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Menyamya Open Parliamentary Elections: Bourne v Voeto [1977] PGNC 31; [1977] PNGLR 298 (23 September 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 298 - Re Menyamya Open Parliamentary Elections: Neville Bourne v Manesseh Voeto�

[1977] PNGLR 298

N108

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NEVILLE BOURNE

V

MANESSEH VOETO

Lae

Frost CJ

19-23 September 1977

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Illegal practices - �Undue Influence� - Definition of - Standard of proof required - Admissibility of hearsay evidence - Admissibility of evidence as to how elector voted - Organic Law on National Elections s. 215, s. 217[ccxciv]¹�- Criminal Code s. 102[ccxcv]².

N1>EVIDENCE - Admissibility - Hearsay - Hearsay evidence admissible under s. 217[ccxcvi]³�of Organic Law on National Elections - Weight to be attached thereto.

Section 215(1) of the Organic Law on National Elections provides that if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void. In proceedings by way of petition before the Court contesting the validity of an open parliamentary election on the ground of undue influence;

Held

N1>(1)����� The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference.

Salford Election Petition (1869) 20 L.T. N.S. 120; Northallerton Election Petition (1869) 21 L.T. N.S. 113 at p. 116 and Re Welland Election (1875) H.E.C. 187 applied.

In re the Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 N.Z.L.R. 321 distinguished.

N1>(2)����� Where the ground relied upon in such proceedings is undue influence it will be necessary to prove undue influence as constituted by s. 102 of the Criminal Code.

N1>(3)����� To constitute undue influence under s. 102 of the Criminal Code it will be sufficient to prove that a person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud for the purposes thereof including a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the elector�s exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate.

Semble

An intention to influence the elector to vote in favour of a candidate or to refrain from voting against him would fall within the section.

Woodward v. Maltby [1959] VicRp 100; [1959] V.R. 794 at pp. 798-799 referred to.

N1>(4)����� Under s. 217 of the Organic Law on National Elections, hearsay evidence may be admitted in such proceedings although the weight to be attached thereto may not be the same as with direct evidence.

N1>(5)����� Where the substantial merits of the case require it, as in the case of undue influence, evidence as to how an elector voted may be admitted, notwithstanding the special provisions in s. 218(2) of the Organic Law on National Elections.

N1>(6)����� On the evidence, it had been proved to the entire satisfaction of the court that the respondent had (by telling a large gathering of electors that they would be fined if they did not vote for him and that if they did vote for him they would not be fined or pay any money) prevented or obstructed the free exercise of the franchise by an elector which amounted to undue influence, and accordingly the election should be declared void in accordance with s. 215(1) of the Organic Law on National Elections.

Petition

This was a petition to the National Court, sitting as a court of disputed returns, brought pursuant to s. 206 of the Organic Law on National Elections contesting the validity of an open parliamentary election on the ground of undue influence.

Counsel

W. J. Andrew, for the petitioner.

W. J. Karczewski, for the respondent.

K. N. Gregory, for the Electoral Commission.

Cur. adv. vult.

23 September 1977

FROST CJ: This is a petition by Mr. Neville Bourne who was a candidate at the 1977 general elections for the electorate of Menyamya Open. The candidate elected was Mr. Manesseh Voeto. There were seven candidates, Mr. Manesseh Voeto scored approximately 5,000 votes, the next candidate obtained approximately 2,350 and the petitioner Mr. Bourne 1650, making a total poll of 12,500 votes approximately.

Mr. Bourne lives in the village of Umba about 25 miles from Menyamya by foot-track. He is the only European in the area, that is, within a radius of about 25 miles; he is a missionary and a linguist and apparently is engaged in work advancing the development of the area in making airstrips and roads. In the eight years that he has been there he has learnt the local language.

Mr. Manesseh Voeto, the respondent, also lives in the Menyamya sub-province. He was educated to standard 7 in 1964 � he took great advantage of his education and it is to his credit � an educational level which in 1964 few other Menyamya men had obtained. He became a livestock supervisor for the Department of Agriculture, then trained to become a pastor and was for a time a Lutheran pastor in Menyamya. He became the president of the Lutheran Church, founded the Kukukuku Co-operative Society, and in due course was elected the Member for Parliament for the electorate in the 1972 elections.

Now, let me say something about the electorate. The Menyamya Open electorate is part of the Morobe Province and is situated in the Central Ranges west of Lae. The country is mountainous and difficult. Menyamya is the only town, with its government buildings, court house and post office, schools and nearby missions. Some development has occurred. There are cash crops and some schools, but the sub-province remains accessible to Lae only by air and development has not progressed to the extent that there is a road from Lae to Menyamya. It has a population of about 37,000 and, according to Mr. Sabadi, there are about 19,000 on the Rolls, but it appears that the figure may be a little less. There are two sub-divisions, Menyamya and Aseki. According again to Mr. Sabadi, the people are generally illiterate, and therefore an easy mark for a candidate out to intimidate them by threatening government action.

The ground of the petition is that Mr. Manesseh, during the conduct of the said elections �unduly influenced persons to vote for him by threats of court action and fine�. The Organic Law on National Elections under which this petition is brought provides that if the National Court finds that a candidate has committed or attempted to commit bribery or undue influence, his election if he is the successful candidate shall be declared void (s. 215(1)). The Organic Law thus gives full recognition to the common law principle that the Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void. Crouch v. Ozanne[ccxcvii]⁴.

It will be noted that in s. 215(1) there is no requirement, as in the case of other illegal practices, that the Court should be 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. The mandatory consequence that the election is to be avoided lessens the burden on the Judge. His duty, onerous as it is, is only to be satisfied that the grounds are proven.

This brings me to the onus of proof. There are two types of cases which come before this Court under the Disputed Elections provisions of the Organic Law and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of these corrupt or illegal practices including undue influence. The onus is, of course, on the petitioner in a case such as this. What we are concerned with here is the degree of proof. Even in regard to the first class of case, that is, those based on electoral irregularities, it is recognized, to use the words of Stephenson L.J. in relation to an English provision in similar form to the Organic Law, s. 218(1), that �... an election is a serious � and expensive � matter and is not lightly to be set aside.� Morgan v. Simpson [ccxcviii]⁵. This has a particular application to this Papua New Guinea electorate in view of the hazardous conditions and hardships that the polling teams put up with when, taken by helicopter, they were landed in the hills far from Menyamya and had to make their way by foot through the villages back to that town.

Now, as to the other type of case, it was said in the Salford Election Petition[ccxcix]⁶�that the return by a Returning Officer is not to be lightly impeached. If the petition is based upon an independent act of bribery or intimidation as opposed to general bribery or intimidation, before such an election is set aside it should be proved to the entire satisfaction of the Judge � per Martin B. at p. 124. Willes J. said that the Judge before defeating an election should be very sure. He ought not to say very sure, but ought to be sure; he ought to have reasonable assurance that the ground was really made out. Northallerton Election Petition[ccc]⁷. Both were cases decided at common law.

In Halsbury it is said that in such a case the Court should be satisfied �beyond all doubt�, Vol. 14, 3rd ed., at p. 288. Similarly, �where an election has been properly conducted and where there is a single act of intimidation the court will require very strong evidence indeed before declaring such election void�. Schofield on Parliamentary Elections at p. 400.

The question is, does the degree of proof go beyond this? Is proof beyond reasonable doubt required? Mr. Karczewski so submitted. He relied upon the New Zealand case of In re The Wairau Election Petition[ccci]⁸�where it was so held. But that case is distinguishable because upon the finding by the Court of corrupt practice, under the New Zealand legislation the incapacity followed both of voting in an election and also holding office.

I have for myself found some assistance in the Canadian case to which counsel referred, Re Welland Election[cccii]⁹. It is true it was a case also of disqualification. There is a brief note of the case in The English and Empire Digest, Vol. 20 at p. 170, as follows:

�Before subjecting a candidate to a penalty of disqualification, the judge should feel well assured, beyond all possibility of mistake, that the offence charged is established. If there is an honest conflict of testimony as to the offence charged, or if acts or language are reasonably susceptible of two interpretations one innocent and the other culpable, the judge is to take care not to adopt the culpable interpretation unless, after the most careful consideration, he is convinced that in view of all the circumstances it is the only one which the evidence warrants his adopting as the true one.�

Mr. Gregory submitted that the degree of proof falls short of proof beyond reasonable doubt. However, in this case before I uphold the petition, I am of opinion that the ground of it must be proved to my entire satisfaction, and that as Willes J. said, if I am not to be very sure I must at least be sure that the ground has been made out. It may fall therefore just short of the criminal standard, although in application I consider there would be no real practical difference.

The ground is undue influence. What does this involve? Where has the Court to look to find its definition? Mr. Andrew suggested that the Court should simply apply the words of the Organic Law and arrive at its own definition of what would appear to be undue influence. But I feel on safer ground, as submitted by both Mr. Gregory and Mr. Karczewski, in going to the Criminal Code where the offence of undue influence is constituted by law. The Code, s. 102, reads as follows:

N2>�102.�� UNDUE INFLUENCE.

Any person who:

(a)����� uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind, to an elector in order to induce him to vote or refrain from voting at an election or on account of his having voted or refrained from voting at an election; or

(b)����� by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour, and is liable to imprisonment with hard labour for one year, or to a fine of K400.00.�

There is a helpful passage also in Halsbury:

�In order to constitute undue influence a threat must be serious and intended to influence the voter, but it would appear that the threat should be judged by its effect on the person threatened and not by the intention of the person using the threat. A threat even though the person using the threat has not the power to carry it out would seem to amount to undue influence. An unsuccessful threat has been held to amount to undue influence.� � Laws of England, 3rd ed., Vol. 14, p. 224.

The reference to s. 102 of the Code finds some support in the Organic Law, s. 205, which provides that nothing in the Law is to derogate from the provisions of the Criminal Code.

Argument was directed to the meaning of s. 102, as to both of its paragraphs. It seems that the elements of s. 102(a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector. Second, it must be shown that the purpose was �in order to induce (an elector) to vote or refrain from voting at an election ...� Does this refer to the question whether the elector votes or does not vote or does it refer to the manner of voting? As will be seen it is unnecessary for me to decide this point, but I am inclined to the view that an intention to influence the elector to vote in favour of a candidate or to refrain from voting against him, would fall within the section. The Code must be capable of this meaning as in Queensland there is compulsory voting. This construction is supported by passages in the judgment of Smith J. in Woodward v. Maltby[ccciii]¹⁰�and in The Wairau Election Petition[ccciv]¹¹, both of which were referred to by Mr. Gregory. Upon the information available to this Court it seems that The Constitution Act Amendment Act 1958, s. 241 (a), the Victorian Statute which Smith J. was called upon to apply, is in the relevant respects similar to s. 102(a).

Turning to s. 102(b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.

I agree with Mr. Gregory�s submission that any such instance of fraud which prevents or makes more difficult the elector�s exercise of his right to vote as he wishes clearly falls within the section.

Counsel for the respondent and the Electoral Commission each conceded that if the evidence upon which the petition was based was accepted, that is, the evidence of the witnesses as to the respondent�s statements, then the case would fall under s. 102(b) and accordingly there was no examination of 102(b) in the light of the evidence.

Before I go to the facts I should rule on the objections made by Mr. Karczewski as to the admissibility of certain hearsay evidence by Mr. Sagapana, Mr. Crozier, Mr. Kone and Mr. Onafimo. In proceedings at law this evidence would of course be inadmissible, but because of the special provisions in s. 217 of the Organic Law the legal position is clearly altered. It is well-established that such a provision is a procedural section. In clear terms it enables the Court to act on evidence whether it is in accordance with the law of evidence or not. Accordingly I would admit the evidence of the witnesses which was objected to on the ground of hearsay, but the question of weight remains for there is a clear distinction between the weight to be given to evidence which is direct and admissible in a court of law and hearsay evidence.

Next, Mr. Gregory objected to the evidence by the witnesses Sagapana and Iguajuya to the effect that each of them and others also voted in favour of Mr. Manesseh Voeto. Mr. Gregory relied on a passage in the judgment of Isaacs J. in Kean v. Kerby [cccv]¹², and also on the principle of the secrecy of the ballot which he said was fundamental to the Organic Law. However, the special provision in s. 218(2) is against such a general construction, and in my opinion, where the substantial merits of the case require it, as in the case of undue influence, this evidence is admissible. In most cases the point is not crucial because an attempt to intimidate is sufficient for the election to be declared void. If the evidence is that the elector voted against the candidate alleged to have committed undue influence, there still would be an attempt. The Northallerton Election Petition [cccvi]¹³, per Willes J. at p. 117. But it is not necessary for a finding under the Code s. 102(a) or the first part of (b) that the elector actually had been induced to vote for the candidate.

Going to the facts of this case, writs were issued for election in April 1977, nominations closed on 9th May and polling was to start on 18th June and continue until 9th July

There was no doubt that a large gathering of luluais, tultuls and �committees�, occurred in the grounds of the respondent�s house and near the town of Menyamya on Saturday, 14th May. The respondent says it commenced on the Friday and this may be so. Invitations were sent out by the respondent to over 200 persons; about 100 with wives and children attended.

Witnesses called on behalf of the petitioner were Kipa, Sagapana, Iguajuya, each of whom attended on the Saturday. On their evidence there was talk amongst the village leaders about the need to increase the supply of vegetables in the electorate and also reports on the cash crops. These were the common problems of the electorate. But on the Saturday afternoon it was quite clear that there was a party atmosphere and indeed that was what those invited considered to be the purpose of the occasion. Pigs were cooked and kaukau; the party cost K200. Although the witnesses said there was no liquor, it was a noisy party, and indeed Mr. Sabadi said he could hear it in Menyamya over a mile away.

Then apparently talk got around to the elections � that at least is common ground in this case � and certain statements were said to have been made by Mr. Voeto, which are the basis of the case of undue influence made by the petitioner.

The matters upon which Mr. Andrew relied were as follows:

On Saturday, 14th May, 1977, at Mr. Voeto�s place, close to Menyamya Station at a party he said to the persons present:

N2>(1)����� I make this party for you, you must vote for me or you will be fined K800 and in default sent to prison;

and on another occasion:

N2>(2)����� if you vote for another you will have to pay K200 but if you vote for me you will not;

also

N2>(3)����� if you do not vote for me you will pay K400; and

N2>(4)����� if you do not vote for me you will pay K800 and go to gaol for four years.

Turning to the evidence of Kipa, he said he was at the party. He was there all day after arriving early in the morning. According to him, when Mr. Voeto made a speech early in the morning he said, �if you do not vote for me you will pay K800 fine and in default be sentenced to imprisonment�. He said he did not vote for the respondent.

I have some reservations about Kipa�s evidence. It cannot be overlooked he had been employed by Mr. Bourne for about 8 years and was no doubt favourable to him. He was not a satisfactory witness. He was talkative and the interpreter had difficulty in getting him to answer precise questions.

He says he got up and argued against the speaker and said they could vote for any man on the paper. No-one else heard him according to other witnesses, but they were not there in the morning. Mr. Voeto said no-one spoke against him. Not only did Mr. Voeto deny he himself made any such statement but he said nobody got up and queried him about any statement concerning the elections. I had the impression it was possible Kipa was endeavouring to display his loyalty to Mr. Bourne in making this statement. I would have reservations in acting upon his evidence unless corroborated.

Sagapana was the next to give evidence. He was a �committee�. He gave his evidence clearly, answering the questions directly and in a satisfactory manner. The substance of his evidence is that he arrived at the party about 1 o�clock and soon afterwards a speech was made. Plenty of people were there. Pigs had been got ready and the mumu was prepared. In the course of speaking, Mr. Voeto produced some photos and held up a photograph of himself and, speaking Pidgin, said to the people, �You don�t have to put a mark on other people, you have to put your mark on me� indicating that when they came to vote they were to vote for the man on the photograph. Mr. Voeto said, �You will be fined K200 if you vote for another man but if you vote for me you won�t pay this money or any money�. He said he felt that this K200 was a lot of money so �when the vote came up we voted for Manesseh�.

Now we turn to the evidence of Mr. Iguajuya. He gave evidence that plenty of people had been invited to the party, he also was there on the afternoon, that Manesseh got up and gave them his photograph and said, �if you vote for any other candidate then you will pay K200�. Five men who were brought into Court were identified by him as present and to whom he translated Manesseh�s words in their language. When he went home he told the villagers also of Manesseh�s words and showed them the photograph they had been given. He said they voted for the respondent because they were afraid as �he told us that if we vote for another man we would pay K200, therefore we voted for him�. The substance of this statement, and also that Manesseh held up his photograph and said vote for Manesseh, was given a number of times in evidence.

In cross-examination � he was ably cross-examined by Mr. Karczewski � he was asked, did Manesseh say how long you would go to gaol if you did not pay the fine and he said four years, and then he said that Mr. Voeto spoke three times, the third time he spoke he mentioned K800, on the first time if we voted for somebody else we would lose K200, and the second time K400. One could apply the familiar rule in the courts and conclude that when a man changes his evidence his testimony should be regarded as worthless, but to do that may be to reach a conclusion which is not held by the judge and does not seem to him a true assessment of the witness� evidence. The witness may have exaggerated to emphasize his belief in his story, and it is significant that the reference at least to the question of K800 was made in a leading question, with the ever-present consideration that the unsophisticated people of this country are likely to give the answer apparently desired. On the whole I would not reject the evidence of this witness merely because of those answers.

Now the witness was present with a party of villagers who went to Hakwange to talk about this matter with a school teacher. That the evidence of Mr. Iguajuya was not a recent invention is shown by Mr. Onafimo�s evidence, by which I was impressed. He was the headteacher at Hakwange Community School. He said that about 150 people came to his house, they were worried and frightened. Their spokesman said they wanted information about reports they had heard, the reports being to the effect that if a person does not vote for a person will he be fined K200. �If we do not vote for that man, will we be found guilty, will we be fined or go to gaol�, but no name was mentioned and the people were a little bit worried. They were confused and frightened. What he said to them was, of course, �No, you can vote for anybody but you won�t be found guilty and you won�t pay K200.00 or go to gaol�.

Iguajuya was one of those who stood by as their spokesman talked, and it is significant that the evidence of Iguajuya and Onafimo is the same � the name of the candidate was not mentioned. Mr. Onafimo felt that those who understood Pidgin, as Iguajuya did, accepted what he said, but he could not of course answer for those who spoke �tok ples� only. Even after the talk by Mr. Onafimo he was still afraid of Manesseh because he was a member of Parliament, he was a big man, and as a result he voted for him.

Now let me come to the evidence of Mr. Voeto. He said he called the meeting �The Menyamya Development Seminar�, to bring the leaders together and discuss their problems. Using his loudspeaker, he told the people that the meeting was not a campaign or something to do with the vote, it was for leaders to discuss village problems. One Misik was appointed chairman and each leader came forward and told of his problems. He admitted that he produced some photographs and held a photograph up, and that at this stage when the elections had been mentioned he said, �I cannot say anything bad about the candidates or I will be fined K200�, and he said then he did not go on and mention anything about the elections or speak the words complained of. He said others brought up who would stand for Parliament and continued:

�Some people were coming from all over the place. Six people were campaigning and some people said they want the old member and some wanted others. Then there was a lot of talking going on. I got up and said �this is up to you how many people want to stand for election, nine or ten�.

I did not say anything against or bad about the people who were campaigning against me because I know I would be charged. I would be charged K200 if I did this. I told them �it is all up to you�, to go and talk to their village people to decide among themselves whom they wanted to vote for.

I told them if the ballot box comes around you do not have to whisper to your friend or to any of your wantoks to put this or that � it is up to you to decide. You can put Manesseh or a stone in there, anything.

I told them if you vote for somebody you do not have to go and tell your friends to vote for this or that man. If the people hear of this you can be charged for that.

I said I do not have to talk very much about this. It is up to you to go to the villages and talk about this.�

He then referred to the photographs � later he denied that the date of the meeting was fixed to coincide with the delivery of the photographs � and said the picture was of himself, anybody who wants to show his can show his, there will not be any photos on the ballot papers, it is up to you to decide where to put the cross, and if you want to take my paper along with you or my picture it is all up to you.� Misik was not called. The respondent was supported by a witness Makawaya who said he spent the time sitting with Mr. Voeto. The talk was about the plans for village development. Some people asked �why are these six other people campaigning against you� and he said �you do not have to talk about this. I know six people were campaigning against me but if I said something bad about them myself I will be fined K200�, and he denied that the words alleged by the petitioner�s witnesses were said. He denied also that there were any photographs of Mr. Voeto produced and he did not see Manesseh hold up a photograph of himself.

In short, the case made by Mr. Voeto was that this was a seminar about village development. He did not bring up the subject of elections. He denied he spoke any such words referred to by Sagapana or Iguajuya, that he tried to influence the people in any way. This was the first time he held such a party and it cost him K200.

That, then, is the evidence to which I have briefly referred and it is now for me to make up my mind what part of this evidence is such that I can act upon it to my entire satisfaction and that I can be sure in accepting.

It is convenient first to deal with the respondent�s evidence but in so doing, immediately I hasten to point out there is no onus of proof on him. The onus of proof is on the petitioner. Mr. Andrew said that his evidence was hardly credible and I have reached the conclusion that indeed it is beyond belief. There are a number of reasons for this. Consider the turn of events and the situation as at 14th May. The nominations had been closed. Two hundred and thirty people were invited and over 100 turned up. Never before had such a party been held by the respondent. He had not been doing any campaigning and it is not clear whether he campaigned at all. He was a big man in the area. True it is that he was not a big man perhaps so far as a man within his own village was concerned, but throughout the electorate he was regarded as a big man. He was the parliamentarian; he was associated with a co-operative company and indeed he agreed to a question put to him that he was the number one Government man, and added �Every little place would call the name of Manesseh�. Consider next, the elections were next month. There was no reason why he could not hold an election meeting. There was nothing to stop him inviting people and having an election meeting and even providing them with food. I am quite unable to accept his evidence that it was a seminar � the first one he said ever held � to discuss village problems, and I am entirely unable to accept the context in which he said the K200 was mentioned by him, that is, that he would have to pay that fine if he was to defame the candidates. There was nothing to stop him giving a good rousing speech as we see people giving all around the countryside, and the thought of himself bringing up the question of �spoiling� another at such a meeting to me is beyond belief.

I regret to say also I was not impressed with his demeanour in the witness box or in the Court or in the way in which he gave his evidence and thus, and I regret again to say it, I am unable to accept his evidence on the issues of this case.

Similarly in the case of Mr. Makawaya, he had formerly been a policeman but had been dismissed. He said there were no photographs, no photographs at all. He said they were not shown and he did not see Mr. Manesseh hold them up. Again having seen him in the witness box I am unable to accept his evidence. It was carefully brought out by Mr. Karczewski that the man was with Mr. Voeto all day, and if anybody could have seen the photographs which Mr. Voeto produced, it would have been Mr. Makawaya.

Turning to the evidence for the petitioner, even although I cannot accept the evidence of the respondent, for the petition to succeed the evidence of the petitioner�s witnesses must be such that I can act upon it. I have reached the conclusion that applying the strict standards I have referred to I am satisfied to act on their evidence. In my opinion, indeed on the whole of the evidence in this case, the evidence is overwhelming that Mr. Voeto said that �I made this party for you, you must vote for me�, and produced the photographs saying, �put your mark on that�, and I am satisfied that he said at least the statements referred to throughout the evidence, the substance of which is this, you will be fined K200 if you vote for another man but if you vote for me you won�t pay this money. I do not use the hearsay evidence other than to say that it is consistent with this finding.

I was impressed with Sagapana. He was not shaken in the witness box. The view I have taken on the evidence of Iguajuya is that, along the lines I have mentioned, although he may have gone on and exaggerated as to the K800 and K400, I am satisfied that he was a witness of truth so far as the statements he deposed to are concerned, the substance of which was that if they did not vote for Mr. Voeto they would be fined K200 and go to gaol. This is not a case, to use the test in Re Welland Election[cccvii]¹⁴, in which there is an honest conflict of testimony or in which the language is reasonably capable of two interpretations, one innocent and the other culpable.

Next, it must be borne in mind that Mr. Voeto had received some instruction in electoral offences and, for that reason and because of his long Parliamentary experience, I am satisfied that he was aware of the falsity of those statements and intended that the electors present should act on it. This was not contested by counsel for the respondent and it was on this basis that the case was argued.

Accordingly, in my opinion it has been proved to my entire satisfaction that Mr. Voeto by fraud prevented or obstructed the free exercise of the franchise by an elector which amounts to undue influence. Indeed, I am so satisfied beyond reasonable doubt. For all these reasons the petition succeeds on the ground mentioned, and I am therefore left in this position: that I am bound to make the declaration that the election was void. I shall direct the Registrar under s. 216 promptly to report the finding to the Speaker and to the Electoral Commission. I further order that the deposit be returned to the petitioner.

Declared that election void, Registrar directed to report finding to the Speaker and the Electoral Commission.

Solicitor for the Electoral Commission: C. Maino-Aoae, Acting State Solicitor.