the council for international students, Australia and until March 2024, a member of Adelaide University Council. He gave evidence about a dinner at the Ancient Oriental Restaurant in which he said that the second respondent offered a bribe to him and other student leaders in relation to the election. He also gave evidence about some other meetings he attended and in particular a post AGM meeting where he observed a Mr Robert Zhu having a large number of enrolment forms and a Study Adelaide event where he had a discussion with a Mr Trinity Zhang about certain conduct that Mr Zhang said that he had undertaken during the course of the election.
Mr Ong was an intelligent witness who answered questions carefully and would make appropriate qualifications or concessions. I accept him as a witness who was honest and was trying to assist the Court. I consider that Mr Ong downplayed his relationship with Mr Hyde and his involvement in the election. The petitioner submitted that such a conclusion should not be drawn and that Mr Ong had freely admitted in cross-examination that he had a long working relationship with the petitioner as the student representative council general secretary, working on international student issues. Mr Ong did not admit to frequent communications with the petitioner. The evidence from Mr Ong’s mobile phone indicated more frequent communications. Mr Ong’s evidence was that his involvement with the petitioner was mainly of a work nature when the communications indicated that it was a wider relationship that dealt with political matters.
Text messages of Mr Ong also indicated that Mr Hyde reviewed a draft statement of Mr Ong on 6 December 2022. That again demonstrates the close relationship between Mr Ong and Mr Hyde. I do not accept that it demonstrates any collusion between them or that Mr Hyde asserted improper influence on Mr Ong in relation to the contents of his evidence. The evidence given by Mr Ong related to matters of which Mr Hyde had no involvement.
Mr Ong was not a volunteer who assisted Mr Hyde in his campaigning. However, he provided Mr Hyde with information about the integrity of the election and about complaints that had been made about the election. Mr Ong was communicating with Mr Hyde about the exclusion of ballots from the count as a result of the investigation by the Electoral Commissioner. Mr Ong knew that Mr Hyde was a member of the Australian Liberal Party. Mr Hyde currently works at the divisional headquarters of the Liberal Party and has been involved in Liberal Party politics for some time. Mr Ong was a member of the Young Liberals. Mr Ong came to learn that Mr Hyde was challenging the validity of the election and discussed with him the need for Mr Ong to give evidence.
However, contrary to the submission of the second respondent, the relationship between Mr Ong and the petitioner, does not cause me to doubt his credibility or find that his evidence was generally unsatisfactory. I do not consider that because of his relationship with the petitioner, the Court should find that Mr Ong was not a credible witness and that he told deliberate falsehoods. I also do not consider that the reliability of his evidence is diminished because of his relationship with the petitioner. The evidence given by Mr Ong, including in particular concerning his conversation with Mr Trinity Zhang at the Study Adelaide event, was clear and did not involve any element of reconstruction on the part of Mr Ong.
Mr Shengbao Ma (known as Colin Ma), a journalist with Voice of America, gave evidence about a meeting that he had with a Mr Vincent Weng and the second respondent on 13 May 2022. He said at that meeting the second respondent asked him to help Chinese people enrol on the Council’s supplementary election roll. Mr Ma also gave evidence about a further conversation that he had with Mr Weng on 10 November 2022. The second respondent was not present at that meeting. The meeting was recorded by Mr Ma. Apart from matters of interpretation, there is no dispute therefore about the contents of that meeting.
Mr Tian Par Lim, a property investor, gave evidence about WeChat communications that he had with a Ms Miranda Li (no relation to the second respondent). The communications largely speak for themselves and there was little controversy regarding his evidence. I accept Mr Lim as an honest witness.
Mr Hyde himself gave evidence. He was an honest witness who was careful in answering questions in cross-examination. Mr Hyde gave some evidence about the election process. He gave evidence about two substantial matters: first, his observations about voting packs when visiting apartment blocks during the course of the election; and secondly, the complaints he made to the Electoral Commissioner. Other than those matters, Mr Hyde was the person to whom others provided information which he relayed to the Electoral Commissioner.
The petitioner called Mr Hobden as a handwriting expert to give an opinion on the signatures and handwriting on enrolment forms and declarations on ballot papers. He was a well-qualified expert and I accept his opinions. His opinions, in the main, accorded with the opinions of Ms Holt, the handwriting expert engaged by the first respondent.
Ms Holt did not examine the individual signatures on the application forms and declarations on the ballot papers. Her report dealt with methodology associated with handwriting, the limitations of any comparisons that might be made and the nature of the opinions that might be expressed. Ms Holt was a well-qualified expert whose opinions I also largely accept. I set out in my reasons where I prefer the opinion of one expert over the other on a particular issue.
The Electoral Commissioner, Mr Michael Sherry, gave evidence. Mr Sherry gave evidence about the election process, the voting in this election and the complaints his office received about this election and how they were investigated by his office. I accept the evidence of Mr Sherry. The petitioner criticised the investigation conducted by the Electoral Commissioner as inadequate. I do not accept that criticism. In my view, the investigation by the Commissioner was adequate and appropriate. In any event, the adequacy of the investigation by the Electoral Commissioner was not the relevant issue in this petition: irrespective of what the Electoral Commissioner may have found, the relevant issue is whether the Court finds on the balance of probabilities that there have been illegal practices committed during the election and if so, whether those illegal practices affected the result of the election.
On the re-opening, the petitioner called an interpreter, Weizhong Chen, who had translated the further documents that had been discovered by the second respondent or produced on subpoena. The second respondent also called an interpreter, Mengchang Shi, to give evidence about a few of those documents where there was a dispute about the translation or the nuance of the translation. Both interpreters were well qualified and impressive witnesses. I will discuss the particular documents where there is a dispute between them as to the correct translation later in these reasons, insofar as it is relevant.
The second respondent did not give evidence, nor did he call any other witness except for the interpreter.
Jones v Dunkel
I consider that the rule in Jones v Dunkel[32] has application. That rule states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated at p 312:
In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.
Kitto J stated at p 308:
It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched.
[32] (1959) 101 CLR 298; [1959] HCA 8.
Davies A-JA (dissenting on the facts) in Ho v Powell[33] explained the principle as follows:
The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), Handley JA and Beazley JA said: '... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default.
[33] (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168.
Austin J in Australian Securities & Investments Commission v Rich[34] indicated that there are three conditions for the application of the principle:
1.the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence);
2.his evidence would elucidate a particular matter, which is a live matter at the trial; and
3.his absence is unexplained.
[34] (2009) 75 ACSR 1 [449]; [2009] NSWCA 1229.
The onus of establishing the unavailability of a witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.[35]
[35] Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1 [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573.
The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd (Kuhl):[36]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted]
[36] (2011) 243 CLR 361; [2011] HCA 11 [63].
As senior counsel for the petitioner submitted, the second respondent cannot contend that he had a good reason not give evidence because his answers might incriminate himself. In Accident Insurance Mutual Holdings Ltd v McFadden,[37] Kirby P (as he then was) held that the proper procedure in a claim for privilege is to object to each question as it is asked and that it is not proper to refuse to be sworn in or to decline to answer any question at all or to claim a global protection by reason of the privilege. It is for the judge to determine whether the objection to answer a question is good on the ground that the answer would tend to incriminate the witness. Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v Australian Meat and Live-Stock Corporation[38] stated the principle in similar terms (in relation to the obligation to provide discovery and answer interrogatories), although emphasising that this should not be seen as a rule of law. However, the circumstances must be exceptional to warrant an excuse in limine from the obligation to object to particular questions on the grounds of self-incrimination.
[37] [1993] 31 NSWLR 412, 423.
[38] (1979) 42 FLR 204, 210-211.
The second respondent did not attempt to comply with the principles to which reference has been made. The second respondent did not go into the witness box and therefore did not even make a global objection to questions. In these circumstances, I do not consider that the failure of the second respondent can be excused on the grounds that his answers may incriminate him. It is not for the second respondent to arrogate for himself the role of the court in making such a determination.
The second respondent further submitted that the inference should not be drawn because the petitioner’s allegations involved criminal conduct on the part of the second respondent and others. For the proposition that the Jones v Dunkel inference has little work (if any) to do in the case of a criminal prosecution, the second respondent relied upon the decisions in Azzopardi v R[39] and Dyers v R.[40] That principle is not controversial. These proceedings however were not criminal proceedings. The second respondent also relied upon the decision of White J in Australian Securities and Investments Commission v Sigalla (No 4) (Sigalla)[41] as support for the principle that there was doubt whether the Jones v Dunkel inference could be drawn where the allegations involved criminal conduct on the part of the second respondent and others alleged to have been his accomplices. Sigalla was a case of contempt which White J found to be criminal proceedings under the relevant NSW Act and rules. Although White J said that even if they were civil proceedings (contrary to his finding that they were criminal proceedings), the proceedings were essentially criminal in nature such that the safeguards of criminal procedure should apply.
[39] (2001) 205 CLR 50.
[40] (2002) 210 CLR 285.
[41] (2011) 80 NSWLR 113, [87].
However, the relevant proceeding in that case was a proceeding for contempt and that is a different type of case from the petition in the present case. If he wished to claim the privilege, the second respondent could have gone into the witness box and made such a claim. The Court would then have adjudicated on that claim. Some of the matters in the petition do not necessarily involve the petitioner and concern those acting on his behalf (with or without his authority). The matters pleaded in paragraph 5.e to 5.g of the petition that 73 identified voters made false declarations do not, on their face, refer to conduct of the second respondent.
In all of these circumstances, I do not accept the submission of the second respondent that there is no room for the application of a Jones v Dunkel inference in this case. The rule in Jones v Dunkel also applies to the failure of the second respondent to give evidence.
That does not mean that the application of the inference can be used to overcome a deficiency in the evidence or convert conjecture and suspicion into evidence (see Jones v Dunkel (above) and also Adler v Australian Securities and Investments Commission: Williams v Australian Securities and Investments Commission).[42]
[42] (2003) 179 FLR 1; [2003] NSWCA 131, [649].
The petitioner also submitted that the Jones v Dunkel inference was relevant to the second respondent’s failure to put in context some of the messages that were produced on the re-opening application where those messages, on their face, constituted statements of illegal conduct or were matters that would support findings of illegal conduct. I do not consider that this is a matter for the application of the rule in Jones v Dunkel. The Jones v Dunkel inference cannot be used as a substitute for a deficiency in the evidence. The task of the Court is to construe the documents and determine the meaning of those documents. The Court is not able to speculate on what other messages, not produced, may have said. I also do not consider that the Jones v Dunkel inference is relevant to the submission by the petitioner that the messages are incomplete. Again, the documents themselves may suggest that such an inference can be made. If they do not, then the Jones v Dunkel inference cannot be used to somehow elevate that insufficient proof.
Further, I do not accept that the rule in Jones v Dunkel has any application in determining whether the second respondent should be found to have not made proper discovery. I found in the course of the re-opening application, that the second respondent had failed to discover all records and communications between the second respondent and the City of Adelaide relating to enrolment forms and all records and communications, including electronic WeChat messages, relating to the application forms. The second respondent discovered those documents following an order of the Court that was made on 24 April 2024. The second respondent was not cross-examined on the affidavit that he swore in relation to the provision of that further discovery. In those circumstances, I do not consider that the second respondent could reasonably have been expected to give evidence about further discovery such that the rule in Jones v Dunkel was engaged.
The petitioner relied upon further WeChat communications between the second respondent and Mr Jin in October 2022 (Exhibit P73, pp 1357 and 1358). These communications provide circumstantial evidence of Mr Jin assisting the second respondent during the course of the election. I do not consider that these communications provide circumstantial evidence that the second respondent was involved in illegal practices. There is no admission by the second respondent that he did so. Although some of the responses by the second respondent to the discovery of an illegal practice being conducted by an unknown third party are perhaps unusual, they do not provide evidence of the second respondent himself being involved in illegal practices. I do not consider that the communications corroborate the evidence of Mr Ong as to Mr Trinity Zhang’s actions or Mr Hou and the photographs (Exhibit P7). The communications refer to events occurring at different times. However, the communication does provide evidence of the involvement of Mr Jin in illegal practices. In response to a message from the second respondent on 19 October 2022 that someone was collecting from Vision on Morphett, Mr Jin replied “He/She took all of our ballot papers away saying that he/she was your assistant.” That message provides evidence that Mr Jin had collected various ballot papers and then handed them to another person who he believed was connected to the second respondent.
The petitioner referred to communications from a group known as the Youth Campus Group (Exhibit P73, p 1359). These communications go no further than confirming that there was a dinner at the Ancient Oriental, a matter not in dispute.
The petitioner referred to further WeChat communications between the second respondent and Mr Jin in May-July 2022 regarding applications for enrolment (Exhibit P74, pp 1433, 1434, 1438, 1443 and 1445-1447). Those communications provide evidence that Mr Jin was assisting the second respondent during the application for enrolment process but do not provide evidence that the second respondent engaged in some form of illegal practices. Again, the petitioner may have suspicions about the communications but that is not sufficient. The communications are consistent with attempts to encourage and facilitate persons to enrol.
The petitioner referred to communications between the second respondent and Mr Jin in October and November 2022 (Exhibit P74, pp 1455-1458). These communications demonstrate that Mr Jin was assisting the second respondent during the course of the election and may be used as evidence of that issue. The communications do not provide evidence that the second respondent was himself involved in illegal activities, although some of the responses by the second respondent might be considered unusual.
These communications (pp 1455-148) provide evidence of the involvement of Mr Jin in illegal practices. In response to a message from the second respondent about the investigation by the Electoral Commissioner and a question by the second respondent that they all elected him voluntarily, Mr Jin replied that he had a “few ballots from international students. If there were any, they were all signed by themselves” The response indicates that Mr Jin at some time, had been provided with ballot papers. This response is a circumstantial fact relevant to the proof of the allegation that Mr Bai handed ballot papers to Mr Jin.
The petitioner referred to WeChat communications between the second respondent and Mr Trinity Zhang (Exhibit P75). There are a series of communications between the second respondent in July 2022 in relation to applications for enrolment (pp 1487-1490). Those communications demonstrate that Mr Zhang was assisting the second respondent in that period.
There are further communications in October and November 2022 (pp 1494-1495) that also demonstrate that Mr Zhang was assisting the second respondent in the course of the election. I have already made findings in relation to these communications.
Mr Bai, on the return of his subpoena stated he no longer possessed communication records (Exhibit P76, p 1539) between him and the second respondent regarding the election. The letter went on to say that he had very limited communications with the second respondent regarding the election other than some brief communication regarding enrolment of several legitimate voters. It is not possible to conclude how extensive the communications were between Mr Bai and the second respondent. Those communications produced by the second respondent include some messages between May 2022 to July 2022. It is evident from these communications that they are not a complete record. It is also evident from the communications that the second respondent asked Mr Bai to assist with the enrolment of tenants of buildings that he managed and that Mr Bai provided that assistance.
Breaches of the Common Law of Elections
The petitioner also pleaded in the petition that the separate acts relied upon, individually or collectively, constituted a coordinated scheme to illegally affect the outcome of the election. The individual acts relied upon are all contraventions of the Elections Act. In those circumstances, in accordance with the decisions in Featherston and Aldridge, there is no room for the common law of elections to apply to those individual acts.
I have also found that the common law of elections does not apply to an election conducted under the Elections Act, even to the limited extent described in Aldridge, namely a collective group of individual acts.
Affect of the Illegal Practices on the Result of the Election
Section 73 of the Elections Act provides:
(1)The Court cannot declare an election void, or that a candidate returned as elected was not duly elected, on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the illegal practice.
(2) If an illegal practice under section 57, 58 and 59 is found by the Court to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities.
The second respondent has not been found to have had offered a bribe.
The Court has found the following contraventions of the Elections Act have occurred:
·Contraventions of ss 61(1) and 61(4) by the persons in the black jacket and blue jumper on 27 October 2022 (Exhibit P7);
·Contraventions of ss 61(1) and 61(4) by Mr Bai and Mr Jin on 27 October 2022;
·Contravention of s 61(4) by Mr Trinity Zhang;
·Contraventions of ss 58(1), 64(1) and 64(2) in relation to the 16 instances of contraventions;
·Contraventions of s 58(1), s 64(1) and s 64(2) by Mr Zhang collecting unfilled ballot papers from apartments and subsequently filling them in them or arranging for them to be completed;
·Contraventions of ss 58(1), 64(1) and 64(2) in relation to the 5 ballot papers being handled by the persons in the black jacket and blue jumper on 27 October 2022 (Exhibit P7).
No finding of bribery was made. However, a finding has been made that persons had dishonestly exercised a vote at an election to which they were not entitled contrary to s 58(1) of the Elections Act. That finding was made in relation to the 16 persons identified above and in relation to Mr Zhang collecting unfilled ballot papers from apartments and in relation to the conduct of Mr Zhang and the persons shown in the black jacket and blue jumper in Exhibit P7.
It is not readily apparent why a contravention of s 58(1) will be presumed to have affected the result of the election. It may be that in the case of a contravention of s 57 (a bribe) or s 58(2) (dishonesty influencing or attempting to influencing the result of the election), the impact or consequences of the contravention may be widespread and difficult to prove, hence the need for the presumption. In the case of a contravention of s 58(1), the impact is more ascertainable. A further rationale for the presumption may be the seriousness that the legislature views a contravention of s 58.
In the present case, if the finding of the breach of s 58(1) was limited to the 16 instances of contravention and the 5 ballot papers being handled by the persons in Exhibit P7, the consequences of the individual breaches of s 58(1) are identifiable. Therefore, although the presumption applies, on the evidence before it, the Court would be satisfied, on the balance of probabilities that the particular breach of s 58(1) does not, by itself, lead to the conclusion that the result of the election had been affected. By the nature of the breaches, only one vote has been dishonestly exercised in relation to each contravention. In such a case therefore, the presumption has been displaced. The Electoral Commissioner and the second respondent would need not to adduce evidence to rebut the presumption, as the contrary would have been proved by the evidence of the circumstances in which the contravention occurred. Those circumstances would include the number of votes which have been identified as having been dishonestly exercised.
However, the breaches of s 58(1) went beyond the 73 identified voters (in respect of which the Court found 16 instances of contravention) and the 5 ballot papers handled by the persons in Exhibit P7, by reason of Mr Zhang collecting unfilled ballot papers. The petitioner submitted that the presumption in s 73(2) should operate in respect of the s 58(1) contravention because the Court has found that further forgeries (and therefore dishonest exercise of votes) occurred by Mr Zhang collecting unfilled ballot papers from student apartments. The number of ballot papers so collected by Mr Zhang was not identified.
The inference that arises from the collection by Mr Zhang of the unfilled ballot papers is that he would complete the ballot papers and thereby exercise the vote in respect of those papers. Mr Zhang and others acting on behalf of the second respondent (with or without his authority) had collected applications for enrolment for voters which they had provided to the second respondent. Those acting on behalf of the second respondent, including Mr Zhang, had access to the personal details of the voters. In these circumstances, the presumption applies and the breach will be presumed to have affected the result of the election unless the contrary is proved on the balance of probabilities. The respondents did not adduce any evidence to the contrary.
Therefore, considering the totality of the contraventions of s 58(1) comprising the 16 instances of contravention, the 5 ballot papers handled by the person in Exhibit P7 and the unascertained number of ballot papers collected and filled in by Mr Zhang, the presumption applies. Accordingly, the Court finds that the illegal practice, namely the dishonestly exercising a vote at an election affected the result of the Central Ward election.
Although not strictly necessary to do so given my finding concerning the breach of s 58(1), I will now consider the individual breaches of the Elections Act which have been found to have occurred and whether they affected the result of the election.
Senior counsel for the Electoral Commissioner submitted that under s 73(1) it was Parliament’s intention that the Court must be satisfied that the individual illegal practice affected the outcome of the election, not that a number of practices in cumulation did so. The Electoral Commissioner referred to the definitive article “the” in s 73(1) as supporting that contention.
There are cases where the use of the word “the” may indicate a deliberate choice by the legislature to limit the subject matter to the singular.[57] However, that is not the case under s 73(1). I have formed this view for four reasons. First, the structure of s 73 does not suggest that the effect of each breach should be considered separately. In the second sentence of s 73, the use of the phrase “an illegal practice” does not suggest that the practice is limited to the singular or individual breach. The use of “the illegal practice” at the end of s 73 is a reference back to the illegal practice or illegal practices referred to in the second line, rather than indicating an intention to limit the enquiry to a singular illegal practice. Secondly, the clear purpose of the Elections Act is to provide a remedy which includes declaring the election invalid where it has been established that contraventions of the Elections Act has occurred that affect the result of the election. That purpose would be undermined if contraventions that were established had to be considered in isolation. Thirdly, multiple breaches of a section of the Elections Act (e.g. of s 61 or s 64) might be said to give rise to separate breaches of the Act. Fourthly, s 10 of the Legislation Interpretation Act 2021 states the singular to include the plural and thereby requires the Court to construe “an illegal practice” in s 73(1) as “illegal practices”. Therefore, the aggregate of the breaches must be considering in determining whether the election result has been affected by the contraventions.
[57] See Tamaj v Victorian Civil and Administrative Tribunal (2003) 9 VR 154,[44]; [2003] VSCA 113 but see also [45] where the Court found that the singular must be taken to include the plural.
The petitioner must therefore establish on the balance of probabilities that the illegal practices that the Court has found to have occurred have affected the result of the election. That is a matter of inference. The petitioner submits that the inference can be drawn that the votes that were comprised in the 16 instances of contravention and the acts that were the subject of the illegal practices were cast in favour of the second respondent and would not have been cast at all but for the illegal practices and the coordinated efforts of the second respondent and his supporters.
The Electoral Commissioner and the second respondent contended that the fact that the second respondent had submitted the enrolment forms was not a sufficient reason to conclude that those persons voted in favour of the second respondent. The Commissioner further submitted that under the Elections Act, the election is conducted as a secret ballot. The Elections Act also permitted, and did not make illegal, encouraging persons to enrol to vote. The combination of these matters, it was submitted, meant that the Court should exercise care before concluding that a person voted in favour of a candidate who encouraged or assisted them in enrolling to vote.
Many of the matters relied upon by the petitioner in paragraph 6 of the petition do not provide a factual basis from which an inference might be made that the particular voter cast their vote in favour of the second respondent. For example, the fact that the number of persons enrolled in the Central Ward increased markedly from the previous election does not provide any basis that a particular person voted in favour of the second respondent. There was no evidence that the person to whom voting packs were issued and who are set out in Appendix A to the petition were international students or citizens of the People’s Republic of China. There was no evidence that landlords of apartment buildings were involved in ensuring that votes were cast in favour of the second respondent.
The structure of the Elections Act supports the general proposition that encouraging or facilitating a person to be enrolled, is not a sufficient reason, by itself, to conclude that that person, if they voted in the election, voted for the person who so encouraged them. However, that encouragement is not the sole basis in the present case for considering the question of how the person voted and the subsequent question as to whether the result of the election was affected. In these proceedings, these questions cannot be divorced from the evidence relating to, and circumstances of, the contraventions of the Elections Act that the Court has found to have occurred.
Mr Jin and Mr Bai, the persons in Exhibit P7 and Mr Zhang were acting on behalf of the second respondent when they engaged in conduct that contravened the Elections Act and thereby committed illegal practices. The inference is that they did so, not for their own benefit, but to secure votes for the second respondent in the election for the Central Ward. The circumstances of the contraventions give rise to the inference that the votes in which the ballot papers had been collected by them or were in their possession for a particular reason, namely, to be returned with votes cast in favour of the second respondent.
Therefore, the Court finds that in respect of the 10 ballot papers being handled by Mr Jin and Mr Bai, the 5 ballot papers being handled by the persons in Exhibit P7 and the number of ballot papers collected by Mr Zhang, the votes from those ballot papers were cast in favour of the second respondent. Those persons were all acting on behalf of the second respondent. Their possession of the ballot papers was in contravention of the Elections Act. They had been collected from voters on behalf of the second respondent (with or without his authority) for the obvious purpose of sending them to the Returning Officer.
In relation to the 16 instances of contravention, the inference is that those votes were cast in favour of the second respondent. The following facts give rise to this inference:
(1)Mr Zhang had collected unfilled ballot papers on behalf of the second respondent;
(2)Mr Bai, Mr Jin and the persons in the blue jumper and black jacket in Exhibit P7, had acted on behalf of the second respondent and had in their possession ballot papers to which they had no entitlement, which suggested a coordinated scheme to secure votes for the second respondent. The Court has found in relation to Mr Zhang and the persons depicted in exhibit P7, that the ballot papers had been filled in by persons other than those entitled to vote;
(3)The second respondent had engaged in a co-ordinated scheme to enrol voters and had engaged a number of persons to assist in doing so;
(4)Mr Bai, Mr Jin and Mr Zhang were persons who, on behalf of the second respondent, participated in the scheme to enrol voters;
(5)The second respondent submitted over 500 applications for enrolment including the application forms in relation to the 16 instances of contravention. In 7 of the 16 instances, a postal address was included in the application for enrolment that was different from the residential address of the applicant;
(6)The second respondent, through persons acting on his behalf, was involved in arranging for the applications for enrolment of the 16 persons to be completed and submitted to the City of Adelaide and in fact, such persons, witnessed the applications;
(7)In relation to the 16 instances of contravention, the Court has found that there had been a dishonest exercise of the vote contrary to s 58(1); and persons other than those entitled to vote and filled in the ballot papers
(8)Persons acting on behalf of the second respondent had engaged in the collection of ballot papers;
Where the second respondent has sent emails to the City of Adelaide enclosing enrolment forms in respect of the 16 instances of contravention, it can be inferred from the matters set out above that persons acting on behalf of the second respondent have actively participated in the enrolment of that person and that was done for the purpose of ensuring that the vote in respect of that person was not made by that person and was exercised in favour of the second respondent.
Senior Counsel for the Electoral Commissioner submitted that even if contraventions of s 61 of the Elections Act had been found to have occurred in relation to the five ballots in the hands of the two unidentified men who were the subject of Exhibit P7 and the 10 ballot papers in the possession of Mr Bai and Mr Jin, this was not sufficient to change the outcome of the election. I have already expressed my view that any such contravention should not be considered in isolation and must be considered cumulatively with the other contraventions that the Court has found to have occurred.
The Court makes the following findings in relation to the contraventions that have found to be established:
(1)The persons in the black jacket and the blue jumper in Exhibit P7 were acting on behalf of the second respondent. The person in the blue jumper was shown to be accepting and reviewing ballot papers. The person in the black jacket handed ballot papers to the person in the blue jumper. There was no proper reason for them to have those ballot papers. The more probable inference from those facts was that the person in the blue jumper was in possession of the ballot papers and reviewing them for the purpose of checking that votes had been cast in favour of the second respondent, before the ballot papers were sent to the returning officer. The five ballot papers were in the possession of the person in the blue jumper and the black, and he was acting as an assistant to a person voting in the election. These matters constituted an illegal practice under the Act. I therefore find that the probable inference in respect of this illegal practice, is that these 5 votes were cast in favour of the second respondent;
(2)Mr Bai and Jin were acting on behalf of the second respondent. Mr Jin accepted 10 ballot papers from Mr Bai on 27 October 2022 at the Stonemill Restaurant outside the Vision on Morphett Apartments. As stated previously, the ballot papers in respect of the 16 instances of contravention were not sent to voters at Vision on Morphett. The more probable inference therefore is that the 10 ballot papers did not form part of the 16 instances of contravention. There was no proper reason for Mr Jin to have those ballot papers or for Mr Bai to hand them to him. The more probable inference from those facts was that Mr Jin was in possession of the ballot papers acting on behalf of the second respondent and to submit those ballot papers to the returning officer. The more probable inference from these facts is that the votes were cast in favour of the second respondent. I therefore find that in respect of this illegal practice, 10 votes were cast in favour of the second respondent;
(3)Mr Trinity Zhang was acting on behalf of the second respondent when he knocked on apartment doors and collected unfilled ballot papers. Mr Zhang and others acting on behalf of the second respondent had obtained applications for enrolment forms from voters and therefore had the means to know of their personal details. As he was acting on behalf of the second respondent, the more probable inference was that he would cast the vote from these unfilled ballot papers in favour of the second respondent. It not possible from the evidence to be precise as to the number of votes from this illegal practice to have been cast in favour of the second respondent, but I have found that at least a number of votes were cast in favour of the second respondent. I therefore find that in respect of this illegal practice, a number of votes were cast in favour of the second respondent;
(4)In respect the 16 instances of contravention, an illegal practice had occurred in that there had been a knowing false declaration made in a material respect or a person had dishonestly exercised a vote. In each of these cases, the Court has found that the more probable inference from these facts were that the votes were cast in favour of the second respondent.
It follows from the findings that I have made, that I am satisfied on the balance of probabilities that more than 24 votes were cast in favour of the second respondent where there had been illegal practices. I am also satisfied that on the evidence before the Court, the more probable inference is that these votes would not have otherwise been cast. It follows that I am also satisfied on the balance of probabilities that the result of the election was affected by the illegal practice, given that the margin in the election was 24 votes.
Orders
The Court has found that there have been illegal practices and that those illegal practices affected the result of the election. It follows that the petitioner has made out some of the matters that have been alleged in the petition. In his petition, the petitioner has sought an order that the election for the Central Ward of the City of Adelaide Council held in October and November 2022 and declared on 18 November 2022 be declared void. The petitioner has also sought a declaration that Carmel Noon, Zhoupeng (Simon) Hou, David Elliott and Jing Li were not duly elected in the election. Under s 71(1) of the Elections Act, the Court has the power to make such declarations. In NSW Electoral Commissioner v Kempsey Shire Council (No 2),[58] Beech-Jones CJ at CL (as he then was) considered what orders should be made in the circumstances of that case and whether it was appropriate that orders be made declaring the election of particular councillors void. In NSW Electoral Commissioner v Kempsey Shire Council (No 3),[59] the Court ultimately made such orders.
[58] [2022] NSWSC 282.
[59] [2022] NSWSC 409, [14].
However, before making formal orders, the parties should have the opportunity to make submissions as to the appropriate orders to be made and any order as to costs.
Conclusion
For the reasons that I have expressed, the Court finds that illegal practices have occurred which have affected the result of the election.
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