I
have been able to observe those three witnesses when giving evidence and
d
compare them with Timothy Bobongi. Their
evidence cannot be lightly
dispensed with. They were confident, clear and unshaken under tough
cross-examination by learned
Counsel for the Petitioner. Their evidence too
had not been challenged seriously in anyway. At the same time, I must note
learned Counsel for the First Respondent had not put his client's case to
this witness during cross-examination to explain
or contradict. This failure
at times can be construed adversely against one's client. In this particular
case however,
I am confronted with what I regard as fairly solid evidence,
directly challenging the evidence of Timothy Bobongi. This simply
meant
someone had seen fit to come to this court and make a deliberate lie. That
is wrong and must be scorned at. Unfortunately
I am unable to say with
certainty who had lied and should be had up for perjury. I can go only on
probabilities. In this
instance, the weight to be attached to those three
defence witnesses evidence bears up more than that of Bobongi, not only
on
sheer numbers alone but also in terms of their demeanour, manner of
presentation and consistency of evidence. Ultimately,
sufficient doubt had
been raised by these three witnesses about Bobongi's evidence that George
Buga was seen outside
Honiara Casino carting several girls to Kukum Campus
Polling Station to cast their votes.
But even if that were true, (suming for one moment that that what Bobongi
alleges was true) I find nothing unlawful about his actions. He can
transport persons who want a lift to go to the polling station to cast their
votes whether they would vote for the candidate of his choice or not (voting
is by secret ballot). What is wrong, is
for him to offer a lift in exchange
for votes for his favoured candidate. There is no evidence or even any
suggestion
of that sort in this instance.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Secondly, there is insufficient evidence to support any allegation that
those girls did actually cast any votes using
names of other persons. In
other words, little evidence to support personation. In his evidence,
Bobongi could only say
those girls were taken and dropped off at the Kukum
Campus Polling Station. He saw them entering the Polling Station but did
not
know if those girls were duly registered or not, or whether they did cast
any votes or not and therefore personation
had taken place. At the most it
was assumed those girls personated others to cast their votes. Stanton Buka
and Martin
Posenau (PW 7 and PW 8) polling agents of the Petitioner, who
were present at the said polling station could neither confirm
nor deny the
allegations of this witness. When all the evidence is weighed and balanced,
I am unable to accept Bobongi's
evidence as true. Sufficient doubt had been
raised to cause me to rule against the veracity of his allegations, that
what George Buga did was part of the elaborate plan to aid and abet
personation.
Further it is important to noat apart from Bobongi's evis evidence, the only
other evidence adduced which made reference
to any Casino girls came as
indirect evidence from Ivan Kevin (PW 6). Unfortunately his evidence could
not be used directly
to support Bobongi's allegations (although it was
suggested), in that his evidence referred only to two Casino girls who voted
at Mbua Valley Polling Station. Kukum Campus Polling Station and Mbua Valley
Polling Station are not the same polling
stations. The Casino girls referred
to by Bobongi (if true) therefore couldn't have been the same ones referred
to by
Ivan Kevin.
Also any suggestions that Ivan Kevin's evidence corroborates Bobongi's
evidence of any plan does not hold water either.
Apart from the evidence of
Beui Lamani that Samani Deffe was a supporter of the First Respondent, there
is little evidence
to link Deffe with the elaborate plan to aid and abet
personation. Dausabea denied knowledge of Deffe and stated he only saw
him
for the first time the week before this case was due to be heard. There has
been no evidence, or suggestion either,
that Deffe was a member of the VAY
group or a supporter, and that he was aware of any elaborate plan to aid and
abet
personation.
It should also be pointed out that in the conversation alleged eged to have taken
place by Ivan Kevin, the purported comment
by Deffe made no reference to who
his preferred candidate was. So even if a name could have been given to
Kevin, it is
no guarantee that he would have voted for the First Respondent.
There was no mention of who Deffe supported or who Kevin supported;
it is
not known therefore who Kevin would have voted for if he had been given a
name to personate.
In evidence, Deffe denied meetingn on 7th August gust 1997. He
explained that day was spent sleeping and resting off the previous day's
work. He did not deny however,
he might have met him on another date. He
conceded too he might have said something about some Casino girls coming to
cast their votes who appeared drunk but the only one he could remember was
Carolyn Foasi, who not only voted but was a duly
registered voter.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Carolyn wlled as a defence witness to confirm Deffe's evidence. She She
denied any suggestions that other girls from
the Casino might have
accompanied her, or that she knew of anyone from the Casino who had voted.
She explained she went
to the polling station in a public bus, thus
excluding any suggestions she might have been transported there by George
Buga.
When all these evidence are put together, it raises doubt in my mind
concerning any plan, that Deffe might have been part
of or participated in
to aid and abet personation. There can be no corroboration accordingly, in
Kevin's evidence of
Bobongi's evidence of any such plan.
PLAN TO AID AND ABET PERSONATION:
With Bobongi's evidence severely challenged and undermined by the evie evidence
of other defence witnesses as discussed
above, how should this court view
Bobongi's evidence of a plan to aid and abet personation. That Bobongi's
credibility
had been tarnished, in my respectful view, is without question.
For instance, his evidence about George Buga's movements on
the afternoon of
election day had been seriously and successfully challenged; his description
of Silas Atu as the secretary
of the VAY group in 1997 was proved wrong by
the unchallenged evidence of Samson Faisi; also his description of a list
held by Silas Atu as thick as the Bible on the witness dock, could not have
been accurate if it was a list containing names
of people registered to vote
in the Vura area only. Atu had conceded he had a list with him that day but
it was not as
thick as the Bible on the witness dock. Respectfully,
Bobongi's description of the thickness of such a list was in my respectful
view, an exaggeration. It should also be noted there was nothing unlawful
about the existence of such a list or that
Atu had one in his hand. Atu had
pointed out in court the Petitioner's group also had a similar list with
them.
When all the eve had been duly shifted and weighed, I am not satisfied
d
it had been proven to my satisfaction that
there was indeed a meeting in
which an elaborate plan was worked out and agreed upon to personate names of
persons who
were not present in East Honiara Constituency to cast a vote.
Silas Atu denied attending any such meeting in which any such
plan was
discussed, though he conceded a number of meetings were held at Solo
Simata's house. The same was also said
by George Buga and Samson Faisi.
These all denied any such plans being discussed at any such meetings.
Samson Faisi did point out he was the secretary of the VAY group that year,
but denied any such plans were discussed in
any of the meetings he attended.
All denied that the majority of the group were supporters of the First
Respondent, though
they conceded there were some within the group.
Having seen and heard those witnesses giving evidence, I have been been impressed
with the way their evidence had been
given. It has more the ring of truth
than Bobongi's evidence. I find their answers and explanations to questions
and
suggestions put to them to be clear, reasonable and consistent. I do not
find them to be evasive or on the defensive and reluctant
to answer
questions as might have been suggested. They conceded many things and in my
view demonstrated an awareness
and a concern to be truthful. On the crucial
issues, they remained firm and unshaken.
When everything is weighed, I cannot say that I am sure on the balance of
probabilities that what was alleged by Bobongi
was correct and true and can
be relied on in preference to what the defence witnesses have said. It
wasn't the case where
the defence witnesses' evidence had been completely
discredited or discounted to the point that the Petitioner's main witness's
evidence is more credible and reliable on the balance of probabilities. I
accept the burden of proof is a little less
than the criminal standard and
higher than the civil burden, but still I am not satisfied it had been duly
discharged
in this case.
But even if it were so, that there was a plan, the subsequent uent evidence
adduced in support had been severely undermined
by defence witnesses to the
point that I cannot say with certainty and confidence that any such plan had
been put into
effect by anyone. There was no evidence for instance to
directly implicate Silas Atu about any improper activities that day.
The
most that could be suggested was being seen holding a list as thick as the
Bible on the witness dock. I have formed
the view however after hearing
evidence that this could only have been an exaggeration. Silas Atu conceded
holding a
list but there is little evidence to suggest that it was used for
any improper purposes. Timothy Bobongi could only assume
it was used to
monitor the names of persons who were on holiday or who were students at
SICHE, because he conceded he
was not shown the list. If he was an active
member and supporter of the First Respondent, who had gone door to door,
campaigning and putting up posters around Vura area, why would he be denied
access to the list. If what he said was correct,
that he was not a
registered voter, then surely one would have expected him to be one of the
first persons to be given
a name by Atu to use either at Vura Polling
Station or at Kukum Campus Polling Station. He was never given any name or
shown names on the list that he could use, or testified of anyone having
been shown such names or list to use. It appears
he never voted either, in
spite of the fact that he was an ardent supporter of the First Respondent
until just recently.
Also the fact he might have been told to go and vote at
Kukum Campus Polling Station implies a name had been identified for
him to
use or that there was someone at Kukum Campus to assist him find a name to
use. There was no evidence of such.
s I have stated and repeat, when all these matters are take taken into account,
I am not satisfied it had been proven to my
satisfaction that there was
indeed any such elaborate plan to aid and abet personation by Silas Atu or
any of the persons
named in the evidence of Bobongi.
SPECIFIC PERSONS ALLEGED:
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
That there were personations however, I proven in respect of some oome of
the persons named in the petition. However what
is important to note from
the outset is that I am not satisfied these were done by or on behalf of the
First Respondent
by any agent.
Paragraph 4 (c): PHILIP SUA.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
This witness found that his name had been crossed out at the Mbua Valley
ley
Polling Station when he went to cast his
vote in the afternoon.
Unfortunately there is no evidence to suggest that this was done as part of
the plan to aid and
abet personation as alleged by Timothy Bobongi.
There is no direct evidence either to link Samani Deffe (Polling Assistant
at Mbua Vaua Valley Polling Station) with this personation;
that he was
instrumental in facilitating this personation and others. The only evidence
adduced however which sought
to implicate Deffe was in the conversation
alleged by Kevin to have taken place on 7th August 1997. When the
contents of that conversation are analysed properly, there is very little to
implicate him with
this particular personation or indeed with the rest. All
that his evidence amounted to was that Deffe had told him that had
he gone
to see him at Mbua Valley Polling Station where he was working, he would
have given him a name to use. He did
not say anything about voting for the
First Respondent. Neither did he ask Kevin who he voted for. Also we do not
know
who Kevin voted for in the elections. If it had been for the
Petitioner, then he would have been given a name to use so that
he could
vote for the Petitioner instead. In cross-examination, he conceded Samani
Deffe did not ask him who he voted
for and neither did he tell him who he
voted for. It was therefore merely an assumption to say that Samani Deffe
gave
those names so that votes could be cast in favour of the First
Respondent.
Paragraph 4(d) and (e):
The can be said in respect of Fred Toata and the claim by Laey Laeni Bata
that he noticed Sas Laeni�s name had been crossed
out when he went to cast
his vote. Sas Laeni was at Malaita on the said day and therefore could not
have been present
in person to cast a vote. Fred Toata also confirmed in
Court he was at Malaita on the said day and therefore could not have
voted.
Again the allegation sought to be raised was that this was part of the
elaborate plan to aid and abet personation
of persons who were not present
to vote in favour of the First Respondent. Unfortunately, there is very
little evidence
to link Deffe with this. Not only was it never put to Deffe
that he may have been a member of the VAY group, but the indirect
evidence
of Ivan Kevin did not come near to implicating him directly in such a
scheme.
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Paragraph 4(f):
The allegation made under this paragraph assumed that Sauminia Laeni had
voted in the morning of that day but that
her name had not been deliberately
crossed out thus providing scope for personation. Sauminia was never called
to give
direct evidence on this. Bata Laenia's evidence was based on hearsay
evidence, that he was told by Sauminia that she had gone
to cast her vote in
the morning. I reject this evidence. But even if it were to be accepted, it
is clear no vote was
ever recorded against her name and so rules out
automatically any allegations of personation.
Paragraph 4(g):
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The only evidence suggesting impropriety against Deffe came from the
purported conversation alleged to have taken
place between him and Kevin.
There is however nothing or little in that conversation to suggest that
those names were
given so that those two so-called girls could cast their
votes in favour of the First Respondent, or that Deffe was part of
the
elaborate plan to aid and abet personation. It is as much anyone's guess
whether those two Casino girls did cast
their votes if true, for the first
Respondent. It is quite possible they may have cast votes for the
Petitioner.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Deffe however denied specific reference to wo Casino girls who appearepeared
drunk and were given names to use. He stated
on oath he could only remember
the name of one Casino girl who actually came and voted, but denied
knowledge of anyone
else. That girl (Carolyn Foasi) had been called and gave
evidence denying any suggestions that other girls from the Casino
might have
accompanied her that day.
I
am not satisfied it had been proven to my satisfactionhe evidence
before mere me that Deffe arranged for any two Casino
girls as part of an
elaborate plan or scheme to aid or abet personation in favour of the First
Respondent.
Paragraph 4(h)(i):
The only evidence of personatioRebecca Tari came from an i an indirect
source. One of the Polling Agents Martin Posenau,
for the Petitioner
recalled being told by another Polling Agent Stanton Buka, that when the
said student arrived to cast
her vote she found her name had already been
used. Unfortunately, when Stanton Buka gave evidence he could not recall
this particular incident. Rebecca Tari was not called to confirm this. I am
not satisfied on the evidence before me this had
been established to my
satisfaction on the balance of probabilities.
4(h)
Leave to withdraw the allegation in respect of Kaigikimua was made and
granted during the hearing of the case.
4(h)(iii) & (iv):
It has been concedeevidence of personation has been produced and so
alle allegations must be dismissed.
Paragraph 4(i):
Again has been very little evidence of personation and so the
he
allegations raised under this paragraph must also
be dismissed
Paragraph 4(j):
I
accept personation had been proven in respect of the registegistered voter
Abunolo James but no evidence of any scheme
or plan to aid and abet
personation by an agent of the First Respondent. There is no evidence to
suggest that the person
who personated Abunolo James was anything more than
a supporter.
Paragraph 5:
he allegation under this paragraph was that a voter by the the name of Everlyn
Wilson Ulasi was registered twice at Naha
and Mamulele Polling Stations with
numbers 11:06:1019 and 11:07:426, and voted twice. In her evidence before
this court
however, Everlyn denied voting twice. She only admitted having
voted at Mamulele Polling Station. I find her to be a truthful
witness. She
was confident, clear and unmoved in her evidence. I am not satisfied this
person voted twice. What most
likely happened with a similar name registered
at Naha was that it might have been used by someone else. If any vote is to
be disallowed, it should only be in respect of the vote cast at Naha.
Paragraph 6: (i) allegations of corrupt practices of aiding, abettibetting,
counselling or procuring the commission of
the offences of personation.
I
haveady dealt with this submission indirectly and do not need teed to repeat
myself. It must be dismissed.
Paragraph 6: (ii) treating:
p class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Learned Counsel for the Petitioner has correctly conceded that there is e is
insufficient evidence to prove wrong doing
by the First Respondent. I set
aside this allegation.
3. (PARAGRAPH 7) SECTION 78(1) [section 79(1) of the Revised Edition 1996]
96]
OF THE NATIONAL PARLIAMENT ELECTORAL PROVISIONS
ACT 1980:
Sub-paragraph 7(a):
The allegation under this sub-paragraph was raised againstpporter, by
the name name of Suluburi, that he told people lining
up to vote for the
pineapple, the First Respondent's symbol. Unfortunately no evidence has been
adduced in support of
this and accordingly this allegation must be set
aside.
Sub-paragraph 7(b):
The allegation is made against Elishah Safue, the First Respondent's
campaign manager, that he told people waiting to
vote for the sign of the
pineapple. Witness called in support came from Beui Lamani (PW11). His
evidence was that Elishah
held one list containing names of people from the
Lau Valley area and told whoever came past where he was sitting whether
their name was on the list or not.
Elishah Safue was called to give evidence and be subjected to
cr cross-examination. Safue denied holding any list in
his hand and telling
people whether their names were on the list or not. But even if that were
so, I fail to see anything
drastically wrong with that. A list of names is
used to assist people coming to vote to check whether they would be able to
cast a vote or not. If their name is not in the list, they would not be able
to vote. Of-course like anything else, the
list can also be mis-used for
other unlawful purposes. Unfortunately that has not been established in this
case; that
Safue used the list for personation purposes for instance.
Sub-paragraph 7(c):
Thegation raised in the petition was that Robert Soeasi, a ca a campaign
manager of the First Respondent, during the hours
of voting told people
lining up to vote for the pineapple. The witness called in support was again
Beui Lamani. His evidence
however consisted only of a reference to what he
overhead Soeasi whispering to one woman, Ugata, who was standing in front
of
them, to vote for the pineapple; nothing about telling people lining up to
vote for the pineapple or walking up and
down telling people to vote for the
pineapple.
In defence, Robert Soeasi was called. He denied being a campaign manager of
the FirstFirst Respondent, though he conceded he,
was a supporter. He also denied
telling anyone to vote for the pineapple or whispering to any woman called
Ugata and
telling her to vote for the pineapple. But again even if this were
true, I fail to find how this would amount to an offence
against section
79(1) of the National Parliament Electoral Provisions Act 1980.
Section 79(1) states:
�No person other than a candidate shallshall within any building where voting for
the election of a member of the National
Parliament is in progress, or on
any public way within a distance of fifty yards of any entrance to such
building, bear
or display any card, symbol favour or other emblem indicating
support for a particular candidate or political party and no
person shall
within two hundred yards of any such building make any public address
indicating support for a particular
candidate or political party.�
he actions of Soeasi do not fall within the four corners ofrs of the offence
created by section 79(1). They would be more
of a private conversation if
anything, between him and a close relative (note Soeasi described Ugata as a
cousin sister).
I find little evidence to support the ground pleaded that
Soeasi told people lining up to vote for the pineapple.
Paragraph 7(d):
<
The allegation raised here was that Benny Abana a supporter of the the First
Respondent told people to vote for the pineapple.
The main witness was again
Beui Lamani. He stated Benny sat at the side of the line of people and told
everyone who came
past to vote for the pineapple.
What nevertheless was sought to be portrayed ining this ground was to
show the kind of tactics adopted by the First
Respondents campaign managers
and active supporters, Respectfully however, I am not satisfied this had
been established
on the balance of probabilities.
4. (PARAGRAPH 8) IRREGULARITIES IN THE KOFILOKO VOTERS LIST:
What was alleged was that two pages (5 and 7) of the Kofiloko Voter's list
were not available for most part of the morning
on election day and so many
voters who turned up could not cast their votes.
It is not disputed that when polling st, pages 5 and 7 of the Kofi Kofiloko
Voter's list were missing. What is in dispute
is the time it took for the
missing pages to be restored to the Voter's list for use. Beui Lamani stated
he went to cast
his vote at about seven o'clock in the morning only to find
the page on which his name was recorded in the list missing from
the list of
voters held by the Polling Assistants. He states there were many others who
came only to find the same problem
and so left. The missing pages were not
made available until around twelve noon. He stated he was sure of the time
as
he had a watch at that time.
The First Respondent called a number of witnesses to the evidence of
Lama Lamani. Robert Zutu, the Assistant Returning
Officer for East Honiara
Constituency gave evidence regarding the missing pages. He is a crucial
witness in this case.
He states he was informed about the missing pages at
between 7.30 - 8.00 am. Both Maesua and Dausabea had gone personally to
his
office to inform him of the discrepancy. Zutu states he immediately printed
out copies of the relevant pages and
after showing them to Maesua and
Dausabea he personally transported and delivered them to the polling station
by about
8.15 am and told them to use them straight away. He was unshaken in
his view about the time the incident was reported and attended
to by him. He
confirmed it was still quite early in the morning when the discrepancy was
noticed and attended to by him.
Mr. Dausabea in his evidence before this Court confirmed the time the
discrepancy was discovered at around 7.15 am. He
had just cast his vote at
Ilia Polling Station when he was informed by phone that those pages were
missing. He said he
drove straight down to the Honiara Town Council and
arrived there at about 7.30 am. Mr. Maesua arrived shortly after in a taxi
and they went in together to see Robert Zutu. He confirmed what was said in
evidence by Robert Zutu. He also put the
time the pages would have been
restored to the list at around eight o'clock. He states in evidence he
personally followed
the white hilux Zutu was in until it turned off at Vura
Road to go to Kofiloko whilst he drove on to his house. He states he
received a phone call from his brother which led him to believe the papers
were delivered at around eight o'clock.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Mr. Jamesmani, the Returning Officer for the East Honiara Constituenituency
also confirmed in evidence that the matter
was reported to him and attended
to straight away fairly early in the morning. This is entirely consistent
with the evidence
led by Robert Zulu and confirmed by Dausabea.
Faced with such sevidence from reliable and objective witnesses who
ha have no reason to lie, I find it very difficult
to accept the evidence led
by Lamani that the papers were not made available until about twelve noon.
I
am satisfied on the evidence before me the correct time the miss missing pages
would have been sorted out for use at
the Kofiloko Polling Station was that
given by Robert Zutu at around 8.15 am and not at twelve noon as described
by Beui
Lamani.
On the question whether trregularity amounted to any breach of the
National Paal Parliament Electoral Provisions Act 1980,
in my respectful view
this must be answered in the negative. The hours of voting as stipulated
under section 37(2) of
the revised law, was to be from seven o'clock to five
o'clock in the afternoon. The pages were made available soon after they
had
been found missing (at the most l -1 � hours). Those who missed out in the
early hours would have had ample time
to cast their votes after half past
eight in the morning. It wasn't the case where they were prevented from
voting that
day or told that they couldn't vote that day. There has been no
evidence to suggest that those who were affected were never
given any
opportunity later that day to cast their votes. If a voter decided not to
wait that morning for the relevant
pages to be brought or to return later
and cast their votes, that is their individual right to exercise. Nobody can
force
them to vote and equally I am not satisfied they had been deprived of
their right to go to the polls and cast their vote. If
anything, what
occurred was a temporary suspension of the rights of those voters affected
for approximately 1 � hours
only. That must surely be a minor irregularity.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
But even could have amounted to non-compliance with the Act, I am m am more
than satisfied the voting was conducted in
accordance with the principles of
the Act and that the irregularity did not affect the result of the election.
It was
addressed as soon as it was discovered. There was no evidence of
improper delay either or impropriety, on the part of the Polling
Assistants
such that it could be said there was an attempt to interfere with the voting
at Kofiloko Polling Station,
and far from being condemned by any ordinary
man as a "sham or a travesty of an election by ballot" (see Morgan and
Others v. Simpson and Others (1974) 3 All ER 722 at 731). It was more an
inadvertent oversight, but handled and dealt with promptly and efficiently.
PARAGRAPHS 9 0:
These have been dealt with.
ORDERS OF THE COURT:
1. Dismiss paragraphs 4(c), 4(d), 4(e), 4(f), af), and 4(j) - personation proved,
but did not affect result of the election.
2. Dismiss paragraphs 4(h), and 4(i) - i) - personations not proved.
Dismiss paragraph 5 - pers personation proved in respect of name of Everlyn
Ulasi at Naha but did not affect result of election.
4. Dismiss paragraphs 6 - 10 in their entiretyirety.
5. Determine pursuant to section 84(3) of the National Parliament (Electoral
Provisions) Act 1980 (1996 Revised Edition)
that the First Respondent was
duly elected.
.
ALBERT R. PALMER
THE COURT.>
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