Kalsakau v Principal Electoral Officer [2013] VUSC 99; Election Petition Case 20 of 2012 (26 July 2013)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Election Petition Case No. 20 /2012

BETWEEN:

ALATOI ISHMAEL KALSAKAU
Petitioner

AND:

PRINCIPAL ELECTORAL OFFICER
First Respondent

AND:

RALPH REGENVANU
Second Respondent

AND:

EDWARD NIPAKE NATAPEI
Third Respondent

AND:

TONY WRIGHT
Fourth Respondent

AND:

MOANA CARCASSES
Fifth Respondent

AND:

PATRICK CROWBY
Sixth Respondent

AND:

WILLIE JIMMY
Seventh Respondent

Hearing: 8,9,10,11,12,17 & 18 July, 2013

Before: Justice RLB Spear

In attendance: Avock Godden and Justine Ngwele for the Petitioner
Robert Sugden for the First Respondent
Christina Thyna for the Second and Third Respondents
Ronald Warsal for the for the Fourth and Sixth Respondents
Nigel Morrison for the Fifth Respondent
Saling Stephens for the Seventh Respondent

Judgment: 26 July 2013

JUDGMENT
Recalled and reissued on 13 August 2013 to correct errors in the numbering of paragraphs

1. On 30 October 2012, national parliamentary elections took place throughout Vanuatu. This petition challenges the outcome of the election for the six available seats for the Port Vila Constituency. The second, third, fourth, fifth, sixth and seventh respondents were the six successful candidates. Mr Kalsakau, the petitioner, was ninth in the poll for Port Vila and accordingly he was unsuccessful.
   
2. Section 54 of the Representation of the People Act [Cap.146] provides that the validity of any election to Parliament may be questioned only by a petition brought before the Supreme Court for that purpose under that Act.
   
3. Mr Kalsakau is entitled to present a petition not only because he was registered to vote (and did indeed vote) in the Port Vila Constituency but also because he was a candidate in that election – s. 55.
   
4. This petition is presented in two separate parts.
   
5. The first part is a challenge to the validity of the entire Port Vila election which saw the second to seventh respondents elected as members of Parliament. That challenge can be considered effectively as a challenge to the processes employed by the Principal Electoral Officer (PEO) in respect of the Port Vila Constituency. It is only for that reason that Mr Regenvanu, Mr Natapei and Mr Jimmy have been joined as respondents. No allegations of corrupt electoral practices have been made against them.
   
6. The second part alleges corrupt electoral practices on the respective parts of Mr Wright, Mr Carcasses and Mr Crowby. Accordingly, while those three respondents are of course subject to the jeopardy presented by the primary challenge made to the entire Port Vila election, they face separate and individual complaints which place their respective election to Parliament at risk.
   
7. In relation to the first thrust of the petition, the challenge to the validity of the Port Vila election as to all six seats, the operative petition detailed the basis for that challenge as follows:-
   
   1. "The first respondent failed to ensure that the posters displayed by the candidates were of like nature to the polling station.
      
   2. The first respondent failed to ensure there was amble opportunity provided for all members of the Constituency to attend the polling station for registration to cast their vote.
      
   3. The first respondent failed to ensure a free and fair basis for the electors of Port Vila to freely attend and cast their votes:-
      

Particulars

1. The Police were utilised to conduct body searches upon the electors.
   
2. The first respondent failed to provide sufficient lighting within each polling booth to enable the electors to properly visualise the polling cards that would enable them to properly cast their votes.
   

100. The polling photos of the candidates were inadequate in size to enable a proper reflection on the elected choice.
     

4. The polling photos were affixed together in such a way unlike in the past that did not enable the electors to properly assess their candidate.
   
5. The first respondent permitted in error that prevalence of duplicate voting.
   
6. The first respondent permitted in error persons to vote not only actually but also on a proxy basis."
   

8. The challenge to the election of Tony Wright is detailed in the petition as follows:
   

"12 The fourth Respondent Tony Wright committed acts of bribery and or treating during the campaign period certified by the First Respondent in accordance with the Representation of the Peoples Act [CAP 146] as amended:

Particulars

1. By himself handing out money for kava after a campaign at seaside Tongoa on or about the 24th October 2012 attended by the public, conditioning payment thereof towards his election on the 30th October 2012
   
2. By himself and his agents buying out buckets of kava immediately after a campaign around the airport area on the 25th October 2012 and sponsoring a "tamafa" for the public who were in attendance whereupon his photo was shown to the public present for the purposes of the tamafa having announced the kava so bought was free for consumption."
   

9. The challenge to the election of Moana Carcasses is detailed in the petition as follows:
   

"13 The Fifth Respondent Moana Carcasses Kalosil committed acts of bribery and or treating during the campaign period certified by the First Respondent in accordance with the Representation of the Peoples Act [CAP 146] as amended:

1. By himself donating 25kg of rice on the 28th of October 2012 to Donald, at seaside Paama driving a Mitsubishi truck filled with bags of 25 kilograms of rice
   
2. By attending the ex-FOL polling station on the 30th October 2012 accompanying his de facto partner in a manner considered to influence the voters of said polling station, even though he had voted earlier at the Dumbea polling station."
   

10. The challenge to the election of Patrick Crowby is detailed in the petition as follows:
    

"14 The sixth Respondent Patrick Crowby Manarewo committed acts of bribery and or treating during the campaign certified by the First Respondent in accordance with the Representation of the Peoples Act [CAP 146] as amended:

1. By himself donating cash of Vt 25,000 to the women of Fresh Wota 4 and Vt 20,000 to the youth of Vt 20,000 and in so doing uttering words when considered together with the cash handouts to amount to a bribe or treat
   
2. By himself donating a set of uniforms to the Futsal team of Fresh Wota 1 on the 8th September 2012 and a cash donation of Vt 20,000
   
3. By himself handing over a total amount of Vt 40,000 to a church at Fresh Wota on the 2nd September 2012 attended by its congregation and which amount was announced to the congregation on the 9th September 2012
   
4. By himself donating cash to the Fresh Wota 1 Futsal team on the 9th September 2012 to enable them to buy playing boots
   
5. By himself donating two (2) Magogot pots to the community of Futekai Paama at Freshwota 1 on the 9th September 2012
   
6. By providing food to persons who were not his supporters in the morning of the 30th October 2012 for their lunch at 21 Jump Street at Tagabe"
   

11. It is necessary to make some observations about election petitions and why election petitions are required by law to be treated somewhat differently to other civil proceedings. In particular:
    
    1. Election petitions must be presented within 21 days of the publication in the gazette of the results of election to which the petition relates - s. 57(1).
       
    2. That time limit is not able to be extended - s. 57 (3).
       
    100. Only minor amendments to the petition are permitted to be made outside that 21 day period and in the nature of "fine tuning". That is, new grounds are not able to be raised outside the 21 day period.
         
    4. There is no appeal from the decision of the Supreme Court on the petition.
       
12. The holding of a petitioner to the essential basis of his or her petition and not allowing any development by amendment is now well established. In another recent election petition case[1], I said this:
    

1. Both this Court and the Court of Appeal have had opportunities to consider applications to amend an election petition. It is unnecessary to go beyond the decision of the Court of Appeal in Jimmy v. Rarua[2] in 1998 that considered the general approach to be adopted by this Court when considering an application to amend an election petition.

2. Jimmy v Rarua related not to an eligibility issue (as is the case here) but whether the election concerned had been affected by corrupt practices (as defined in ss. 44 – 48 of the Act. Be that as it may, the Court of Appeal took the opportunity to consider the issue of amendment to petitions in a general way. The Court of Appeal conducted (what it described as):

". . . a comprehensive and exhaustive analysis of a number of decisions. Many were cases decided last century in a number of jurisdictions. These were presented to us to assist us to define how s. 57 should be interpreted".

3. The Court of Appeal emphasised that the correct interpretation of s. 57 arose from a plain reading of the words:

"The starting point in any statutory interpretation is clearly the words of the section itself. Upon a plain reading of the words we are satisfied that the Parliament in this jurisdiction has determined that when there is an election petition there is to be enumerated within the 21 period (from which there can be no extension) a clear statement of the matters complained of."

4. The Court agreed with various decisions of this Court that the 21 day period was absolute and that it could not be extended.

5...

6. Jimmy v. Rarua concluded with a consideration as to whether the amendment sought was more exactly a qualification of what was already in the first petition. The Court of Appeal accepted that some amendment could be permitted in the sense of fine tuning the grounds already specified:

"Finally, it was contended that almost all of what was included in what the Court permitted the petitioner to amend was only to qualify what was included in the first petition.

It may well be that a degree of particularizing or better defining specific allegations already made within the 21 period is not objectionable".

7. The Court of Appeal also noted in its judgment that there was an issue as to whether it had jurisdiction to consider the appeal given s.63(2) of the Act:

"63(2) There shall be no appeal from a decision of the Supreme Court under this part"

8. That prohibition notwithstanding, the appeal was heard on the assumption that the Court of Appeal had jurisdiction to hear the appeal and on the basis that counsel accepted that this was not the appropriate time to question the constitutionality of that prohibition by s.63(2) against appeal. Irrespective of whether the Court of Appeal had jurisdiction to consider the appeal or not, I respectfully accept and adopt without hesitation the principles explained so clearly by the Court of Appeal in these particular respects.

9. The reason for such a restrictive approach to the amendment of a petition once filed is obvious. It is necessary for the outcome of the National Elections to be finalised as quickly as possible. That is important to ensure that there is some stability of Government and that the country is not held hostage by election petitions that grow and develop as further and further enquiries are undertaken. It is clear that that was the intention of Parliament having regard to the way that the Act has been presented and it is certainly the way in which the Courts have construed its provisions.

(emphasis added)

13. It is important that this restrictive approach to a consideration of election petitions is recognised as there was an attempt by Mr Kalsakau at the hearing to go beyond the bounds of his petition with his complaints. That cannot be permitted. That notwithstanding, it can also be observed that, notwithstanding the substantial presentation by Mr Kalsakau, this case illustrates just how difficult it has become to upset an election particularly following the 2012 amendments to the Act.
    
14. It is regrettable that it has taken this long to determine this particular petition. An earlier date was not able to be achieved because of difficulties encountered by Mr Kalsakau and his counsel with the examination of the electoral records. I am still uncertain as to why it took so long for those records to be made available to Mr Kalsakau; that is, at least in respect of the records for Port Vila. It can be accepted that the records sought to be examined for Tanna would have taken sometime to be transported back to Port Vila.
    
15. I would have preferred to spend a little more time on this decision. However, it was necessary for the decision to be delivered without delay to ensure that any uncertainty over the election of those six Members of Parliament is removed. A personal complication has been sitting of the Court of Appeal over the last two weeks and indeed the closing addresses of counsel in this case had to be scheduled for a day last week when I was not required for the Court of Appeal. Accordingly, this decision will not be as elegant or as detailed as I trust would have been the case if I had the luxury of time.
    
16. Section 60 of the Act provides that on hearing a petition the Supreme Court may:-
    
    1. declare the election for which the petition relates as void;
       
    2. declare a candidate other than the person whose election is questioned was duly elected;
       
    100. dismiss the petition and declare the person who is election is questioned was duly elected.
         
17. The grounds for declaring an election void are set out in section 61 which will be examined in greater detail in due course.
    
18. A further provision of the Act requires the Supreme Court to send a written report to the Public Prosecutor in the event that the Court becomes aware of corrupt electoral practices in respect of the election to which the petition relates – s. 64.
    
19. This first challenge against the Port Vila Electiona whole is to be considered under section 61(1)(b) and (2). That section was amended in 201n 2012 and for the purposes of this particular challenge it repealed s. 61 (2) & (3) and inserted a replacement (2). The 2012 amendments are particularly significant to the second part to the petition alleging corrupt electoral practices by Mr Wright, Mr Carcasses and Mr Crowby. In short, and as will be eventually explained, the 2012 amendments have made it very difficult indeed to make a successful private challenge to the election of a Member of Parliament on the grounds of "corrupt electoral practices".
    
20. As it currently stands, and as applicable to the 2012 national elections, s. 61 is as follows
    

61. Grounds for declaring election void

(1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that –

(a) the candidate or any agent of the candidate has contravened section 61A, 61B or 61C;

(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election;

(c) the candidate was at the time of his election a person not qualified or disqualified for election; or

(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.

"(2) Despite subsection (f on an election petition,tion, the Supreme Court finds that there has been failure to comply with any provision of this Act, but the Court further finds that:

(a) it is satisfied that the election was conducted in accordance with the principles laid down in this Act; and

(b) such failure did not affect the result of the election,

the election of the successful candidate is not to be declared void.

(emphasis added)

21. It is well settled that the burden of proving the allegations remains on the petitioner and to the civil standard of the balance of probabilities; see for example the decision of the Chief Justice in the election petition case of Lop v Isaac[3]
    

"The Petitioner has the burden of proof. The burden of proof necessary to establish whether an act of bribery or corrupt practice had been committed by the First Respondent is a civil standard of proof. That is on balance of probabilities and I agree ... that the standard of proof is a higher standard than in normal civil cases."

22. Mr Godden, however, took issue with the suggestion that, "the standard of proof is a higher standard than in normal civil cases". In this respect, Mr Godden referred me to the decision of Dawson J in another election petition case of the same era, Sope v Principal Election Officer[4].
    

43. It has been submitted that the standard of proof in an election petition case is a higher standard than that which is applied in normal civil cases. Some reference has been made to obiter comments of this Court in Lop v. Isaac & Others EPCS of 2008 and Taranban v. Boedoro (2004). That submission cannot be correct for if it was so then this Court would be required to make its findings based upon an undetermined standard of proof that has no statutory authority to support it. The standard of proof in an election petition case of this type must be the civil standard of proof and decided upon the balance of probabilities.

44. The Act contains a protection from frivolous or minor breaches of the Act. If the Court finds that the Act has been breached on a balance of probabilities basis, it must then take the next step pursuant to Section 61(3)(a)(iv) and Section 61(3)(b) and decide that the breaches are of such magnitude that the result of the election was affected before declaring the election void.

45. A prosecution of a candidate that results from a referral pursuant to Section 64, is a different matter. A successful prosecution could lead to that candidate losing rights granted to any normal citizen, and therefore the standard of proof for such a prosecution must be the standard of proof of beyond reasonable doubt. There is no third unidentified indeterminate standard of proof.

23. It is unfortunate that the standard of proof in civil cases has been approached as if it fluctuates. It does not fluctuate. Instead, it responds to the seriousness of the allegations required to be proven. The more serious the allegation, the greater scrutiny the Court should give to the evidence in question. As appears in the extract from the decision of the Supreme Court of New Zealand in Z v Dental Complaints Assessment Committee[5] below, " . . . it is not the position that flexibility is "built into" the civil standard, thereby requiring greater satisfaction in some cases. Rather the quality of the evidence required to meet that fixed standard may differ in cogency, depending on what is at stake."
    
24. To put that observation in context, McGrath J, giving the majority judgment of the Supreme Court of New Zealand in the Dental Complaints case, said more expansively:
    

"[98] The civil standard of proof generally applies in civil proceedings even if the facts in issue, including the consequences if they are proved, are serious. As Dixon J put it in a classic passage in Briginshaw v Briginshaw:[154]

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. 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."

[99] As proposed by the Australian Law Reform Commission,[155] this approach has now been given effect in Australian evidence legislation.[156] The approach in Briginshaw has also regularly been applied in New Zealand by the High Court as the appropriate standard of proof in cases concerning professional discipline.[157]

[100] A parallel line of cases in England over the last 50 years treated the balance of probabilities test in civil cases as flexible in its application in that jurisdiction. A leading statement of the principles appeared in the majority judgment of Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof).[158] In the context of an application by a local authority for a care order based on the alleged rape by the respondent of other children in the family, Lord Nicholls said that the "established general principle" was that the balance of probabilities was the standard of proof and continued:[159]

"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."

Lord Nicholls later added that this approach to applying the civil standard of proof:[160]

"provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."

[101] Without wishing to be pedantic, it is not the position that flexibility is "built into" the civil standard, thereby requiring greater satisfaction in some cases. Rather the quality of the evidence required to meet that fixed standard may differ in cogency, depending on what is at stake.

[102] The civil standard has been flexibly applied in civil proceedings no matter how serious the conduct that is alleged.[161] In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case.[162] Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
..............
[104] ........the reality is that a finder of fact in a civil case does generally look for stronger evidence of serious allegations before being satisfied that an event was more likely to have occurred than not. Morris LJ once put it this way in a leading case:[165]

"[T]he very elements of gravity become a part of the whole range of circumstances which have to be weighed in the scale when deciding as to the balance of probabilities."

[105] The natural tendency to require stronger evidence is not a legal proposition and should not be elevated into one.[166] It simply reflects the reality of what judges do when considering the nature and quality of the evidence and deciding whether an issue has been proved to "the reasonable satisfaction of the tribunal".[167] A factual assessment has to be made in each case. That assessment has regard to the consequences of the facts to be proved. Proof to a tribunal's reasonable satisfaction will, however, never call for that degree of certainty which is necessary to prove a matter in issue beyond reasonable doubt.

............

[112] ........ the rule that a flexible approach is taken to applying the civil standard of proof where there are grave allegations in civil proceedings remains generally applicable in England.[182] There is accordingly a single civil standard, the balance of probabilities, which is applied flexibly according to the seriousness of matters to be proved and the consequences of proving them. We are satisfied that the rule is long established,[183] sound in principle, and that in general it should continue to apply to civil proceedings in New Zealand".

(emphasis added)

Applied by this Court in Solomon v Turquoise Ltd[6]

25. In this case the allegations are to be treated as serious. The petitioner asks the Court to intervene into the national parliamentary elections of this democratic republic and in particular asks the Court to upset the outcome of a poll of the Port Vila electorate. The relief sought is for the election of the various respondents to be declared void. Not only would that outcome upset a sitting member or members of parliament, it would require a by-election to be held for each vacancy created by the decision. It would also have the potential to cause political instability.
    
26. The evidence required to establish a basis for overturning an election will accordingly need to be both clear and cogent.
    

Part One: The Port Vila Elections

27. This challenge is brought under s. 61(1)(b) of the Act and it requires the court to find primarily that:
    
    1. There has been non-compliance with the provisions of the Act in the polling or in any other matter;
       
    2. That such non-compliance affected the result of the election.
       
28. If the court reaches that two-fold conclusion, it must then address s. 61(2) which stipulates that the court is not to declare the election of a successful candidate void if the court is:
    
    1. Nonetheless satisfied that "the election was conducted in accordance with the principles laid down in this Act" – s.61(2)(a); and
       
    2. That failure (in this part of the case - the "non-compliance") did not affect the result of the election – s.61(2)(b).
       
29. The first difficulty is that there do not appear to be any, "principles laid down in the Act". The Act is devoid of any express statement of principles. The Act is more a prescription as to how national elections are to be conducted. While the courts can certainly extract principles from a consideration of the provisions of the Act, s.61(2)(a) is quite explicit that it is the principles "laid down in this Act" that must be considered. That suggests that Parliament had in mind an express statement of principles which would be for the guidance of the courts when considering the construction and application of the Act. However, no such statement exists.
    
30. The second but no less significant difficulty is that an initial or primary finding under s.31. 61(1)(b) that the non-compliance affected the outcome of the election is then effectively required to be reviewed under s.61(2)(b). It is difficult to understand what is being sought by Parliament in this respect. It might well be that some reconsideration of s.61 is required.
    

First, the first respondent failed to ensure that the posters displayed by the candidates were of like nature to the polling station

32. The primary challenge has to be advanced on the basis that there was non-compliance with the provisions of the Act and the conduct of the polling or any other matter. There is, however, no provision in the Act requiring the Principal Electoral Officer (PEO) to display posters of the candidates in the polling station that were of a like nature to those publicly displayed by the candidates. Furthermore, there was no evidence of this. This ground is not established.
    

Second, the first respondent failed to ensure there was amble opportunity provided for all members of the Constituency to attend the polling station for registration to cast their vote.

33. There was limited evidence about this except in respect of the Vila City College polling station. The location of that polling station was moved to Teouma and outside the Port Vila electoral district some three to four days before the elections. The explanation provided by the current Acting PEO for this relocation was that the Vila City College was demolished last year and commercial premises replaced it. Mr Tete explained that not only was the PEO apparently unable to arrange for a polling station to be located at the site of the old Vila City College, the actual commercial business being undertaken involved the storage of hazardous chemicals and that made it unsuitable as a place for a polling station.
    
34. The principal challenge here was advanced on the basis that there was late notice to the electorate of the relocation of this polling station and that this must have had a marked effect upon the turn-out for voting of those registered for that polling station. The official returns for the Port Vila constituency however suggest otherwise.
    
35. The Vila City College polling station recorded that 49.9% of registered voters for that polling station cast valid votes. This can be compared to the total Port Vila vote of 17,744 which amounted to a 51% return against the total registered voters of 34,998. The percentage return for other polling stations whose returns were presented to the court by Mr Kalsakau:-
    

Anglican	– 50%
Vila North	– 51.2%
NTM	– 49.7%
Ex-Fol	– 39.7%

36. The evidence accordingly supports the submission for the PEO that the relocation of the Vila City College polling station does not appear to have had any discernible effect upon the ability of those registered for Vila City College polling station to attend the new site for that polling station at Teouma.
    
37. Mr Kilman, who gave substantial evidence for Mr Kalsakau, confirmed that the relocation of the Vila City College polling station was publicly announced over the public radio on a number of occasions over the three days leading up to the elections on 30 October 2012.
    
38. In the course of his closing submissions, Mr Godden sought to develop this particular point as a complaint that s. 29 (4) of the Act had not been complied with. That provision requires that the PEO, after the closing of the list of candidates, is to publish a notice that states:-
    
    1. The names of the candidates;
       
    2. The hours of polling;
       
    100. The situation of each polling station
         
    4. Sufficient information to enable voters to know which polling station they are required to vote at
       
    5. Any other information that may be prescribed.
       
39. The difficulty faced by the Petitioner in this respect is that there was no evidence that such a notice was not published.
    
40. Mr Tete was the only witness for the first respondent. He is currently the Acting PEO. He has had nine years experience of working in the electoral office and he has been a PEO for previous elections. However, during the 2012 elections, he was engaged as an election advisor. In the period leading up to the elections, Mr Tete was not involved with anything to do with the publication of a s.29 (4) notice and simply stated that this would have been the responsibility of the PEO at that time.
    
41. It is of course for the petitioner to prove this deficiency. If this case was dependent upon the PEO not publishing a s.29 (4) notice then it would be necessary for the petitioner would lead evidence to that effect. He has not done so and the court is left in the position where it does not know whether or not such a notice was published. There was simply no evidence that it was or was not published.
    
42. In his submissions, Mr Godden states that this mandatory requirement must have been the result of the publication and gazetting of Statutory Order number 134 of 2012 which he argues was "not in conformity with (s.29 (4))". That order simply named the eligible candidates for the 2012 National General Elections and set the date of polling as 30 October 2012.
    
43. Section 29(4) does not require a statutory order to be made to comply with the provisions of that subsection. It is indeed directed towards the publication of a notice containing that information. The publication of such important information as this is hardly likely to be brought to the attention of the general populace by publication in the Gazette as is required for statutory order. It can be expected that such publication will take place through local newspapers and radio.
    
44. The point is however that the petitioner has not proven that a s.29(4) compliant notice was published and the burden of proving that remains at all times on him.
    

Third, the first respondent failed to ensure a free and fair basis for the electors of Port Vila to freely attend and cast their votes:-

Particulars

(1) The Police were utilised to conduct body searches upon the electors.

45. The only evidence of this came from one Aaron Poita. He gave evidence of attending the Anglican polling station to vote. As he came into the polling station, he said that one of the political party's observers in attendance called out "Police, check the pocket". He said the police came towards him and conducted a body search. However he said further, "I let the police check me because I had nothing to hide".
    
46. Mr Poita then deposed that after he entered the polling booth to cast his vote, he heard someone shout out "he is from the rural, he has a blue card but he is voting in town". Mr Poita said that he did not have a blue card as he was registered to vote in Port Vila with a red electoral card; which, I note, must have been the case otherwise he would have not been able to enter a polling booth. Mr Poita said that he had had previous difficulties with one of the observers. He said that he felt afraid and ran out of the polling station without voting.
    
47. The first point taken by Mr Sugden is that this appeared to be a consent search and not one that particularly concerned Mr Poita. He said that he was "a bit concerned" but that he let the police search him as he had "nothing to hide".
    
48. This is the only admissible evidence of the police conducting a search and it appears that it was consensual. Furthermore, it does not appear that it was the search that intimidated Mr Poita as he carried on into the polling booth after the search to vote. It appears more that it was (what he obviously considered to be) the false accusation that he was not eligible to vote in Port Vila that troubled him.
    
49. There was nothing to suggest that the PEO had anything to do with the search of Mr Poita or that the Police had some general instruction to carry out searches of those presenting for the purposes of voting.
    
50. This ground fails.
    

(2) The first respondent failed to provide sufficient lighting within each polling booth to enable the electors to properly visualise the polling cards that would enable them to properly cast their votes.

51. The only evidence of this is in respect of the Chiefs' Nakamal polling station. Mr Kalsakau and one Luke Sawia gave evidence that they found the lighting insufficient to see clearly the photos of the candidates. This was supported in part by the evidence of Mr Tete who said that the actual polling booths within the polling station did not have dedicated lighting and that the lighting was of a more central nature relating to the building proper. However, Mr Tete said that the Chiefs Nakamal had been used on a number of occasions in the past as a polling station and he was certainly not aware of any complaints about it.
    
52. At best, the evidence for the petitioner is that two people (Mr Kalsakau and Mr Sawia) experienced some difficulty being able to identify the individual candidates by the ballot papers. However, there is no suggestion that they did not vote notwithstanding the conditions that they asserted were trying for them. It is furthermore difficult to accept that Mr Kalsakau would have cast his vote if he was in any doubt as to who he was voting for.
    
53. While there may be some validity in the complaint by Mr Kalsakau and Mr Sawia that the lighting in the polling booths at Chief's Nakamal was poor, that evidence cannot be taken either as proof that this amounted to non-compliance with the provisions of the Act or that it could have had a significant effect upon the election. Indeed, I do not consider it would have contributed or could have contributed to the outcome of the election in a significant way.
    
    • (3) The polling photos of the candidates were inadequate in size to enable a proper reflection on the elected choice.
      
    • (4) The polling photos were affixed together in such a way unlike in the past that did not enable the electors to properly assess their candidate.
      
54. The difficulty with these two grounds of complaint is that none of the polling photos for the 2012 National Elections, and in particular for the Port Vila constituency, were produced to the Court. What was produced to the Court was a bundle of ballot papers which Mr Kalsakau thought related to a past provincial election for Efate.
    
55. Mr Sawia stated that in previous elections the photos of the candidates (the ballot papers) were kept in separate piles. What I understood from both his evidence and Mr Tete's evidence is that when a person arrives to vote, they approach the first polling officer who checks their name against the roll of electors for that polling station and checks their electoral card. If all is in order, that person is then given a set of ballot papers and proceeds to one of the polling booths.
    
56. Mr Sawia's evidence is that on this occasion the photos were bound together effectively like a small book. I expect that this is like the small book of ballot papers that was produced but of course it is not for the Port Vila constituency. Mr Sawia said that the photographs of the voters were smaller than in the past and the fact that they were bundled together "made it very difficult for people who were not able to read or write to go through them and assess them well before making their choice." That, of course, is Mr Sawia's opinion and in that respect it is inadmissible and has been ruled as such.
    
57. There is nothing in either point. There is no set requirement of the Act in respect of the size of the ballot papers.
    

(5) The first respondent permitted in error the prevalence of duplicate voting.

58. This was unquestionably to be the major point for the petitioner.
    
59. Mr Kilman gave evidence of having undertaken a detailed examination of electoral records provided to him by the PEO. At the beginning of his exhibit SK 6, Mr Kilman presented an analysis of the electoral records for the Port Vila constituency. It was Mr Kilman's assessment that there were 134 irregular entries either by double registration and double voting within the Port Vila constituency, double voting between Port Vila and Efate Rural, voters whose names were entered on the roll on polling day, and curiously also an entry for a vote by proxy for a candidate on Santo.
    
60. Mr Tete, as Acting PEO, undertook a complete review of Mr Kilman's analysis. Mr Tete conceded:-
    
    1. In eighteen cases, the same name appeared on two or three occasions across the polling stations within Port Vila.
       
    2. Only one such person appears to have voted twice.
       
61. Mr Tete's evidence clearly established that Mr Kilman's analysis was superficial and inadequate as it had regard only to the names on the various polling lists. Mr Tete had the benefit of considering the primary records kept by the Electoral Office on which it based its compilation of the lists. Mr Tete satisfied me that the apparent duplications identified by Mr Kilman were the result of people having the same name. The closer scrutiny given by MrTete confirmed that, in all but one case, they were different people but with the same name.
    
62. Mr Godden commenced a focused cross-examination of Mr Tete on this particular matter. Time after time, however, Mr Tete was able to demonstrate that it was a case of two people having the same name. Eventually, Mr Godden conceded the point.
    
63. It would only be in the case of significant numbers of double voting that the outcome of the election for the Port Vila constituency could have been affected. That has not been proven to have occurred.
    
64. There was, however, an abundance of evidence about an election fraud involving a number of employees of Au Bon Marche who were registered to vote in Port Vila. One of their supervisors appears to have taken the personal details of various employeess and then quite illegally arranged for blue electoral cards to be issued for them so that a vote could be cast for them in Efate Rural. This was apparently to support another supervisor of Au Bon Marche who was a candidate for Efate Rural. As it happened, he was unsuccessful in the election. This will be a subject of report to the Public Prosecutor as it is serious and blatant electoral corruption.
    
65. Be that as it may, what must govern this consideration in relation to this petition is whether this clear non-compliance with the provisions of the Act could have affected the outcome of the election for the Port Vila constituency. There was simply no evidence to support that argument. This evidence simply points to an attempt to undermine the fairness of the vote for Efate Rural. It cannot be taken that this affected the outcome of the Port Vila Elections.
    

The first respondent permitted in error persons to vote not only actually but also on a proxy basis."

66. The case for Mr Kalsakau in that respect is not particularly well explained by this heading. Essentially, the complaint is that a number of people who would be eligible to be registered to vote in Port Vila were allowed a proxy vote to have their vote cast on Tanna.
    
67. The evidence in this respect certainly establishes that 181 applications for proxy voting were allowed for those from Tanna who were in or around Port Vila at the time of the elections. However, the individual circumstances of each of those persons would have had to be examined in order to determine whether they should have been registered on Tanna or whether they were required to have been registered in Port Vila.
    
68. The qualification for registration turns on the polling district in which the person is residing at the time of the preparation of the electoral list – s. 9 (1).
    
69. It is simply inadequate simply to refer to the number of proxy votes allowed for people in Port Vila at the time of the election and who remain registered on Tanna as being in non-compliance with the Act. That might well be the case in some or more respects but there is simply insufficient evidence for the Court to find that that is so and furthermore to assess the degree of non-compliance. A voter might, for example, be a student who is studying here in Port Vila but still legitimately claim to be residing on Tanna.
    

Determination on the first part of the petition

70. I find the evidence is insufficient for it to be concluded on balance of probabilities that there has been non-compliance with the provisions of the Act except in some very minor respects. Indeed, Mr Tete conceded that there some imperfections. However, there has been insufficient evidence to conclude that this non-compliance would have had any effect on the outcome of the election for the Port Vila constituency. There is nothing in this point. This part of the petition must fail.
    
71. Other points were taken by Mr Godden in his closing submissions and relied on evidence that in the main had been ruled inadmissible. This was, in particular, on the ground of relevance as these matters were not pleaded in the petition. For completion, however, I make some brief comments on those points.
    

Registration Officers charging Vt 100 to register people

72. The only evidence in this respect is from Watson Tabi who states that the registration officer or officers who attended to his area required him to pay a fee of Vt 100 in order for him to be registered to vote. Mr Godden rightly complaints that this was clearly illegal and that it cut right across Mr Tabi's constitutional rights to be registered to vote without charge.
    
73. However, Mr Godden goes further to say that, "the Court should take infer that this conduct by the Electoral Office or their agents may cause non-registered eligible voters who do not have any money for being registered and being able to exercise their constitutional right to vote". That is taking matters far too far. At best, this is one instance where a rogue registration officer has quite illegally charged a fee in order for Mr Tabi to be registered. The evidence could not possibly be taken beyond that but in any event this point was not pleaded and cannot now be raised.
    

People not eligible to vote because their names were not on electoral roll

74. Robert Tasso and Lency Fred gave evidence that they were unable to cast a vote because their names did not appear on the electoral roll. Mr Tete accepted that some mistakes had been made but in order for the Court to determine this issue (assuming it was pleaded which was not the case) it would be necessary to examine each and every instance to understand the reasons why their names were not on the electoral roll. That might be, for example, for reasons outside the control of the Electoral Office. Indeed, it must be noted that s. 31 of the Act specifically prohibits a person voting unless that person's name is contained "in the roll of electors of the polling district of the station at which he presents himself for voting and he produces a valid electoral card issued to him".
    
75. As mentioned, it would be necessary in each case for the reasons for the name being omitted from the electoral list to be examined and then of course for an assessment to be made as to the extent of any non-compliance with the registration provisions of the Act before it could be concluded that any non-conformity with the provisions of the Act would have affected the outcome of the election.
    

Secrecy of the vote.

76. Mr Godden argued that Mr Kilman's evidence established that the "secrecy to vote was violated by reason of the rubbish bins being placed outside of the polling booths". This is a reference to the rubbish bins apparently being made available to voters to dispose of the ballot papers that they were required to discard. The election process is that the voter goes into the polling booth, he/she selects the ballot paper of the preferred candidate and seals that in an envelope. The other ballot papers are then discarded in the rubbish bins provided.
    
77. There is nothing to suggest that having the rubbish bins just outside the polling booth as against the polling station would have created a potential security issue. Indeed, if the rubbish bins were located inside the polling booth then that would mean that any person who entered the polling booth would be able to go through the discarded ballot papers.
    
78. In any event, this point was not pleaded.
    

Votes being collected from the prison at Stade

79. Again, this was a matter not pleaded and no further attention is given to it.
    

Part Two – Tony Wright, Moana Carcasses and Patrick Crowby

80. While the petitioner faced significant difficulties proving his case under s. 61(1)(b) relating to non-compliance with the provisions of the Act, the 2012 amendments to the Act ensured that even greater difficulties would be encountered in respect of the allegations against Mr Wright, Mr Carcasses and Mr Crowby.
    
81. Prior to the 2012 amendments, allegations of this nature fell to be considered under s.60(1) (a), (2) and (3) in this form:
    

61. Grounds for declaring election void

(1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that –

(a) bribery, treating, undue influence or other misconduct or circumstances whether similar to those herein before enumerated or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election;

(c) the candidate was at the time of his election a person not qualified or disqualified for election; or

(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.

(2) The election of a candidate shall be declared void if he is convicted by a Court of committing a corrupt practice or of attempting or conspiring to commit a corrupt practice.

(3) Notwithstanding the provisions of subsection (1) –

(a) where upon the hearing of an election petition the Supreme Court finds that any agent of a candidate has been guilty of a corrupt practice and the Supreme Court further finds that the candidate has proved to the Supreme Court that –

(i) no corrupt practice was committed by the candidate himself or with his knowledge or consent or approval;

(ii) the candidate took all reasonable means for preventing the commission or corrupt practices at such election;

(iii) in all other respects the election was free from any corrupt practice on the part of the candidate; and

(iv) such corrupt practices did not affect the result of the elections,

then, if the Supreme Court so decided, the election of such candidate shall not by reason of any such practice be void;

(b) where upon the trial of an election petition the Supreme Court finds that there has been failure to comply with any provision of this Act but the Court further finds, that it is satisfied that the election was conducted in accordance with the principles laid down in this Act and that such failure did not affect the result of the election, the election of the successful candidate shall not by reason of such failure, be void.

82. The offending conduct under the (now repealed s.61(1)(a) are "corrupt Acts" as defined in offence section (s. 48) and being the offences of "personation, bribery, treating and undue influence". They are punishable as discrete criminal offences. Those offences are established by ss. 44 to 47 and remain offences punishable on conviction by a fine not exceeding Vt 100,000 or to imprisonment for a term not exceeding 5 years or both
    • - - s. 48.
      

44. Personation
A person commits the offence of personation if he –

(a) except when voting as a proxy, votes as some other person whether that other person is living or dead or is a fictitious person; or

(b) votes as proxy for a person whom he knows or has reasonable grounds for supposing to be dead or a fictitious person.

45. Bribery
(1) A person commits the offence of bribery –

(a) if he directly or indirectly by himself or by any other person –

(i) gives any money or procures any office to or for any voter or to or for any other person on behalf of any voter or to or for any other person in order to induce any voter to vote or refrain from voting;

(ii) corruptly does any such act on account of any voter having voted or refrained from voting; or

(iii) makes any such gift or procurement to or for any person in order to induce that person to procure, or endeavour to procure, the election of any candidate or the vote of any voter;

or if upon or in consequence of any such gift or procurement he procures or engages, promises or endeavours to procure the election of any candidate or the vote of any voter;

(b) if he advances or pays any money or causes any money to be paid to or to the use of any other person with the intent that such money or any part thereof shall be expended in bribery at any election, or knowingly pays any money or causes any money to be paid to any person in discharge or repayment of any money wholly or in part expended in bribery at any election;

(c) if before or during an election he directly or indirectly, by himself or by any other person on his behalf, receives, agrees or contracts for any money, gift, loan or valuable consideration or any office, place or employment for himself or for any other person for voting or agreeing to vote or from refraining or agreeing to refrain from voting;

(d) if after an election he directly or indirectly by himself or by any other person on his behalf receives any money or valuable consideration on account of any person having voted or refrained from voting or having induced any other person to vote or refrain from voting.

(2) For the purposes of subsection (1) of this section –

(a) references to giving money include references to giving, lending, agreeing to give or lend, offering, promising and promising to procure or to endeavour to procure any money or valuable consideration; and

(b) references to procuring office include references to giving, procuring, agreeing to give or procure, offering, promising and promising to procure or to endeavour to procure any office, place or employment.

46. Treating
A person commits the offence of treating –

(a) if he corruptly by himself or by any other person either before, during or after an election directly or indirectly gives or provides or pays wholly or in part the expenses ogiving or providing any food, drink or entertainment to or for any person –

(i) for the purpose of corruptly influencing that person or any other person to vote or refrain from voting; or

(ii) on account of that person or any other person having voted or refrained from voting or being about to vote or refrain from voting;

(b) if he corruptly accepts or takes food, drink or entertainment offered in the circumstances and for the purpose mentioned in paragraph (a) of this section.

47. Undue influence
A person commits the offence of undue influence if –

(a) he directly or indirectly by himself or by any other person on his behalf -

(i) makes use of or threatens to make use of any force, violence or restraint; or

(ii) inflicts or threatens to inflict by himself or by any other person any temporal or spiritual injury, damage, harm or loss upon or against any person,

in order to induce or compel that person to vote or refrain from voting, or on account of that person having voted or refrained from voting; or

(b) by abduction, duress or any fraudulent device or contrivance he impedes or prevents the free exercise of the franchise of a voter, or thereby compels, induces or prevails upon a voter either to vote or to refrain from voting.

83. The second part of the petition is indeed presented by reference to those respondents having committed acts of bribery and or treating. However, that presentation takes no account of the 2012 amendments.
    

84 In 2012, s. 61 was amended by repealing s. 61 (1)(a), (2) and (3) and inserting a new s. 61(1)(a) and (2). The current section s.61 is in this form:

61. Grounds for declaring election void

(1) The election of a candidate may be declared void on an election petition if it is proved to the satisfaction of the Supreme Court, that –

(b) the candidate or any agent of the candidate has contravened section 61A, 61B or 61C;

(b) there has been such non-compliance with the provisions of this Act, in the conduct of polling or in any other matter that such non-compliance affected the result of the election;

(c) the candidate was at the time of his election a person not qualified or disqualified for election; or

(d) there was such irregularity in the counting of the votes as may reasonably be supposed to have affected the result of the election.

"(2) Despite subsection (1), if election petition,tion, the Supreme Court finds that there has been failure to comply with any provision of this Act, but the Court further finds that:

(c) it is satisfied that the election was conducted in accordance with the principles laid down in this Act; and

(d) such failure did not affect the result of the election,

the election of the successful candidate is not to be declared void.

(emphasis added)

85. Section 61A is the only new section (out of ss. 61A, 61B and 61C) that is applicable to this case. Sections 61B and 61C create exceptions that do not arise here.
    

61A Cut-off date for using representation allowance, any money or donation in kind

(1) A candidate for election must not spend, allocate or otherwise disburse to the constituency in which he or she is a candidate, any money, whether in the form of:

(a) his or her representation allowance – if the candidate is a member of Parliament; or

(b) any money obtained from any other source of funding, whether in the form of:

(i) cash donations; or

(ii) donations in kind,

from the period commencing at the end of the life of Parliament or at the date of the dissolution of Parliament under subarticle 28(2) or (3) of the Constitituion, to and including the polling day.

(2) For the purposes of this section,

donations in kind includes, but is not limited to, food or food products, transport, transport fares, machinery, cooking utensils, building materials and furniture.

86. So, gone is the reference back to the corrupt practices (bribery, treating and suchlike) defined in s. 48.
    
87. What must accordingly be proven by the petitioner in this respect is not bribery or treating as such but the giving of cash or donations in kind to any members of the constituency in which he is a candidate during the defined period – s.61A.
    
88. The defined period was accepted by all counsel to be from and inclusive of 3 September 2013 to and inclusive of the polling day on 30 October 2013.
    
89. If the court finds that the candidate has acted contrary to s. 61A, the court is enjoined not to declare void the election of the successful candidate unless the court further finds that:
    
    1. The election was conducted in accordance with the principles laid down in the Act – s. 61A(2)(a); and
       
    2. The conduct of the candidate did not affect the result of the election – s.61A(2)(b)
       
90. I have already mentioned the difficulties identifying the "principles laid down in the Act". However, it is the second requirement under s.61(2)(b) that is likely to present any petitioner with more significant hurdle to overcome in a petition of this type – that is, that any payments made did not affect the result of the election. This, in particular, because this is not a one-on-one contest – it is for six seats. The registered voting population of approximately 35,000 for Port Vila each had one vote which, when the vote cast are accumulated, returned the result of the poll and determined the six successful candidates.
    
91. When dealing with accusations of payments and donations in kind, it is difficult indeed to see how an individual petitioner could accumulate sufficient evidence to satisfy the court that, notwithstanding such payment of cash or donations in kind, they did not affect the outcome of the election. It can easily be envisaged that evidence of offending acts of this type will generally be limited in scope as indeed is the case here.
    

TONY WRIGHT

TONY WRIGHT

Tony Wright committed acts of bribery and or treating during the campaign period certified by the PEO in accordance with the Representation of the Peoples Act [CAP 146] as amended:

90. It must be clearly stated that the consideration for an election petition cannot be on whether acts of bribery or treating have been committed. That is not longer the test. What needs to be considered is now spelled out in s. 61A subject to to the exceptions contained in ss. 61B and 61C. Be that as it may, the individual actions have been particularised and it is appropriate to consider each of them within the confines of s.61A. In short, were payments of this nature made and if so would they have affected the outcome of the election?It must be clearly stated that the consideration for an election petition cannot now be on whether acts of bribery or treating have been committed. That is no longer the test. What needs to be considered now is spelled out in s. 61A subject to the exceptions contained in ss. 61B and 61C. Be that as it may, the individual allegations have been particularised and it is appropriate to consider each of them against s. 61A. In short, were payments of this nature made and if so would they have affected the outcome of the election?

(1) By himself handing out money for kava after a campaign at seaside Tongoa on or about the 24th October 2012 attended by the public, conditioning payment thereof towards his election on the 30th October 2012

91. Mr Wright conducted a campaign rally at Seaside Tongoa in the week leading up to the election and likely to be around the 24th of October 2012. At or near the end of the campaign rally, two local residents who attended the rally, Seva Philimon and Harry Seule, stated that they clearly saw Mr Wright give cash to some young men for kava. Furthermore, Seva Philimon stated that she heard Mr Wright tell the young men words to the effect that they must know who spends the money on them.

92. Without question, if the evidence of Ms Philimon and Mr Seule is to be believed, Mr Wright offended against s.61A.
    
93. The evidence of Mr Wright and certain members of his campaign team denied that any money was given to anyone much less to youths at Seaside Tongoa for kava.
    

(2) By himself and his agents buying out buckets of kava immediately after a campaign around the airport area on the 25th October 2012 and sponsoring a "tamafa" for the public who were in attendance whereupon his photo was shown to the public present for the purposes of the tamafa having announced the kava bought was free for consumption.

94. The allegation here is that at the campaign rally conducted at the End of Airport Area by Mr Wright and his campaign team on 25 October 2013, Mr Wright provided funds to members of his campaign team to buy kava for the consumption of those local residents attending the campaign rally.
    
95. This was emphatically denied by Mr Wright and members of his campaign team who stated that they were well aware of the prohibition against gifts of this nature and that it did not happen.
    
96. I will deal with both allegations together. In doing so, I can indicate that I was impressed with the evidence from the local residents of both areas called by the petitioner as to the alleged offending conduct. Their evidence appeared to be quite independent of each other. It was clear and emphatic and I could not discern any motive to fabricate evidence of this nature notwithstanding that this was an election campaign and there was always the possibility of complaints from a person supporting another candidate.
    
97. However, the independence of those witnesses to each other within each occasion, the different perspective that each brought with their evidence but to the same effect and the general impression that they left with me as to their credibility convinced me that I cannot dismiss or discount their evidence even in the face of a united front of denial put up by the witnesses for Mr Wright.
    
98. I should pay special regard to Joseph Yatika who was an executive member of Mr Wright's campaign team. Yet he confirmed that Mr Wright gave him cash to pay for kava for the people attending the End of the Airport Area campaign rally. I was unable to identify any grudge on his part against Mr Wright and certainly he was not challenged in cross examination to the effect that he had an ulterior motive for giving evidence against Mr Wright.
    
99. On the other hand, Mr Wright and those members of his campaign team who gave supporting evidence for him appeared to be reciting a rehearsed denial. As is the case with most rehearsed denials of offending, it is often the little details that illustrate the lie. There was clearly an attempt to be consistent with the time of the rally at the Airport Area with most stating that it started at 3.00 pm and finished at either 3:30 pm or 3:45 pm – as if this was of some importance. Why would this timing issue be recalled so clearly by so many and so long after the rally? Additionally, while Mr Wright acknowledged that there was a kava bar at the rally location, others denied it outright. That is in total contrast with the evidence for the Petitioner.
    
100. I was left distinctly unimpressed with the evidence from Mr Wright and his supporters in respect of both occasions. I was left on the evidence satisfied that the offending conduct had more likely than not taking place both at Seaside Tongoa and at the End of the Airport Area. However that is not the end of the consideration. It is still necessary to determine whether this failure to comply with s. 61A affected the outcome of the election. As I have already mentioned, this is a distinct and substantial evidential hurdle for the Petitioner to overcome.
     
101. There were various estimates of the numbers that at campaign rallies ranging from 30 to 200. More pertinently, there was no evidence to assist as to how many people would have benefited from Mr Wright's largesse. There was no evidence to assist as to how many people might have enjoyed the kava at Seaside Tongoa or the Airport Area or known that it was funded or provided by Mr Wright. Accordingly, I am unable to determine whether the gifts were appreciated by more than a handful of people. While the evidence establishes a basis for a complaint against Mr Wright for the offences of bribery and treating, and a report will be provided to the Public Prosecutor, it cannot be concluded that this offending affected the outcome of the election.
     

MOANA CARCASSES

The Fifth Respondent Moana Carcasses Kalosil committed acts of bribery and or treating during the campaign period certified by the First Respondent in accordance with the Representation of the Peoples Act [CAP 146] as amended:

(1) By himself donating 25kg of rice on the 28th of October 2012 to Donald, at Seaside Paama driving a Mitsubishi truck filled with bags of 25 kilograms of rice

102. Sam Johnson and his uncle Seth Johnson stated that on 28th October 2012, as they alighted from a bus at their home at Seaside Paam,a they saw Mr Carcasses drive up and stop just in front them. They said they heard him call out to a man named Donald who came and received a 25kg bag of rice from the back of the black Mitsubishi closed-in four door truck (I expect that this described a Mitsubishi Pajero) that Mr Carcasses was driving. Clearly this allegation if sustained would be contrary to s. 61A.
     
103. Mr Carcasses flatly denied that he conducted himself is way or that he was even in that area that day.
     
104. There are difficulties with the evidence from Sam and Seth Johnson. They both stated emphatically that they recognised Mr Carcasses as the driver yet they also accepted that it was difficult to see into the truck because it had tinted windows. Sam Johnson's evidence suggested that Donald came and took the bag of rice from the back of Mr Carcasses' truck. Seth Johnson said that Mr Carcasses got out of the truck and handed the bag of rice to Donald.
     
105. Seth Johnson said that "Donald" was indeed a Donald Alick and that he also lived in that area. Both Sam and Seth Johnson stated that they had seen Donald since that afternoon but they had not discussed the rice incident with him.
     
106. This raises the question as to why Donald Alick was not called to confirm whether or not he had received a gift from Mr Carcasses. Mr Godden indeed arranged for Mr Alick to come to Court. However, for reasons that were not explained, Mr Alick was not called to confirm or deny the allegations. Certainly there was no jeopardy of prosecution faced by Mr Alick if he was to acknowledge that he received that gift.
     
107. Mr Morrison also established in cross examination that a close relative of Sam and Seth Johnson also stood as a candidate in the Port Vila constituency against Mr Carcasses although he was unsuccessful.
     
108. Furthermore another relative is the sole witness of complaint for the second allegation made against Mr Carcasses relating to his attendance at the ex-FOL polling station on election day.
     
109. It is well understood and accepted that evidence of identification must be treated with care, even caution, and even where it is claimed to be a case of recognition of someone familiar to the witness. There have been many notorious mistakes made with identification which have convinced the courts over the years that this evidence should not be accepted uncritically and without care no matter how emphatic the witness is to the correctness of the identification.
     
110. In this case, the two witnesses say that they were about five meters away from the rice transaction. One said that Mr Carcasses got out of the car while the other says he recognised him because the driver's window was down. There must accordingly be some potential for mistake between the two.
     
111. There is some conflict between the two accounts. They are both members of the family that has provided all the complaint evidence against Mr Carcasses and this against the back drop that their relative was standing against Mr Carcasses.
     
112. I am not prepared to accept their evidence that such a gift of rice was made by Mr Carcasses. Furthermore, even if this allegation was proven, it could not possibly have affected the outcome of the election for Port Vila.Sam Johnson and his uncle Seth Johnson stated that on 28 October 2012, as they alighted from a bus by their home at Seaside Paama, they saw Mr Carcasses drive up and stop just in front of them. They said that they heard him call out to a man named "Donald" who came and received a 25kg bag of rice from the back of the black Mitsubishi closed in four door truck that Mr Carcasses was driving. Clearly, this allegation if sustained would be contrary to s.61A.
     
113. Mr Carcasses flatly denied that he conducted himself in this way.
     
114. There are difficulties with the evidence from Sam and Setty Johnson. They both stated emphatically that they recognised Mr Carcasses as the driver yet they also accepted that it was difficult to see in to the car because it had tinted windows.
     
115. Sam Johnson's evidence suggests that Donald came and took the bag of rice from the back of Mr Carcasses car. Seth Johnson stated that Mr Carcasses got out of the truck and handed the bag of rice to Donald.
     
116. Seth Johnson said that Donald was indeed Donald Alick and that he also lived in that area. Both Sam and Seth Johnson stated that they had seen Donald since that afternoon but that they had nt discussed the rice incident with him.
     
117. This raises the question as to why Donald Alick was not called to confirm whether or not he received a gift from Mr Carcasses. Mr Godden indeed arranged for Mr Alick to come to court but for reasons that not explained Mr Alick was not called to confirm or deny the allegations. Certainly, there was no jeopardy of prosecution faced by Mr Alick if he was to acknowledge that he received that gift.
     
118. Mr Morrison also established in cross-examination that a close relative of Sam and Seth Johnson was also standing as a candidate in the Port Vila constituency. Furthermore, another relative is the sole witness in the second allegation made against Mr Carcasses relating to his attendance at the ex-FOL polling station on election day after he had voted.
     
119. It is well understood and accepted that evidence of identification must be treated with care even when it is claimed to be a case of recognition of someone familiar to the witness. There have been many notorious mistakes made with identification evidence which have convinced the courts that this evidence should not be accepted uncritically and without care no matter how convinced the witness is as to the correctness of the identification.
     
120. In this case, the two witnesses said that they were about five metres away from the rice transaction, one said that Mr Carcasses got out of the car while the other said he recognised him because the driver's window was down. There must accordingly be some room for mistake between the two.
     
121. As there is some conflict between their two accounts, and also because their family appears to provide the only witnesses against Mr Carcasses in respect of both complaints against the backdrop that their relative was standing against Mr Carcasses, I am not prepared to accept their evidence that if such a gift of rice was made that it was made by Mr Carcasses. Furthermore, this allegation if proven could not possibly have affected the outcome of the election.
     

(2) By attending the ex-FOL polling station on the 30th October 2012 accompanying his partner in a manner considered to influence the voters of the said polling station, even though he had voted earlier at the Dumbea polling station.

113. The only evidence that this came from Jackie Setty Johnson. However it is not conduct contrary to s.61A and accordingly it cannot be the subject of a petition to declare void the election of Mr Carcasses.

114. Be that as it may, I should mention that I found nothing disturbing about this allegation particularly given the explanation that was provided by Mr Carcasses that he was simply accompanying his partner when she went to vote as she was unwell at that time. I accept that explanation and, in particular, dismiss any suggestion that Mr Carcasses used the occasion to continue his campaign for re-election.

PATRICK CROWBY

The sixth Respondent Patrick Crowby Manarewo committed acts of bribery and/or treating during the campaign certified by the First Respondent in accordance with the Representation of the Peoples Act [CAP 146] as amended:

(1) By himself donating cash of Vt 25,000 to the women of Fresh Wota 4 and Vt 20,000 to the youth of Vt 20,000 and in so doing uttering words when considered together with the cash handouts to amount to a bribe or treat

115. The cash donations are not denied. They would amount to cash donations caught by s.61A if they occurred within the designated period of 3 September 2012 to 30 October 2012. However the evidence is that the donations were made on 1 September 2012 and so this complaint must fail.

122. The cash donations are not denied. They would amount to cash donations caught by s.61A if they occurred within the designated period of 3 September 2012 to 30 October 2012. However, the evidence is that the donations were made on 1 September 2012 and so this complaint must fail.
     

(2) By himself donating a set of uniform to the Futsal team of Fresh Wota 1 on 8th September 2012 and a cash donation of Vt 20,000

(3) By himself donating cash to the Fresh Wota 1 Futsal team on the 9th September 2012 to enable them to buy playing boots

(4) By himself donating two (2) Magogot pots to the community of Futekai Paama at Freshwota 1 on the 9th September 2012

116. The evidence initially presented was amended during the petitioner's case as to the dates of the donations.

117. Mr Crowby accepted that he donated the uniforms but stated that this occurred on 31 August 2012 and not 9 September 2012. Mr Godden accepted that to be so. Accordingly the donations are not caught by s.61A.

118. Similarly, the cash donations for the boots and the donations of the Magogot pots were accepted as having been made on 2 September 2012 and again those donations are not caught by s.61A as this occurred prior to the commencement of the relevant period

(5) By providing food to persons who were not his supporters in the morning of the 30th October 2012 for their lunch at 21 Jump Street at Tagabe

119. This was not pursued.

Hannah Johnson

120. While this was not pleaded, Mr Godden presented evidence of a payment of Vt 1,000 made by Mr Crowby to Ms Johnson just a few days before the election. Ms Johnson stated that the cash was given to her by Mr Crowby together with a comment inquiring whether she was "on board".

121. Mr Crowby admitted giving Ms Johnson the cash. However, he explained that she was his cousin/sister and that he often gave her cash when he saw her. He denied making the comment about coming "on board".

122. Whether or not Mr Crowby made the comment, a gift of Vt 1,000 to a close family member is hardly likely to upset the vote for Port Vila. Nor would it warrant a report to the Public Prosecutor.

Conclusion

123. For these reasons, the petition is dismissed.

124. The respondents are entitled to costs on a standard basis to be agreed or taxed.

125. This case illustrates just how difficult it is now to have an election overturned by way of an election petition. A petitioner is required to establish that the non-compliance with the Act, the prohibited gifts or such like must have had an effect on the outcome of the election. That will in most cases be very difficult indeed to prove particularly given the short period of time that a petitioner has to define the scope of his or her petition.

126. One of the more far-reaching consequences of the 2012 amendments was the repeal of s.61(2). That provided that the election of a candidate subsequently convicted of an offence of corrupt practice (personification, bribery, treating and undue influence) shall be declared void. This leaves the consequences of committing such an offence to be the penalties specified in s. 48 of a fine not exceeding Vt 100,000 or to imprisonment for a term not exceeding five years or both. There is now no means by the Act to overturn the election of a candidate unless it is proven that this must have had an effect on the outcome of the election under s.61 as amended.

123. This was not pursued
     

Hannah Johnson

124. Finally in respect of Mr Crowby, evidence was led that he gave cash to one Hannah Johnson, a close relative, on 23 October 2012. Mr Crowby accepted that this occurred but said that he often provided his cousin/sister Hannah with cash and that he did so on that day without further comment. While Ms Johnson stated that it was with comment, it is unnecessary to deal further with this. Evidence of giving a close relative Vt 1,000 cash a week before the elections is hardly likely to have had an affect on the the outcome of the election
     

CONCLUSION

125. The petition accordingly is dismissed in its entirety for these reasons.
     
126. The Respondents are entitled to standard costs to be agreed or taxed.
     

BY THE COURT

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^[1] Jimmy v Kilman [2013] VUSC 5; Election Petition Case 09 of 2012 (8 February 2013)
^[2] Jimmy v Rarua [1998] VUCA 4; Civil Appeal Case 02 of 1999 (23 April 1998)
^[3] Lop vi Isaac [2009] VUSC 23; Election Petition Case 05 of 2008 (6 April 2009)
^[4] Sope v Principal Election Officer [2009] VUSC 62; Election Petition Case 06 of 2008 (15 June 2009)
^[5] Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1 (25 July 2008)
^[6] Solomon v Turquoise Ltd [2008] VUSC 64; Civil Case 163 of 2006 & 29 of 2007 (8 August 2008)