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Vokia v Devesi [1999] SBHC 29; HCSI-CC 254 of 1997 (26 March 1999)

HIGH COURT OF SOLOMON ISLANDS

HC-CC 254 of 1997

JAMIE VOKIA

-v-

BADDELEY DEVES1

High Court of Solomon Islands
(Muria, CJ)

Hearing: 15, 16, 17 & 19 March 1999
Judgement: 26 March 1999

C. Ashley for Petitioner
A. Radclyffe for Respondent
S. Manetoali for Attorney General

MURIA CJ:

This is an election petition brought by the petitioner against the respondent alleging fundamentally two grounds which are contained in the petition filed on 10 October 1997. Essentially in his grounds of petition, the petitioner alleges personation and under age voting by voters. These allegations are denied by the respondent.

Background to the Case

The petitioner and the respondent were among the five candidates who stood for election for the North East Guadalcanal Constituency at the last National General Election on 6 August 1997 during which the respondent polled 1,171 votes while the petitioner was the runner up, polling 1,166 votes. The respondent, undoubtedly, won by a small majority of only five votes. The petitioner, having lost, now sought to challenge the result of the election through his petition filed herein.

The Issues

Originally, the petitioner alleged five acts of personation, eight acts of voting under age, four acts of treating, numerous acts of threat intimidation, and undue influence, and an alleged irregularity at the polling station regarding campaigning within three metres of the polling station. On 15 December 1997, the petitioner applied and was granted amendments to his grounds of petition. At the commencement of the hearing of this petition the petitioner abandoned all the other allegations and pursued only the allegations of personation and under age voting. The two issues of personation and under age voting must now be established by the petitioner.

The Standard of Proof

An Election petition is a civil case and, although it is as such, where allegations of corrupt or illegal practices are made, the standard of proof is that the grounds must be proved to the entire satisfaction of the Court. This is just short of the criminal standard of proof. Cases in this jurisdiction have now firmly established this test of proof where alleged corrupt or illegal practices are raised in election petition cases. Alisae -v- Salaka [1985-1986] S.I.L.R 31; Mamata & another-v- Maetia (1985) Civ. Case. No. 115 of 1984; Maeta -v-Dausabea (1993) Civ. Case No. 266 of 1993; Wate -v- Folotalu (1993) Civ. Case. No. 241 of 1993 and Hite -v- Paul (1993) Civ. Case No. 207 of 1993. These cases show that the Court considers allegations of corrupt or illegal practices as very serious and require higher degree of probability. Whether this standard can be described as "proof that is sufficiently clear to support such an allegation" as put by Ward CJ in Haomae -v- Bartlett [1988-1989] SILR 35 or as proof to the "entire satisfaction of the Court," as stated by Wood CJ in Alisae-v-Salaka in my view, matters not. It is the degree of probability commensurating with the seriousness of the allegation that must be established. Certainly in allegations of corrupt or illegal practices there must be clear and cogent proof to satisfy the Court of such allegations. It is something more than balance of probabilities. It is in this regard that the test set out in Alisae -v- Salaka is the more preferred one.

The Legislative Provisions.

Before I return to the evidence in this case, it would be helpful if I set out the provisions of the National Parliament (Electoral Provisions) Act dealing with election offences in particular, the matters of personation and under age voting. Firstly, section 66 provides:

"66.(1) No election shall be valid if any corrupt or illegal practice is committed in connection therewith by the candidate elected or his agent

(2) Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, his election if he has been elected, shall be void and he shall be disqualified for election as a member of the National Parliament for a period commencing on the date of judgment by the Court to the date of dissolution of the National Parliament following that judgement".

Under that section, the corrupt or illegal practice must be shown to have been committed by the respondent or his agent. It must also be shown that it had been committed "for the purpose of promoting or procuring the election" of the respondent. The consequence of such an act, if proved, would be that the election of the respondent will be held to be invalid with the added consequence of being disqualified to stand for election thereafter until Parliament is dissolved. Thus the intention of section 66 of the Act is obviously directed at the petitioner proving that the alleged corrupt or illegal practice must be committed by the candidate or his agent and done so for the purpose of promoting or procuring the election of the respondent.

One such corrupt practice is personation which is deemed to have been established in the situation set out in section 75 which provides:

"75. Any person who at any election applies for a ballot paper in the name of another person or tenders a vote in the name of another person whether that name is the name of a person living or dead or of a fictitious person, or who, having voted once at any direct election, applies for a ballot paper or tenders a vote at the same election, in his own name, which he is not entitled to tender under the provisions of this Act shall be guilty of personation within the meaning of this Act."

Not only that a person who votes in the name of another person would be, guilty of personation but also a person who applies for a ballot paper in the name of another person would be guilty of personation. No doubt Parliament sees it appropriate that not only the actual casting of the ballot paper must be safeguarded, but that the process of obtaining that ballot paper must also be protected. This in my view is essential since the purpose of applying for a ballot paper is to cast a vote. The mens rea which necessarily must be proved in this offence is the intention or purpose of voting in another person's name.

In addition to the consequence of invalidating the election of a candidate who is guilty of the corrupt practice of personation, he also faces a possible punishment of $300.00 or three months imprisonment Section 74 provides for this as follows:

"74. Any person who is guilty of personation or of aiding, abetting, counselling or procuring the commission of the offence of personation, shall be guilty of a corrupt practice and liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and such imprisonment".

The alleged acts of personation in the present case, however, were not alleged to have been committed by the respondent nor by his agents nor for the purpose of promoting or procuring his election. No evidence had been adduced by the petitioner that the respondent had committed, aided, abetted, counselled or procured the commission of the alleged corrupt practice of personation. The alleged act of personation, if at all, mentioned by the witnesses Joerick Asae, Francis Lokosi (Jr), Jimmy Hoasi and Rose Vitho, have not been shown to have been done for the purpose of the election of the respondent nor has it been shown to be the acts aided, abetted, counselled or procured by the respondent nor has it been shown to be acts of his agents. Their evidence was simply that they voted in other persons' names.

The evidence on this allegation just does not connect with the respondent or his agents and so cannot be sustained. At most the evidence of those witnesses who said that they voted in the name of other people would now expose them to further investigation if necessary, for possible prosecution both under the National Parliament (Electoral Provisions) Act and the Penal Code. However that is a matter for the Director of Public Prosecutions and not for this Court to consider in these proceedings.

I reject the allegations of personation in this petition and they are dismissed.

The Allegation of Underage Voting.

The petitioner's case here is that the witnesses called and who gave evidence were under the age of 18 years when they voted at the last National General Election. Those who were called to give evidence were said to be school students at their respective schools.

The law on this is that only those who are 18 years and above can be registered as electors and therefore can vote at elections. See sections 55 and 56, Constitution. As such a person who is under the age of 18 years have no right to vote at any election. If such a person votes at any election, he commits an act of illegal practice. Not only that the person who votes in such situation commits an act of illegal practice but also the person who induces or procures such person to vote, knowing that such a person is prohibited by law to vote, commits an act of illegal practice as stated under section 77 of the Act which provides:

"77. Any person who-

(a) votes, or induces, or procures any other person to vote, at any election, knowing that he or such other person is prohibited by any provision of this Act or of the Constitution or any other law for the time being in force in Solomon Islands from voting at such election; or

(b) before or during an election knowingly publishes any false statement of the withdrawal of a candidate at such election for the purpose of promoting the election of another candidate;

shall be guilty of an illegal practice and shall be liable to a fine not exceeding one hundred dollars or to imprisonment for a term not exceeding three months or to both such fine and such imprisonment, and shall be disqualified during the period of three years from the date of his conviction, from voting at any election."

Thus for a respondent in an election petition, in addition to having his election declared invalid under section 66, he also faces, where he is charged, the possibility of a fine of $100.00 or imprisonment of three months or both as well as being disqualified from voting for a period of three year's from the date of conviction.

Having said that, I turn to the allegations raised in this ground of the petition. This ground simply alleges that "the following persons had voted during the said election when in fact they were not entitled to vote being under the age of 18 years". There is no allegation that the respondent had induced or procured the students concerned to vote. In terms of sections 66 and 77, it is essential that the petitioner must establish that the respondent had done something to induce or procure under age persons to vote for him or for any candidate at the election. Nothing of the sort has been alleged against the respondent at all. The petitioner simply led evidence that the students voted at the election.

Like in the allegations of personation, the petitioner simply called the under aged students to testify that they voted at the last election. No attempt and certainly no evidence has been given by any of the students called to establish that they voted at the election, at the instigation of the respondent. This link is absent in this allegation and throughout the evidence of the witnesses.

In addition, the witnesses simply gave evidence that they attended their respective Primary Schools in 1997 and voted at the election. Rose Tala gave evidence that she attended Talaura Primary School in 1997 and she was in Class Five then. She said she voted and that she was 18 years of age when she voted in 1997 election and that she is now 20 years old. While I do not accept her evidence of her age which is clearly inadmissible there is no admissible evidence led by the petitioner as to whether she was under 18 years when she voted. The Talaura Primary School Admission Register produced in Court, is no evidence of the witness's age. It is simply a School Admission Record. In the same way the evidence of Mathew Kairage, Tada Bua, Ella Doana and Jimmy Cris Hoasi cannot be regarded as evidence showing that they were under 18 years of age when they voted. They simply stated that they voted while they were still school children. Looking at them, one might guess that they were or probably still are under 18 years of age. But this is a Court of Law and as a matter of law, in an allegation of under aged voting, the age of a person said to have voted while still under the age of 18 years must be strictly proved. The proper course is that suggested by Phipson on Evidence, 14th Ed. at page 577, paragraph 21 - 20, where the learned author pointed out that the evidence of a witness who purports to give evidence directly as to his own age or place of birth is inadmissible under the hearsay rule. However, such evidence may be admitted when proof of age is by production of a certified copy of the entry in the Birth Register. In the present case no such evidence has been produced and this is fatal to the petitioner's case. Without proof of the actual ages of the witnesses called there is no way that the allegation of under age voting can be substantiated. The evidence of Willy Atu is of no help to the petitioner either in these allegations.

Sadly I must point out, as I did earlier in relation to the personation allegation, the witnesses called by the petitioner have given evidence which did not at all, implicate the respondent or his agents. The evidence led, simply points to an incriminating situation in which the witnesses have now been put to. I have grave doubts if the witnesses have been advised as to the effect of giving self-incriminating evidence, as has happened in this case.

I have considered all the evidence in this is case. As all the other grounds raised in the petition have not been proceeded with they are formally dismissed. This petition has proceeded only on the two grounds dealt with in this judgement and on the evidence before the Court, they too must be dismissed.

The result is that the election petition brought against the respondent is dismissed and accordingly determines pursuant to section 84(3) of the Act, that the respondent was duly elected. The Court will certify that determination to His Excellency the Governor-General with the result that the election shall be confirmed.

Costs to the respondent.

(Sir John Muria)
CHIEF JUSTICE