MR. ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA [2025] SADC 20

First Applicant: MR. ALEXANDER HYDE Counsel: MR S. OWER KC IN PERSON WITH MS P. EWENS AND WITH MR D BLYTH - Solicitor: WOODBURN & CO First Respondent: ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA Counsel: MR T GOLDING SC WITH MR P LEESON AND MS Z UNDERWOOD - Solicitor: CROWN SOLICITOR'S OFFICE Second Respondent: JING LI Counsel: MS H. LUU - Solicitor: ILES SELLEY LAWYERS Hearing Date/s: 17/10/2023, 18/10/2023, 27/10/2023, 06/12/2023, 07/12/2023, 08/12/2023, 22/01/2024, 23/01/2024, 24/01/2024, 25/01/2024, 29/01/2024, 31/01/2024, 02/02/2024, 26/02/2024, 04/09/2024, 06/09/2024, 13/09/2024, 20/09/2024, 09/10/2024, 28/10/2024, 14/02/2025 File No/s: CIV-22-013997 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3) [2025] SADC 20 Judgment of his Honour Judge Burnett 7 March 2025 LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - JURISDICTION AND POWERS OF COURT CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE LEGISLATURE - ELECTIONS AND RELATED MATTERS - DISPUTED ELECTIONS - DISPUTED ELECTION COURTS OR TRIBUNALS In October and November 2022, the City of Adelaide conducted an election, by way of postal vote, under the Local Government (Elections) Act 1999 (SA)(the Elections Act) and schedule 1 of the City of Adelaide Act 1998 (SA). That election included the election of four councillors for the Central Ward. The results of the election were declared on 18 November 2022 and four persons were returned as elected, including the second respondent, Mr Li. The petitioner, Mr Hyde, was an unsuccessful candidate and was the last person excluded. After preferences, the petitioner received the fifth highest number of votes. The margin between the petitioner and the second respondent was 24 votes, taking into account the transfer value of votes under the counting system. By a petition lodged with the Court of Disputed Returns on 16 December 2022 and later revised on 29 March 2023 and 26 June 2023, the petitioner has challenged, pursuant to Part 13 of the Elections Act, the validity of the election. The petitioner alleges that there had been illegal practices that have affected the result of the election and has sought relief including declarations that the elected persons, -- 1 of 107 -- including the second respondent, were not duly elected and a declaration that the election for the Central Ward was void. The illegal practices alleged by the petitioner included: (1) that the second respondent offered a bribe to persons with a view to influencing the vote of a person at an election or interfering with the due course of an election contrary to s 57(1)(b) and s 57(1)(c) of the Elections Act; (2) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent acted as an assistant to a person voting at the election contrary to s 61(1) of the Elections Act by taking possession of postal voting papers for the election; (3) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent took possession or attempted to take possession of postal voting packs contrary to s 61(4) of the Elections Act; (4) between 14 October 2022 and 10 November 2022, at least 73 persons had made a statement in the declaration for the postal voting and/or on the application for enrolment that was, to their knowledge, false or misleading in a material respect or had marked a vote on the ballot paper which had not been issued to them (contrary respectively to ss 64(1) and 64(2) of the Elections Act) and further that those 73 persons had dishonestly exercised a vote at an election to which they were not entitled contrary to s 58(1) of the Elections Act. The petitioner also alleged that the individual illegal practices constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election under the common law of elections. The first respondent, the Electoral Commissioner of South Australia, and the second respondent opposed the petition. Held: (1) The common law of elections does not apply to a local government election conducted under the Elections Act: Sue v Hill (1999) 199 CLR 462, Hudson v Lee (No 2) (1993) 177 CLR 627 applied; Featherston v Tully (2002) 83 SASR 302 distinguished; Aldridge v Electoral Commissioner of South Australia [2010] SASC 194 considered. (2) The admission of hearsay evidence in a matter before a tribunal where the rules of evidence do not apply is governed by the principles set out in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41. The evidence must be rationally probative and not cause unfairness or disadvantage to the other party. The Court must consider the seriousness of the allegation in respect of which the hearsay evidence is sought to be used and how that allegation may otherwise be proved. (3) The allegation of bribery was not made out. (4) The allegations that persons, acting on behalf of the second respondent, acted as an assistant to a person voting at the election contrary to s 61(1) of the Elections Act were made out in two instances, namely in relation to the two persons shown to be dealing with five ballot papers in the photographs outside the Vision on Morphett Apartments on 27 October 2022 and in relation to Mr Jin and Mr Bai shown to be dealing with 10 ballot papers at the Stonemill restaurant, on 27 October 2022. (5) The allegations that persons, acting on behalf of the second respondent, had in their possession postal voting papers (which had not been issued to them as an elector in their own right), contrary to s 61(4) of the Elections Act were made out in three instances, namely by the two persons shown in the photographs outside Vision on Morphett, by Mr Jin and Mr Bai at the Stonemill restaurant and by Mr Zhang when he collected unfilled ballot papers from apartments. (6) The allegations that persons had dishonesty exercised a vote at an election (contrary to s 58(1) of the Elections Act), made a statement in the voting declaration that was, to that person’s knowledge false or misleading in a material respect (contrary to s 64(1) of the Elections Act) and voted or made a mark on a ballot paper, not being the ballot paper issued to the person (contrary to s 64(2) of the Elections Act) were made out in relation (a) 16 of the 73 persons identified in Appendix A to the petition; (b) the -- 2 of 107 -- persons in possession of the five ballot papers shown in the photographs outside the Vision on Morphett Apartments on 27 October 2022; (3) Mr Zhang when he collected the unfilled ballot papers from apartments. (7) A breach of s 58(1) is presumed, under s 73(2) of the Elections Act, to have affected the result of the election unless the contrary is proved on the balance of probabilities. Considering the totality of the contraventions of s 58(1) comprising the 16 identified persons, the persons in the photographs outside the Vision on Morphett Apartments in possession of and dealing with the 5 ballot papers and the unascertained number of ballot papers collected and filled in by Mr Zhang, the presumption applies. No evidence was adduced by the respondents to rebut the presumption, although the evidence of the breaches must be considered in the circumstances that were found to exist. (8) Alternatively, the individual breaches, may be considered in aggregate in determining whether it has been established, on the balance of probabilities, that the illegal practices affected the result of the election pursuant to s 73(1) of the Elections Act. The Court is satisfied that the result of the election was so affected, taking into account the 10 ballot papers being dealt with by Mr Jin and Mr Bai, the 5 ballot papers shown in the photographs outside Vision on Morphett, the unfilled ballot papers collected by Mr Zhang, and the 16 identified persons whose ballot papers, the Court has found, were not filled in by them. Local Government (Elections) Act 1999 (SA) ss 4, 5, 10(1), 14, 16, 37, 39, 39(11), 47(2), 48, 57(1)(b), 57(1)(c), 58, 58(1), 59, 61(1), 61(2), 61(4), 64(1), 64(2), 66(2), 67(5), 69(1), 70, 71(2), 71(3), 71(4), 72, 73(1), 73(2), 92, 107(3), 107(4); City of Adelaide Act 1998 (SA) Clause 2 of Schedule 1, Clause 18 of schedule 1, s 19 schedule 1, Clause 4 of Schedule 1; Commonwealth Electoral Act 1918 (Cth) ss 360(2), 362, 363(3), 364; Surveillance Devices Act 2016 (SA) ; Limitation of Actions Act 1936 (SA) s 48; Legislation Interpretation Act 2021 (SA) s 10, referred to. Masters Home Improvement Pty Ltd v North East Solution Pty Ltd (2017) 372 ALR 440; Carr v Baker (1936) SR (NSW) 301; Sue v Hill (1999) 199 CLR 462; Hudson v Lee (No 2) (1993) 177 CLR 627; Featherston v Tully (2002) 83 SASR 302; Aldridge v Electoral Commissioner of SA & Ors [2010] SASC 194; Briginshaw v Briginshaw (1938) 60 CLR 336; SJ Berry Pty Ltd v McEntee [2022] SASCA 133; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; The King v War Pensions Entitlement Appeal Tribunal: exp Bott (1933) 50 CLR 228; In the Matter of Hyde [2023] SASC 146; Jones v Dunkel (1950) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Australian Securities & Investments Commission v Rich (2009) 236 FLR 1; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Smith v Samuels (1976) 12, considered. -- 3 of 107 -- -- 4 of 107 -- ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3) [2025] SADC 20 Contents Introduction...........................................................................................................4 The Election ...........................................................................................................4 The Elections Act and the Petition ......................................................................7 The Common Law of Elections .........................................................................11 Procedure and Evidentiary Framework ...........................................................17 Application of the Briginshaw Standard...............................................................17 Hearsay Evidence .................................................................................................17 The Trial ..............................................................................................................19 Delay in the Hearing of the Petition .....................................................................19 The Witnesses........................................................................................................22 Jones v Dunkel ......................................................................................................25 Background Facts ...............................................................................................30 Period from April 2022 to end of August 2022-prior to the sending of Postal Votes ..............................................................................................................................31 Visits to Apartment Buildings by Mr Hou and Mr Hyde ......................................34 WeChat Message to Pick Up Ballots ....................................................................35 Mr Hou’s Communications with 22 Persons not receiving Ballot Papers ...........35 Two Persons handling Voter Packs outside Vision on Morphett - 27 October 2022 ..............................................................................................................................36 Mr Bai and Mr Jin handling Ballot Papers - Stonemill Restaurant - 27 October 2022 ......................................................................................................................37 WeChat Message from Miranda Li.......................................................................40 Study Adelaide Event ............................................................................................41 Conversation between Mr Ma and Mr Weng - 10 November 2022 ......................45 Complaints to the Electoral Commissioner and investigation by the Electoral Commission .........................................................................................................46 Determination of the Allegations in the Petition of Bribery – ss 57(1)(b) and 57(1)(c) of the Elections Act ...............................................................................50 -- 5 of 107 -- [2025] SADC 20 2 Determination of the allegations in the petition of persons acting on behalf of the second respondent as an assistant to a person voting in the election - s 61(1) of the Elections Act .................................................................................55 Evidence about Visiting Apartments .....................................................................56 Evidence about WeChat Message .........................................................................57 Evidence about Photographs in Exhibit P7 taken on 27 October 2022 ...............58 Evidence relating to Mr Bai and Mr Jin at the Stonemill Restaurant on 27 October 2022 ......................................................................................................................59 Findings concerning Contraventions of s 61(1) ...................................................61 Determination of allegations in the petition of a person acting on behalf of the second respondent having in their possession postal voting papers for the election contrary to s 61(4) of the Elections Act...............................................61 25 May 2022 WeChat Message ............................................................................62 Evidence relation to Mr Zhang collecting Unfilled Ballot Papers .......................64 Evidence of the Involvement of Two International Students.................................64 Evidence in relation to Ms Mirandi Li approaching a landlord for a vote ..........64 Evidence relating to Exhibit P7 and Mr Bai and Mr Jin ......................................65 Summary of Findings about Contraventions of s 61(4) ........................................65 Determination of allegations in the petition of a making a misleading or knowingly making a false declaration on voting papers in a material respect or marking a ballot paper to which they were not entitled to mark or dishonestly exercising a vote to which they were not entitled-ss 64(1), s 64(2) and 58(1) of the Elections Act ............................................................................65 Overview of the Allegations in the Petition ..........................................................65 The Experts’ Reports and Evidence ......................................................................67 Evidence as to Signatures .....................................................................................67 Further Circumstantial Evidence Concerning Persons Numbered 1-27 in Appendix A ............................................................................................................68 Further Circumstantial Evidence in relation to Persons Concerning Persons Numbered 28-73 of the Petition ............................................................................70 Evidence in Relation to Handwriting on the Enrolment Forms ...........................72 Determination of Allegations in respect of persons named in Appendix A where there is further circumstantial evidence ...............................................................73 Preliminary matters to be Determined .................................................................73 Pleading about the Date Range of the Alleged Contraventions ...........................74 Does s 72 prevent reliance on alleged falsely completed applications for enrolment ..............................................................................................................................74 -- 6 of 107 -- [2025] SADC 20 3 Is the petitioner entitled to rely on the date of birth evidence and the evidence as to the different dates upon which the applicant for enrolment and the witness signed the application for enrolment. ...................................................................75 Weight to be given of date of birth evidence and witness signature evidence ......76 Is the Court able to determine that the declaration on the voting envelope was false or dishonestly applied? .........................................................................................77 Voters in respect of whom there is circumstantial evidence that the declaration on the voting envelope was false and dishonestly applied.........................................79 Other Circumstantial Facts ..................................................................................89 Circumstantial evidence from communications discovered on the re-opening ....92 Breaches of the Common Law of Elections ......................................................95 Affect of the Illegal Practices on the Result of the Election ............................96 Orders ................................................................................................................102 Conclusion .........................................................................................................103 -- 7 of 107 -- [2025] SADC 20 4 ALEXANDER HYDE v ELECTORAL COMMISSIONER OF SOUTH AUSTRALIA, JING LI (NO 3) [2025] SADC 20 Court of Disputed Returns Introduction 1 In October and November 2022, the City of Adelaide conducted an election under the Local Government (Elections) Act 1999 (SA) (the Elections Act) and schedule 1 of the City of Adelaide Act 1998 (SA) (the City of Adelaide Act). That election included an election for councillors for the Central Ward, which election is the subject matter of this petition. The election was conducted by way of a postal vote. Postal voting packages were sent to electors in the period from about 14 October 2022 to 20 October 2022. Voting closed on 10 November 2022. 2 There were 14 candidates for the election of four councillors for the Central Ward. The candidates included the petitioner, Mr Hyde, and the second respondent, Mr Li. 3 On 18 November 2022, four candidates were returned as elected for the Central Ward including the second respondent. The petitioner was an unsuccessful candidate. The petitioner was the last candidate excluded and, after preferences, received the fifth highest number of votes. At the time of the declaration of the election on 18 November 2022, the margin between the petitioner and the second respondent was 31 votes. By letter dated 5 December 2023, the Electoral Commissioner advised the parties that there had been an error in the distribution of preferences such that the margin between the petitioner and the second respondent was 24 votes rather than 31 votes (taking into account the transfer value of the votes under the counting system). 4 By a petition to the Court of Disputed Returns dated 15 December 2022 (the original petition) but revised on 29 March 2023 and again on 26 June 2023 (the revised petition or the petition), the petitioner alleged that there had been illegal practices that had affected the result of the election and sought relief that included declarations that the elected persons, including the second respondent, were not duly elected and a declaration that the election for the Central Ward was void. 5 The petition was opposed by the Electoral Commissioner and the second respondent. The Election 6 Pursuant to s 5 of the Elections Act, periodic elections of all Councils, including the City of Adelaide, are to be held at 4 year intervals with voting to close at 5:00pm on the second to last business day before the second Saturday of -- 8 of 107 -- [2025] SADC 20 5 November. Voting therefore closed on 10 November 2022 for the 2022 elections. The Electoral Commissioner is the returning officer for council elections.1 7 In the case of the City of Adelaide, in 2022 elections were held for the position of Lord Mayor, two area councillors, four councillors for the Central Ward, three councillors for the South Ward and two councillors for the North Ward. Pursuant to s 37 of the Elections Act, voting is to be conducted on the basis of postal voting. 8 Clause 2 of schedule 1 of the City of Adelaide Act (which is in substantially the same terms as s 14 of the Elections Act) sets out the qualifications to vote at an election. Persons qualified to vote include: (1) natural persons enrolled as an elector on the House of Assembly roll in respect of a place of residence within the council area or ward. No application needs to be made by persons so enrolled; (2) persons who are or above the age of majority who have been a resident within the council area or ward for a continuous period of at least one month immediately preceding the date of the application for enrolment; (3) a ratepayer of a rateable property in the area or ward who is the sole owner of the rateable property; (4) a ratepayer in respect of a rateable property in the area or ward who is the sole occupier of the rateable property and is not a resident of that rateable property; (5) A body corporate, on application to the chief executive officer, if it is the ratepayer of a rateable property in the area or ward and is the sole owner or occupier of that property. 9 Each of the voters in the second to fifth categories are on the supplementary roll. The maintenance of the supplementary roll is the responsibility of the chief executive officer of the City of Adelaide.2 Persons need to apply to the chief executive officer to be included on the supplementary roll, although evidence was given by the Electoral Commissioner that in the case of owner of rateable property, inclusion on the supplementary roll is automictic and no application need be made. 10 The voters’ roll, comprising the House of Assembly roll and the Supplementary Roll, for the council elections closed on 29 July 2022. Relevantly, there were 13,909 electors on the voters roll for the Central Ward. 11 Nominations for candidates seeking to run for the election opened on 23 August 2022 and closed on 6 September 2022. Fourteen candidates nominated 1 Section 10(1) of the Elections Act. 2 Section 15 of the Elections Act. -- 9 of 107 -- [2025] SADC 20 6 for the 4 positions in the Central Ward, including the petitioner and the second respondent. The petitioner had previously been elected in the 2018 elections as a member of the South Ward but in 2022 decided to nominate for the Central Ward. 12 Clause 18 of schedule 1 of the City of Adelaide Act (which is in similar terms to s 39 of the Elections Act) requires voting papers to be posted to every natural person and body corporate on the voters roll. 13 Voting packs were sent to voters in the period between 14 October 2022 and 20 October 2022. Voters, after marking their ballot, were required to place the completed ballot papers in the ballot paper envelope and seal that envelope. Voters were required to sign a declaration that the ballot papers enclosed in the envelope contained their vote and they had not otherwise voted at the election. The ballot paper envelope was then placed in the reply paid envelope, which was addressed to the Returning Officer, City of Adelaide. 14 Exhibits 1R8 and 1R9 provide evidence of the contents of the voting pack and of the voting material that was sent to a voter entitled to vote in the Central Ward election of the City of Adelaide. Exhibit 1R46 contained a description of the colours of the ballot papers. The contents of the ballot pack for the Central Ward election comprised: (1) a blue/green envelope that contained all documents sent by the Council. The same envelope was used in all Council elections save for some small writing in the top left corner of the envelope directing the envelope, if undeliverable, to be returned to the returning officer of the particular council; (2) a green envelope, described as the ballot paper envelope, in which the ballot papers were to be placed, when completed and containing a declaration to be completed by the voter that he or she was the person entitled to vote; (3) a white envelope in which the green envelope is placed; (4) a pink ballot paper for the election of councillors for the Central Ward; (5) a blue ballot paper for the election of area councillors. This colour was also used for ward 6 ballot papers of other councils. Nine councils used this colour for that purpose (Exhibit 1R46); (6) a white ballot paper for the election of lord mayor; (7) a voting guide; (8) a booklet of the profiles of candidates. 15 Voting closed on 10 November 2022 at 5:00pm. Three thousand eight hundred and five ballot paper envelopes were returned for the Central Ward of -- 10 of 107 -- [2025] SADC 20 7 which 3437 were accepted and 368 rejected. Papers were rejected at this stage because the declaration on the envelopes had not been completed correctly. 16 The next stage of scrutiny occurred when the envelopes were opened. Envelopes may be rejected at this stage because there were no ballot papers in the envelopes. Fifty five ballot papers were rejected as part of this scrutiny (which is referred to as the initial scrutiny) which left 3382 votes proceeding to the next stage of counting. 17 During the course of additional scrutiny performed by the Electoral Commissioner in early November 2022, 23 ballots were excluded including 21 on the basis that they had been filled out by someone other than the owner. Further ballot papers were rejected as informal. Counting of votes commenced on 12 November 2022. Ultimately, 3292 ballot papers were accepted and counted. 18 On 13 November 2022, the provisional results for the Central Ward election were announced. On 16 November 2022, the petitioner requested a recount, which request was refused by the Electoral Commissioner and on 17 November 2022, the Electoral Commissioner formally notified the City of Adelaide of the election results. There was a formal declaration of the poll on 18 November 2022 (Exhibit P3). That declaration stated that Carmel Noon, Zhoupeng Hou, David Elliott and Jing Li were elected as councillors for the Central Ward. The Elections Act and the Petition 19 Part 13 of the Elections Act establishes a Court of Disputed Returns which is constituted by a judge of the District Court. Section 67(5) of the Elections Act provides: Subject to this Part, the procedure and powers of the Court are the same as those of the District Court when exercising its civil jurisdiction. 20 The Court of Disputed Returns has jurisdiction pursuant to s 69(1) of the Elections Act to hear and determine any petition addressed to it disputing the validity of an election. Under s 72 of the Elections Act, the Court however cannot call into question the entitlement to vote of an elector whose name appears on the voters roll as an elector. 21 Section 70 sets out certain requirements with which the petition must comply. Section 70 provides: (1) A petition to the Court must: (a) set out the facts relied upon to invalidate the election; and (b) set out the relief which the petitioner seeks; and (c) be signed by a candidate at the election in dispute or by an elector for that election; and -- 11 of 107 -- [2025] SADC 20 8 (d) be lodged with the clerk of the Court within 28 days after the conclusion of the election; and (e) be accompanied by the prescribed amount as security for costs. (2) … (3) If a person or council served under subsection (2) proposes to contest the petition, the person or council must, within 14 days after service, or such further time as may be allowed by the Court (on application made either before or after the expiration of the period of 14 days), lodge with the clerk of the Court and serve on the petitioner, a reply. (4) A reply must: (a) set out the facts on which the applicant [sic] proposed to rely; and (b) ask for any relief to which the applicant [sic] claims to be entitled; (c) be signed…. 22 Section 71 sets out the powers of the Court. It relevantly provides: (1) The Court must sit as an open court and its powers include the following: (a) – (e )… (f) to declare- (i) that a person who was returned as elected was not duly elected; and (ii) that a candidate who was not returned as elected was duly elected; (g) to declare an election void; (h) to dismiss or uphold a petition, in whole or in part; (i) to amend or allow the amendment of a petition or reply; (j) … (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) The Court is not bound by the rules of evidence. (4) The Court must act according to good conscience and the substantial merits of the case without regard to legal technicalities. (5) A decision of the Court is final and without appeal. 23 Section 73(1) provides that a Court cannot declare an election void or that a candidate was not duly elected on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the illegal practice. -- 12 of 107 -- [2025] SADC 20 9 Section 73(2) then states that if an illegal practice under ss 57, 58 or 59 has been found to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities. 24 In the petition, the petitioner alleged that the second respondent, or persons acting on his behalf, committed a series of independent illegal practices under Part 12 of the Elections Act. In addition, the petitioner alleged that 73 persons made a false declaration on either the declaration on their voting envelope or on their application for enrolment. 25 Specifically, the petitioner alleged in the revised petition that: (1) at a dinner held on 27 May 2022, the second respondent offered a bribe to persons with a view to influencing the vote of a person at an election or interfering with the due course of an election (contrary to s 57(1)(b) and s 57(1)(c) of the Elections Act); (2) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent acted as an assistant to a person voting at the election (contrary to s 61(1) of the Elections Act) by taking possession of postal voting papers for the election; (3) between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent took possession or attempted to take possession of postal voting packs contrary to s 61(4) of the Elections Act; (4) between 14 October 2022 and 10 November 2022, at least 73 persons had made a statement in the declaration for the postal voting and/or on the application for enrolment that was, to that person’s knowledge, false or misleading in a material respect or had marked a vote on the ballot paper which had not been issued to them (contrary to ss 64(1) and 64(2) of the Elections Act) and further that those 73 persons had dishonestly exercised a vote at an election to which they were not entitled (contrary to s 58(1) of the Elections Act). 26 The petitioner also alleged in the petition that the individual illegal practices constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election under the common law of elections. The scheme pleaded in relation to the common law of elections relied upon the individual practices (and nothing wider) to constitute the scheme. Apart perhaps from matters related to proof that the result of the election was affected by illegal practices, the alleged scheme does not add anything to the alleged illegal practices that are separately pleaded by the petitioner. 27 In his opening, the petitioner stated that there was a scheme whereby: -- 13 of 107 -- [2025] SADC 20 10 (1) the second respondent offered a bribe at a dinner held on 27 May 2022 at the Ancient Oriental restaurant to the person who gained the most enrolments; (2) there had been mass enrolment of international students who were otherwise entitled to vote but these students were on some occasions enrolled when they had no intention to vote and in other cases enrolled with no knowledge of the fact that they had been enrolled which involved falsification of their signatures on the enrolment form; (3) voting packs were taken from the post boxes or other places of delivery of voters without their knowledge or consent or handed by voters to persons requesting that they hand over their voting pack; (4) at least 57 persons who completed the declaration on ballots did not sign the enrolment form. 28 That opening is broader than the petition and cannot be used as an independent basis to obtain the relief sought. The scheme, having not been pleaded in the petition, does not comply with s 70 of the Elections Act. The scheme, as articulated in the opening, was not pleaded in the 28 day time period after the conclusion of the election and no extension of time was sought to extend that period to plead the scheme. 29 The failure to plead the scheme set out in the opening has little practical difference. The individual acts that are alleged to constitute the scheme, if established, provide an independent basis for the relief sought (subject to a finding under s 73 of the Elections Act that they affected the result of the election and a finding that the entitlement of someone to vote in the election was not being called into question under s 72). 30 Further, the petitioner’s case is, in part, a circumstantial case and he relies upon facts which, if established, support a finding that the Court should find that some other, pleaded act, has taken place. That is, the more probable inference, from a combination of facts, is that some pleaded act occurred. For example, the petitioner submitted that Exhibit P7 was evidence of multiple ballot packs being handled, open ballot packs being handled and ballot packs being passed between agents of the second respondent. The petitioner submitted that other evidence in these proceedings must be considered in light of the evidence comprised in Exhibit P7. The petitioner further submitted that the circumstantial case goes back to the dinner at the Ancient Oriental in May 2022. 31 I accept that the case of the petitioner is circumstantial and that permits an inference to be drawn from a combination of facts if that is the more probable inference from those facts. In Masters Home Improvement Pty Ltd v North East Solution Pty Ltd,3 the Court held: 3 (2017) 372 ALR 440, [101]; [2017] VSCA 88. See also Carr v Baker (1936) SR (NSW) 301, 306-307. -- 14 of 107 -- [2025] SADC 20 11 The principles, relating to the drawing of inferences in civil cases, are well established. First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference. Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force. 32 The petitioner also referred to vote harvesting during the course of the opening. Mr Hou and Mr Hyde also referred to that term during the course of their evidence. In the opening, it was used in the context of referring to the persons who were alleged to have signed the declaration on the voting envelope as not being the persons who signed the application for enrolment. Mr Hou referred to vote harvesting as collecting other people’s ballots without permission. Mr Hou said that he used the term in the context of real estate managers who received the voting papers on behalf of landlords and tenants and did not pass the voting papers on and instead wrongly exercised the vote associated with those papers. There was no evidence supporting that allegation. 33 Mr Hyde referred to vote harvesting as an active operation to go around and collect the votes and did not necessarily agree that the real estate agent reference was vote harvesting. 34 The term “vote harvesting” is simply a label and does not add anything to the allegations contained in the petition. The task of the Court is to determine whether the matters complained of in the petition occurred. The Common Law of Elections 35 The petitioner has pleaded in paragraph 7 of the petition that the separate conduct alleged in paragraph 5 of the petition constituted a coordinated scheme to illegally affect the outcome of the election such that the election was not a free and fair election in breach of the common law of elections and that the election was invalid on that basis. 36 The content of the common law of elections was discussed by McHugh J in Sue v Hill4 who held: There is authority in this and other courts supporting the proposition that at common law an election for a legislature could be set aside if there was no real electing by the constituency or the election was not really conducted in accordance with the laws governing it. Thus, in Woodward v Sarsons (1875) LR 10 CP 733, 743-744] where the Court of Common Pleas had to consider the powers of the election tribunal brought into 4 (1999) 199 CLR 462, [226]-[237]; [1999] HCA 30. -- 15 of 107 -- [2025] SADC 20 12 existence by the Parliamentary Elections Act 1868, Lord Chief Justice Coleridge, speaking on behalf of the Court, said: "[A]n election is to be declared void by the common law applicable to parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it is satisfied, as a matter of fact, either that there was no real electing at all, or that the election was not really conducted under the subsisting election laws. As to the first, the tribunal should be so satisfied, i.e. that there was no real electing by the constituency at all, if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing the candidate which the majority might prefer. This would certainly be so, if a majority of the electors were proved to have been prevented from recording their votes effectively according to their own preference, by general corruption or general intimidation, or by being prevented from voting by want of the machinery necessary for so voting, as, by polling stations being demolished, or not opened, or by other of the means of voting according to law not being supplied or supplied with such errors as to render the voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mishaps. And we think the same result should follow if, by reason of any such or similar mishaps, the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they preferred." (emphasis in original) 37 McHugh J expressed doubt about the application of the common law of elections in light of the relevant commonwealth legislation governing the holding of elections. McHugh J noted the wide powers contained in ss 360(2) and 364 of the Electoral Act 1918 (Cth) (the Commonwealth Electoral Act). Section 360(2) stated that the Court may exercise all or any of its powers on such grounds as the Court in its discretion thinks just and sufficient. Section 364 states that the Court shall be guided by the substantial merits of the case and good conscience without regard to legal technicalities.5 Sections 71(2) and 71(4) of the Elections Act are in virtually identical terms to those provisions in the Commonwealth Electoral Act. McHugh J held that but for the statutory context, the common law of elections would confer independent and additional grounds to those specified in the Commonwealth Electoral Act to declare an election void. However, McHugh J held that the structure of the Commonwealth Electoral Act and its purpose, allowed an election to be set aside on the grounds of bribery, corrupt practices, undue influence and illegal practices and not otherwise.6 In reaching that conclusion, McHugh J held that given the terms of s 362 of the Commonwealth Electoral Act, it was distinctly unlikely that a petition could rely on any ground other than breach of the Act or regulations, or bribery, corruption or undue influence as defined by the Act. Section 362 of the Commonwealth Electoral Act provides: (1) If the Court of Disputed Returns finds that a successful candidate has committed or has attempted to commit bribery or undue influence, the election of the candidate shall be declared void; 5 Ibid, [223]. 6 Ibid, [224]. -- 16 of 107 -- [2025] SADC 20 13 (2) … (3) The Court of Disputed Returns shall not declare that any person returned as elected was not duly elected or declare any election void: (a) on the ground of an illegal practice committed by any person other than the candidate and without the knowledge or authority or the candidate; or (b) on the ground of any illegal practice other than bribery or corruption or attempted bribery or corruption; unless the Court is satisfied that the result of the election was likely to be affected and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. 38 Gaudron J in Hudson v Lee (No 2)7 reached the same conclusion as McHugh J did in Sue v Hill and held that there were three reasons why a petitioner could not rely on any ground other than a breach of the Commonwealth Electoral Act or regulations, or bribery, corruption or undue influence as defined by the Act. They were: (1) Section 362 provides detailed and comprehensive provisions as to the conduct of election; (2) Section 362 allows for elections to be disputed on the ground of illegal practices. The detail of the Act’s provisions and the width of the definition of illegal practice standing alone are powerful indicators of the exhaustive nature of s 362; (3) Section 362 provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding. It would be incongruous if the Court’s powers were entirely at large with respect to matters extraneous to the Act. 39 Each of these three reasons apply to s 73 of the Elections Act. Sections 73(1) and 73(2) of the Elections Act addresses the same concepts as s 362 of the Commonwealth Electoral Act although in slightly different terms. 40 The application of the common law of elections was also discussed by the Full Court in Featherston v Tully (Featherston).8 In that case, Bleby J held that there was scope for the continued application of the common law of elections especially where the SA Electoral Act was silent or clearly not comprehensive.9 41 At the time of the decision in Featherston, ss 107(3) and 107(4) of the SA Electoral Act (being the only sections that dealt with the consequences of an irregular act) were clearly not comprehensive or exhaustive. They provided: 7 (1993) 177 CLR 627, 631. 8 (2002) 83 SASR 302; [2002] SASC 243. 9 Ibid, [122]. -- 17 of 107 -- [2025] SADC 20 14 (3) An election will not be declared void on the ground of- (a) A defect in a roll or certified list of electors; or (b) An irregularity in, or affecting, the conduct of the election unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the defect or irregularity. (4) An election may be declared void on the ground of the defamation of a candidate but only if the Court of Disputed Returns is satisfied, on the balance of probabilities, that the result of the election was affected by the defamation. 42 Bleby J then found that the SA Electoral Act had no counterpart to s 360(2) of the Commonwealth Electoral Act and the structure of that Act and s 363(3) were quite different from the SA Electoral Act and s 107. He therefore concluded that there was nothing in ss 107(3) and 107(4) to displace the inference to be drawn from those subsections that there were other unstated grounds which would justify a Court of Disputed Returns declaring an election void. It follows that those subsections are not exhaustive in stating the practices or grounds upon which a petition may properly be founded.10 43 That reasoning does not apply to the Elections Act which is in similar terms to the Commonwealth Electoral Act and the detailed provisions which set out when an election may be declared void. 44 Bleby J went on to hold that the only grounds upon which an election might be declared invalid under the common law of elections was if there was no real election at all or that the election was not really conducted under the requirements of the relevant Act.11 The first category arises where it can be shown that the electors did not have a free and fair opportunity of electing the candidate which the majority of electors prefer such as where the majority of electors are prevented from recording their vote because of corruption or general intimidation, want of available machinery for voting, by fraudulent counting of votes or false declarations of numbers or other such acts or mishaps.12 The second category arises where there was a departure by electoral officials from the Act that was so great that there was no election under the existing law.13 45 Doyle CJ in Aldridge v Electoral Commissioner of SA & Ors (Aldridge)14 held, following Featherston and the subsequent amendment of s 107 of the SA Electoral Act 1985 to include bribery, undue influence and interference with political liberty, that there was less scope for the common law of elections to operate. However, he held it was not necessary for him to make any decision about that issue. Doyle CJ observed that there may be scope for the common law of 10 Ibid, [104]-[107]. 11 Ibid, [147]. 12 Ibid. 13 Ibid, [148]. 14 [2010] SASC 194, [19]. -- 18 of 107 -- [2025] SADC 20 15 elections to continue to operate in relation to a collection of individual complaints that, taken together, showed that there had been no real election at all, or the election was not really conducted under the requirements of the Electoral Act.15 46 However, even with the amendments, s 107 of the SA Electoral Act is clearly not comprehensive. It makes no reference to illegal practices whereas both the Commonwealth Electoral Act and the Elections Act make express reference. The Elections Act supplants the common law of elections. It would be inconsistent with the Elections Act, for example, if under that Act, the petitioner had to prove that the illegal practices affected the result of the election when there was no such onus under the common law of elections. It follows that the common law of elections does not apply to an election held under the Elections Act. 47 In the circumstances of this case, the petitioner’s plea in paragraph 7 of the petition invokes the first limb of the common law of elections. The petitioner in paragraph 7 relies upon the same breaches of the Elections Act as giving rise to the contravention of the common law of elections. The plea in paragraph 7 of the petition does not add anything to those individual allegations, as, if established, they are breaches of the Elections Act. The only difference may arise if some of the breaches of the Act are established such that in accordance with the statement by Doyle CJ in Aldridge, there has been established a collection of individual complaints that, taken together, showed that there had been no real election at all or the elections was not really conducted under the requirements of the Act.16 48 However, for the reasons that I have stated, I do not consider that the common law of elections applies to an election conducted under the Elections Act, even to the limited extent described above. 49 As to the second limb of the common law of elections, the only plea in the petition that invokes this limb is paragraph 6.c.1.5 of the petition which says that scrutineers on behalf of the second respondent were not invited to or provided with the opportunity to be present when the Commissioner undertook the further investigations. This is a plea that is made only in respect of the allegation that the illegal practices affected the result of the election. It is not a plea of an independent basis for impugning the result of the election. 50 In any event, I do not consider that s 19 of schedule 1 of the City of Adelaide Act (which is relevantly in the same terms as s 47(2) of the Elections Act) requires a scrutineer to be present when the further investigations were conducted by the Commissioner. Section 19 states: (2) For the purposes of the scrutiny of voting papers for each election or poll, the returning officer will, with the assistance of any other electoral officers who may be present, and in the presence of any scrutineers who may be present— 15 Ibid. 16 Ibid. -- 19 of 107 -- [2025] SADC 20 16 (a) examine the declarations on all envelopes used for voting (and validly returned) and determine which votes are to be accepted for further scrutiny and which rejected from further scrutiny, rejecting unopened— (i) any envelope that forms part of a set of voting papers that have been cancelled under this Schedule; (ii) any two or more envelopes where it appears to the returning officer that the voter has acted in more than one capacity at the particular election or poll; (iii) any envelope where the voter's name does not appear on the voters roll, unless the voter is voting on behalf of a body corporate or group of persons in accordance with this Schedule, or unless the voter's name has been omitted from the roll in error; (iv) any envelope where the voter is purporting to be voting on behalf of a body corporate or group of persons, but the returning officer concludes that the voter is in fact attempting to exercise an unauthorised vote; (v) any envelope where the signature does not, to the satisfaction of the returning officer, correspond with the signature on the application (if any) of the voter for the relevant voting papers; (b) tear off the extensions to the envelope flaps on the envelopes accepted under paragraph (c) rearrange the envelopes that no longer bear their tear-off extensions so that the anonymity of voters is maintained; (d) remove the ballot papers from those envelopes; (e) if an envelope contains more than one ballot paper and a scrutineer challenges the number of ballot papers contained in the envelope—satisfy himself or herself that the envelope does not contain more ballot papers than the number to which the voter is entitled and, if the returning officer is not so satisfied, return all of those ballot papers to the envelope and reject them from the count; (f) examine the remaining ballot papers and reject any informal ballot papers; (g) arrange all unrejected ballot papers into appropriate parcels for counting. 51 Section 19(2) is directed at the initial scrutiny and assumes scrutineers may be present at the initial scrutiny. Section 19 makes no such assumption and imposes no such requirement in relation to further scrutiny or investigations undertaken by the Commissioner. It follows that there is no basis for submitting that the election was not conducted in accordance with the Elections Act or the City of Adelaide Act. Section 19(2) and ss 47 and 48 of the Elections Act allow scrutineers to be present at the preliminary scrutiny and at the counting of the votes but do not require them to be present at every stage of the process. In any event, the petitioner had been provided with the candidates handbook (Exhibit 1R61) and had thereby been notified of his ability to have scrutineers at relevant times. -- 20 of 107 -- [2025] SADC 20 17 Procedure and Evidentiary Framework Application of the Briginshaw Standard 52 All parties accepted that the Briginshaw standard applied.17 The illegal practices complained of by the petitioner are serious offences that provide for a term of imprisonment, if proven in criminal proceedings. All of the contraventions pleaded by the petitioner involve criminal acts. The comments made by Dixon J (as he then was) apply:18 But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. 53 Rich J made similar comments when he held:19 In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. 54 The Court of Appeal in SJ Berry Pty Ltd & Anor v McEntee & Anor,20 held that the Briginshaw standard was concerned with the quality of proof required when a serious matter is to be found. It acknowledges that the degree of satisfaction may vary according to the gravity of the fact to be proved. Hearsay Evidence 55 The Court under s 71(3) is not bound by the rules of evidence. Section 71(4) provides that the Court must act in good conscience and the substantial merits of the case without regard to legal technicalities. 56 In the context of the SA Electoral Act, in Featherston v Tully,21 Bleby J (with whom Mullighan J) agreed said: The Court is obliged to act judicially, to apply the requirements of the Act and the common law and to afford all parties and legitimate interveners the principles of natural justice. However, the common law criteria which I consider are applicable, as well as the requirements of s107(3) and s107(4), require a judgment to be made about whether there has been an election at all, whether the statutory electoral procedures have been so abused 17 Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). 18 Ibid 362-3. 19 Ibid 350. 20 [2022] SASCA 133, [61]. 21 (2002) 83 SASR 302, [156]; [2002] SASC 243. -- 21 of 107 -- [2025] SADC 20 18 that there has been no election and whether, in the circumstances stated in s107(3) and s107(4) the result of the election was affected by the relevant defect or irregularity. Without the provisions of s106, some might take the view that the only way of reaching a conclusion on those requirements is to hear evidence from every relevant elector as to their inability to vote, how they would have voted, how they in fact voted or, if the relevant circumstances had been different, how they would have voted. It might be said that at least a sufficient number of such people would have to give evidence in order to reach such a conclusion Section 106 avoids the need for any such requirement. It means, in the context of this Act, that the Court must exercise its judgment according to its good conscience and according to what it considers to be the substantial merits of the case as to whether the respective common law or statutory criteria have been met. It permits resort to a common sense judgment in all the circumstances. However, the Court's judgment cannot be merely arbitrary. It must still apply the common law principles. In the case of s107(3) and s107(4) it must apply the well known standard of being satisfied on the balance of probabilities that the result of the election was affected by the defect, irregularity or defamation as the case may be. 57 It is through the prism of such statements of principle, that the Court must consider what weight should be given to various hearsay statements that are relied upon by the petitioner. The Full Federal Court in Minister for Immigration and Ethnic Affairs v Pochi (Pochi),22 considered the use of hearsay evidence in a hearing before an administrative tribunal which was not bound by the rules of evidence. At first instance, Brennan J (in his then capacity as President of the Administrative Appeal Tribunal),23 discussed what evidence the Tribunal should base its decision upon.24 Brennan J quoted from the decision in R v War Pensions Entitlement Appeal Tribunal: ex parte Bott25 to the effect that the rules of evidence were designed to produce a body of proof which had rational probative force. Therefore, although the rules of evidence did not apply, they could not be ignored as being of no account. The Tribunal must not act in a way that necessarily disadvantages one party and advantages the other. In other words, although the rules of evidence do not bind, “every attempt must be made to administer substantial justice.” Brennan J held that the statements in Bott’s case showed that the Tribunal was entitled to have regard to evidence which was logically probative whether it was legally admissible or not. Brennan J concluded:26 … hearsay has a wide scale of reliability and there is no reason why logically probative hearsay should not be given credence. However, the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations. 58 Ultimately, Brennan J held that the hearsay evidence given in camera in that case lacked the cogency which would support a finding of fact, in part because the evidence was hearsay and hearsay inevitably lacks the cogency of evidence given 22 (1980) 44 FLR 41. 23 Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482. 24 Ibid, 492-493. 25 (1933) 50 CLR 228. 26 (1979) 36 FLR 482, 493. -- 22 of 107 -- [2025] SADC 20 19 by someone who has personal knowledge of the facts to which they have deposed.27 On appeal, Deane J (with whom Evatt J agreed and Smithers J agreed on this point) held:28 There is no general principle of law binding the Tribunal either to the effect that the probative force of information heard in confidential session from which the applicant for review is excluded must be particularly cogent if that information is to be acted upon or to the effect that hearsay evidence inevitably lacks the cogency inherent in evidence given by a person who has personal knowledge of the facts to which he deposes. The first of these statements had much to recommend it on the grounds of ordinary fairness and decency. The second has much to recommend it on the grounds of common sense. Neither statement amounts, however, to an overriding principle of law binding, in all circumstances on the Tribunal in the sense that departure from it would necessarily involve error of law on the Tribunal’s part. 59 Deane J further held that the Tribunal was bound, as matter of law, to act on the basis that the conduct alleged should be established on the basis of rationally probative evidence. 60 The parties agreed that the weight given to any hearsay evidence and whether it was sufficient to persuade the Court that it should make a particular finding, must be determined separately in relation to each hearsay statement which the petitioner has sought to use. The admissibility and weight given to the hearsay evidence will depend on the nature and cogency of the hearsay evidence and whether it is rationally probative evidence, the disadvantage that a party might suffer by the use of that evidence, the seriousness of the allegation in respect of which it is used and how the allegations may otherwise be proved. Questions of fairness to the parties, whether the admission of the evidence necessarily disadvantages one party and the probative value of the evidence are critical considerations when considering the admissibility and weight to be given to hearsay evidence where the Tribunal, such as the Court in this case, is not bound by the rules of evidence. That accords with the approach taken in Pochi and also the statements made by Bleby J in Featherston v Tully. 61 I do not accept the submission of the petitioner that all of the hearsay is admissible and that it is just a question of weight to be given to the hearsay evidence. Some hearsay may lack the cogency or reliability that is required to justify its admission. This is not a case where all of the hearsay evidence is admissible. The Trial Delay in the Hearing of the Petition 62 As Doyle CJ observed in Aldridge29 in relation to the SA Electoral Act, the right to challenge an election is an important individual right and there is a public 27 Ibid, 512. 28 Ibid, (1980) 44 FLR 41, 60-61. 29 [2010] SASC 194 at [50]-[51]. -- 23 of 107 -- [2025] SADC 20 20 interest in a proper challenge to the result of an election being dealt with on its merits. In the matter of Hyde (which was a decision made under the Surveillance Devices Act 2016 regarding authorising the use of audio recordings), Kimber J observed:30 I am satisfied the proper conduct of an election, including that proper processes are followed with respect to both how persons register to vote and how ballot papers are completed, is a matter in the public interest. As Griffith CJ observed in Bridge v Bowen, ‘the proper choice of representatives at an election is a matter of public interest’. 63 It is in the public interest that petitions of this type be heard as expeditiously as possible. 64 Unfortunately, that was not possible in this case for a number of reasons: (1) First, the petitioner needed to obtain detailed discovery from the Electoral Commissioner of applications for enrolment and declarations on envelopes on postal voting papers so that an analysis, and comparison, could be undertaken of the signatures and handwriting on the applications for enrolment and the declarations on the envelopes; (2) Secondly, after the handwriting expert retained by the petitioner, Mr McGinn, had undertaken that analysis and prepared two reports, he suffered a serious illness such that he was not able to give evidence. The petitioner therefore needed to retain a further handwriting expert, Mr Hobden, who subsequently prepared a report and gave evidence at trial; (3) Thirdly, the Electoral Commissioner obtained a report from a Ms Holt, responding to the reports of Mr McGinn and Mr Hobden; (4) Fourthly, there became an issue whether the petitioner was entitled to rely on matters that were contained in the revised petition but not in the original petition. The original petition was lodged on 16 December 2022, within the 28 day period after the conclusion of the election as required under s 70(1) of the Elections Act. The revised petition, which included some further allegations, was lodged on 30 March 2023, and was further revised on 26 June 2023, both outside of the 28 day period. The issue was whether the petitioner was entitled to rely upon these new allegations. During the course of the trial, the parties asked the Court to determine, as a preliminary point, whether the petitioner was able to rely upon the further matters contained in the revised petition. After hearing evidence from the petitioner on this preliminary point and submissions from the parties, the Court delivered a judgment in which it held that s 48 of the Limitation of Actions Act 1936 (SA) applied and 30 [2023] SASC 146 at [55]. -- 24 of 107 -- [2025] SADC 20 21 that in the circumstances, the petitioner was entitled to an extension of time to 26 June 2023 to bring the revised petition;31 (5) Fifthly, after the completion of the trial and with judgment reserved, but prior to judgment being delivered, the petitioner brought an application that he be granted leave to re-open the petition. The application to re- open was brought about by the petitioner ascertaining, through a freedom of information request, that the second respondent had forwarded over 500 applications for enrolment to the City of Adelaide; (6) Sixthly, following a contested argument, the Court found, on 17 April 2024, that the second respondent had failed to make discovery of communications that he had with the City of Adelaide in relation to the enrolment of voters and ordered that the second respondent make discovery of those documents; (7) Seventhly, the second respondent made discovery of those documents and other documents. After obtaining copies of those documents, the petitioner issued six subpoenas to persons he described as associates of the second respondent and one subpoena to the City of Adelaide. The Electoral Commissioner made some limited further discovery. Many of the documents discovered by the second respondent and produced on subpoena by the associates of the second respondent, were in Chinese; (8) Eighthly, after obtaining translations of many documents from Chinese into English, the petitioner sought to re-open the petition and tender the further documents discovered by the respondents, the documents returned on the subpoenas and some miscellaneous documents. That application was opposed by the respondents; (9) Ninthly, on 13 September 2024, the Court ordered that the petitioner be granted leave to re-open his case and tender some, but not all, of the further documents. Ultimately, some 1954 pages of further documents were tendered. There arose a dispute about the translation of some of the documents and the petitioner and the second respondent each called a translator to give evidence about a few documents which were the subject of disputed translations. Both of the translators were subject to cross examination; (10) Tenthly, the parties made further closing submissions on the new material that had been tendered on the re-opening and the Court reserved its decision on 28 October 2024; (11) Eleventhly, the Court required further submissions on a particular issue which were made on 14 February 2025. 31 Hyde v Electoral Commissioner of South Australia and Anor [2023] SADC 143. -- 25 of 107 -- [2025] SADC 20 22 The Witnesses 65 At trial, the petitioner called five lay witnesses and one expert witness (excluding the interpreter to whom I have just referred). 66 Mr Zhoupeng Hou, known as Mr Simon Hou (Mr Hou), operated a real estate agency, DG Real Estate, and was a successful candidate in the election for the Central Ward. He had previously been a member elected to Council in the 2018 election as a councillor for the Central Ward. At the 2018 election, the petitioner was elected as a councillor for the South Ward and therefore Mr Hou knew Mr Hyde. 67 Mr Hou gave evidence about some of his experiences relating to the elections and the 2022 election. More critically, he gave evidence about his observations on 27 October 2022 of 2 persons handling a number of ballot packs outside the Vision on Morphett apartment building. Three photographs were taken by Mr Hou’s wife of this encounter (Exhibit P7). Mr Hou also gave evidence about his subsequent observations on the same day of a Mr William Bai and Mr Yingzhuo (Keith) Jin at a nearby restaurant. Mr Hou said that he saw that Mr Jin had a number of ballot packs in his hand. Mr Hou also gave evidence about a conversation that he had with Mr Bai about this matter not long after he made these observations. This conversation was recorded. The recording supports the observations made by Mr Hou of Mr Jin and Mr Bai. 68 The petitioner submitted that at least to some extent it was against the interests of Mr Hou to support the petitioner as he was also a successful candidate at the election for Central Ward and would therefore face a further election if the petition was upheld and a new election conducted. That said, Mr Hou knew, and had been a colleague of, Mr Hyde in the previous council and their interests often aligned. I do not accept that it was against his interests to give evidence. 69 Senior counsel for the Electoral Commissioner did not suggest that Mr Hou was dishonest but submitted that there were some attitudinal problems with his evidence and that he was prone to editorialising. Counsel for the second respondent submitted that there were real questions as to the credibility and reliability of Mr Hou. 70 Mr Hou was argumentative at times, particularly during cross-examination and frequently expressed frustration. I am conscious of cultural differences and that English was not his first language. I consider that Mr Hou was an honest witness and that his most crucial evidence, that concerning the photographs (Exhibit P7) and his observations of Mr Jin and Mr Bai and his subsequent conversation with Mr Bai were supported by objective evidence. I accept that Mr Hou was honest and reliable when giving evidence about matters that he observed. Mr Hou was on occasions, prone to jump to conclusions about the reasons underlying observations that he made. These were matters of speculation and I do not place weight upon them. I accept also that Mr Hou was also defensive in relation to his motivations or views that he may have held at certain times. -- 26 of 107 -- [2025] SADC 20 23 Again, I do not place reliance on these matters as they do not assist in determining the matters alleged in the petition. 71 Mr Oscar Zi Shao Ong is a PhD student at the University of Adelaide in mechanical engineering. He has been active in student politics and in international student affairs since his arrival in Australia in 2016. He has been president of the Adelaide University Union, national president for the council for international students, Australia and until March 2024, a member of Adelaide University Council. He gave evidence about a dinner at the Ancient Oriental Restaurant in which he said that the second respondent offered a bribe to him and other student leaders in relation to the election. He also gave evidence about some other meetings he attended and in particular a post AGM meeting where he observed a Mr Robert Zhu having a large number of enrolment forms and a Study Adelaide event where he had a discussion with a Mr Trinity Zhang about certain conduct that Mr Zhang said that he had undertaken during the course of the election. 72 Mr Ong was an intelligent witness who answered questions carefully and would make appropriate qualifications or concessions. I accept him as a witness who was honest and was trying to assist the Court. I consider that Mr Ong downplayed his relationship with Mr Hyde and his involvement in the election. The petitioner submitted that such a conclusion should not be drawn and that Mr Ong had freely admitted in cross-examination that he had a long working relationship with the petitioner as the student representative council general secretary, working on international student issues. Mr Ong did not admit to frequent communications with the petitioner. The evidence from Mr Ong’s mobile phone indicated more frequent communications. Mr Ong’s evidence was that his involvement with the petitioner was mainly of a work nature when the communications indicated that it was a wider relationship that dealt with political matters. 73 Text messages of Mr Ong also indicated that Mr Hyde reviewed a draft statement of Mr Ong on 6 December 2022. That again demonstrates the close relationship between Mr Ong and Mr Hyde. I do not accept that it demonstrates any collusion between them or that Mr Hyde asserted improper influence on Mr Ong in relation to the contents of his evidence. The evidence given by Mr Ong related to matters of which Mr Hyde had no involvement. 74 Mr Ong was not a volunteer who assisted Mr Hyde in his campaigning. However, he provided Mr Hyde with information about the integrity of the election and about complaints that had been made about the election. Mr Ong was communicating with Mr Hyde about the exclusion of ballots from the count as a result of the investigation by the Electoral Commissioner. Mr Ong knew that Mr Hyde was a member of the Australian Liberal Party. Mr Hyde currently works at the divisional headquarters of the Liberal Party and has been involved in Liberal Party politics for some time. Mr Ong was a member of the Young Liberals. Mr Ong came to learn that Mr Hyde was challenging the validity of the election and discussed with him the need for Mr Ong to give evidence. -- 27 of 107 -- [2025] SADC 20 24 75 However, contrary to the submission of the second respondent, the relationship between Mr Ong and the petitioner, does not cause me to doubt his credibility or find that his evidence was generally unsatisfactory. I do not consider that because of his relationship with the petitioner, the Court should find that Mr Ong was not a credible witness and that he told deliberate falsehoods. I also do not consider that the reliability of his evidence is diminished because of his relationship with the petitioner. The evidence given by Mr Ong, including in particular concerning his conversation with Mr Trinity Zhang at the Study Adelaide event, was clear and did not involve any element of reconstruction on the part of Mr Ong. 76 Mr Shengbao Ma (known as Colin Ma), a journalist with Voice of America, gave evidence about a meeting that he had with a Mr Vincent Weng and the second respondent on 13 May 2022. He said at that meeting the second respondent asked him to help Chinese people enrol on the Council’s supplementary election roll. Mr Ma also gave evidence about a further conversation that he had with Mr Weng on 10 November 2022. The second respondent was not present at that meeting. The meeting was recorded by Mr Ma. Apart from matters of interpretation, there is no dispute therefore about the contents of that meeting. 77 Mr Tian Par Lim, a property investor, gave evidence about WeChat communications that he had with a Ms Miranda Li (no relation to the second respondent). The communications largely speak for themselves and there was little controversy regarding his evidence. I accept Mr Lim as an honest witness. 78 Mr Hyde himself gave evidence. He was an honest witness who was careful in answering questions in cross-examination. Mr Hyde gave some evidence about the election process. He gave evidence about two substantial matters: first, his observations about voting packs when visiting apartment blocks during the course of the election; and secondly, the complaints he made to the Electoral Commissioner. Other than those matters, Mr Hyde was the person to whom others provided information which he relayed to the Electoral Commissioner. 79 The petitioner called Mr Hobden as a handwriting expert to give an opinion on the signatures and handwriting on enrolment forms and declarations on ballot papers. He was a well-qualified expert and I accept his opinions. His opinions, in the main, accorded with the opinions of Ms Holt, the handwriting expert engaged by the first respondent. 80 Ms Holt did not examine the individual signatures on the application forms and declarations on the ballot papers. Her report dealt with methodology associated with handwriting, the limitations of any comparisons that might be made and the nature of the opinions that might be expressed. Ms Holt was a well-qualified expert whose opinions I also largely accept. I set out in my reasons where I prefer the opinion of one expert over the other on a particular issue. -- 28 of 107 -- [2025] SADC 20 25 81 The Electoral Commissioner, Mr Michael Sherry, gave evidence. Mr Sherry gave evidence about the election process, the voting in this election and the complaints his office received about this election and how they were investigated by his office. I accept the evidence of Mr Sherry. The petitioner criticised the investigation conducted by the Electoral Commissioner as inadequate. I do not accept that criticism. In my view, the investigation by the Commissioner was adequate and appropriate. In any event, the adequacy of the investigation by the Electoral Commissioner was not the relevant issue in this petition: irrespective of what the Electoral Commissioner may have found, the relevant issue is whether the Court finds on the balance of probabilities that there have been illegal practices committed during the election and if so, whether those illegal practices affected the result of the election. 82 On the re-opening, the petitioner called an interpreter, Weizhong Chen, who had translated the further documents that had been discovered by the second respondent or produced on subpoena. The second respondent also called an interpreter, Mengchang Shi, to give evidence about a few of those documents where there was a dispute about the translation or the nuance of the translation. Both interpreters were well qualified and impressive witnesses. I will discuss the particular documents where there is a dispute between them as to the correct translation later in these reasons, insofar as it is relevant. 83 The second respondent did not give evidence, nor did he call any other witness except for the interpreter. Jones v Dunkel 84 I consider that the rule in Jones v Dunkel32 has application. That rule states that an adverse inference may be drawn from the failure of a party to adduce particular evidence, where such evidence would reasonably have been expected. In Jones v Dunkel, Menzies J stated at p 312: In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. Kitto J stated at p 308: It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. 32 (1959) 101 CLR 298; [1959] HCA 8. -- 29 of 107 -- [2025] SADC 20 26 85 Davies A-JA (dissenting on the facts) in Ho v Powell33 explained the principle as follows: The rule permits evidence to be given greater weight and an inference or inferences to be more readily drawn when the other party who might have called evidence to the contrary has chosen not to do so. In Commonwealth Australia v McLean (Court of Appeal, 31 December 1996, unreported), Handley JA and Beazley JA said: '... the rule typically applies to strengthen or weaken an inference otherwise available on the evidence for the benefit of the party not in default. 86 Austin J in Australian Securities & Investments Commission v Rich34 indicated that there are three conditions for the application of the principle: 1. the missing witness would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence); 2. his evidence would elucidate a particular matter, which is a live matter at the trial; and 3. his absence is unexplained. 87 The onus of establishing the unavailability of a witness, for the purposes of the principle in Jones v Dunkel, rests on the party against whom the principle would operate.35 88 The principles in Jones v Dunkel were summarised in Kuhl v Zurich Financial Services Australia Ltd (Kuhl):36 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. [citations omitted] 89 As senior counsel for the petitioner submitted, the second respondent cannot contend that he had a good reason not give evidence because his answers might incriminate himself. In Accident Insurance Mutual Holdings Ltd v McFadden,37 Kirby P (as he then was) held that the proper procedure in a claim for privilege is to object to each question as it is asked and that it is not proper to refuse to be sworn in or to decline to answer any question at all or to claim a global protection by reason of the privilege. It is for the judge to determine whether the objection to answer a question is good on the ground that the answer would tend to incriminate the witness. Deane J in Refrigerated Express Lines (Australasia) Pty Ltd v 33 (2001) 51 NSWLR 572 [76]; [2001] NSWCA 168. 34 (2009) 75 ACSR 1 [449]; [2009] NSWCA 1229. 35 Australian Securities & Investments Commission v Rich (2009) 75 ACSR 1 [457], see also Cross on Evidence, at [1215] and the majority judgment in Smith v Samuels (1976) 12 SASR 573. 36 (2011) 243 CLR 361; [2011] HCA 11 [63]. 37 [1993] 31 NSWLR 412, 423. -- 30 of 107 -- [2025] SADC 20 27 Australian Meat and Live-Stock Corporation38 stated the principle in similar terms (in relation to the obligation to provide discovery and answer interrogatories), although emphasising that this should not be seen as a rule of law. However, the circumstances must be exceptional to warrant an excuse in limine from the obligation to object to particular questions on the grounds of self-incrimination. 90 The second respondent did not attempt to comply with the principles to which reference has been made. The second respondent did not go into the witness box and therefore did not even make a global objection to questions. In these circumstances, I do not consider that the failure of the second respondent can be excused on the grounds that his answers may incriminate him. It is not for the second respondent to arrogate for himself the role of the court in making such a determination. 91 The second respondent further submitted that the inference should not be drawn because the petitioner’s allegations involved criminal conduct on the part of the second respondent and others. For the proposition that the Jones v Dunkel inference has little work (if any) to do in the case of a criminal prosecution, the second respondent relied upon the decisions in Azzopardi v R39 and Dyers v R.40 That principle is not controversial. These proceedings however were not criminal proceedings. The second respondent also relied upon the decision of White J in Australian Securities and Investments Commission v Sigalla (No 4) (Sigalla)41 as support for the principle that there was doubt whether the Jones v Dunkel inference could be drawn where the allegations involved criminal conduct on the part of the second respondent and others alleged to have been his accomplices. Sigalla was a case of contempt which White J found to be criminal proceedings under the relevant NSW Act and rules. Although White J said that even if they were civil proceedings (contrary to his finding that they were criminal proceedings), the proceedings were essentially criminal in nature such that the safeguards of criminal procedure should apply. 92 However, the relevant proceeding in that case was a proceeding for contempt and that is a different type of case from the petition in the present case. If he wished to claim the privilege, the second respondent could have gone into the witness box and made such a claim. The Court would then have adjudicated on that claim. Some of the matters in the petition do not necessarily involve the petitioner and concern those acting on his behalf (with or without his authority). The matters pleaded in paragraph 5.e to 5.g of the petition that 73 identified voters made false declarations do not, on their face, refer to conduct of the second respondent. 93 In all of these circumstances, I do not accept the submission of the second respondent that there is no room for the application of a Jones v Dunkel inference 38 (1979) 42 FLR 204, 210-211. 39 (2001) 205 CLR 50. 40 (2002) 210 CLR 285. 41 (2011) 80 NSWLR 113, [87]. -- 31 of 107 -- [2025] SADC 20 28 in this case. The rule in Jones v Dunkel also applies to the failure of the second respondent to give evidence. 94 That does not mean that the application of the inference can be used to overcome a deficiency in the evidence or convert conjecture and suspicion into evidence (see Jones v Dunkel (above) and also Adler v Australian Securities and Investments Commission: Williams v Australian Securities and Investments Commission).42 95 The petitioner also submitted that the Jones v Dunkel inference was relevant to the second respondent’s failure to put in context some of the messages that were produced on the re-opening application where those messages, on their face, constituted statements of illegal conduct or were matters that would support findings of illegal conduct. I do not consider that this is a matter for the application of the rule in Jones v Dunkel. The Jones v Dunkel inference cannot be used as a substitute for a deficiency in the evidence. The task of the Court is to construe the documents and determine the meaning of those documents. The Court is not able to speculate on what other messages, not produced, may have said. I also do not consider that the Jones v Dunkel inference is relevant to the submission by the petitioner that the messages are incomplete. Again, the documents themselves may suggest that such an inference can be made. If they do not, then the Jones v Dunkel inference cannot be used to somehow elevate that insufficient proof. 96 Further, I do not accept that the rule in Jones v Dunkel has any application in determining whether the second respondent should be found to have not made proper discovery. I found in the course of the re-opening application, that the second respondent had failed to discover all records and communications between the second respondent and the City of Adelaide relating to enrolment forms and all records and communications, including electronic WeChat messages, relating to the application forms. The second respondent discovered those documents following an order of the Court that was made on 24 April 2024. The second respondent was not cross-examined on the affidavit that he swore in relation to the provision of that further discovery. In those circumstances, I do not consider that the second respondent could reasonably have been expected to give evidence about further discovery such that the rule in Jones v Dunkel was engaged. 97 The petitioner submitted that an inference that the second respondent deliberately withheld information (by not providing full disclosure) permitted a stronger inference to be made (or an implied admission) that the information was withheld because the second respondent was conscious that success in the litigation would have been rendered less likely if the material were revealed.43 Thus in Kuhl, Heydon, Crennan and Bell JJ held: 42 (2003) 179 FLR 1; [2003] NSWCA 131, [649]. 43 Kuhl v Zurich Financial Services Australia Ltd and Another (2011) 243 CLR 361, [64]; [2011] HCA 11. -- 32 of 107 -- [2025] SADC 20 29 Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth. There is a reason why failure to call a witness or failure to ask a particular question of a witness supports the possible inference that the witness's evidence would not have assisted the party, while failure of a party-witness to tell the whole truth may support an inference that the party suppressed evidence which would have been damaging to the party-witness. A litigant has no duty to call particular witnesses or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked. 98 In the present case, the only finding against the second respondent was that he failed to discover the documents that were ordered to be discovered on 17 April 2024. Those documents were subsequently discovered by the second respondent. In those circumstances, there cannot be an inference that the documents would have been damaging to the second respondent’s case as the documents were ultimately before the court and the court is therefore able to make findings as to their evidential value in the normal way. 99 I consider that the rule in Jones v Dunkel also applies to the failure of the second respondent to call Mr Keith Jin to give evidence. The evidence establishes that Mr Jin was acting on behalf of the second respondent during the course of the election campaign and therefore could be properly described as being in his camp. In Exhibit P5, in WeChat messages, Mr Jin said to Mr Hou that he was on the team of the second respondent. WeChat messages between Mr Jin and the second respondent in the period between 29 April 2022 and 29 July 2022 demonstrate the involvement of Mr Jin in assisting voters to enrol. WeChat messages between Mr Jin and the second respondent, particularly from about September 2022 to November 2022, demonstrate the involvement of Mr Jin in the campaign of the second respondent. Mr Jin was seen by Mr Hou receiving ballot papers from Mr Bai on 27 October 2022 in the Stonemill Restaurant. There was no evidence providing an explanation as to why Mr Jin did not give evidence. Mr Jin could clearly give evidence on issues raised in the petition including his meeting with Mr Bai and the handling of the ballot papers. 100 The petitioner further submitted that the Jones v Dunkel inference was also available against a number of other persons who were not called by the second respondent and who did not give evidence. These were James Wu, Robert Zhu, Trinity Zhang, William Bai, Alex Ding and Vincent Weng. 101 In the case of Mr Trinity Zhang, I am satisfied that he was able to give evidence which would have elucidated live issues at trial. That issue was whether he was acting on behalf of the second respondent and collected unfilled voter packs from student apartments. His evidence was also relevant to the issue of the identity -- 33 of 107 -- [2025] SADC 20 30 of the two persons in Exhibit P7 and whether they acted on behalf of the second respondent. Mr Ong gave evidence about what Mr Zhang said to him about those issues. I have determined, as appears later in these reasons, that this evidence is admissible, cogent and logically probative of the matters alleged in the petition. The failure to call Mr Zhang is unexplained. He was clearly in the camp of the second respondent as he assisted the second respondent both in procuring applications for enrolment and in the course of the election. Mr Zhang would also have been able to give evidence about whether he was acting on behalf of the second respondent. In those circumstances, the Jones v Dunkel inference is available in respect of the second respondent’s failure to call Mr Zhang. The second respondent has not established that Mr Zhang was unavailable to give evidence. 102 I also find that the Jones v Dunkel inference is available in relation to the failure of the second respondent to call Mr Bai. Mr Bai was able to give evidence about his possession of the ballot packs and handing them to Mr Jin on 27 October 2022 as pleaded in the petition. Mr Bai was also in the camp of the second respondent as the evidence establishes that he assisted the second respondent in obtaining applications for enrolment. The evidence in relation to his interaction with Mr Jin supports the inference that this assistance continued during the election period. The failure to call Mr Bai was not explained. 103 I do not consider that the Jones v Dunkel inference is available in relation to the failure of the second respondent to call Mr Alex Ding. There was no evidence of the involvement of Mr Ding in any of the issues that require determination by this Court. Mr Hou was asked whether Mr Ding was the person in the blue jumper in Exhibit P7 but Mr Hou said that he didn’t know Mr Ding. The question of course is not evidence. 104 I also do not consider that the Jones v Dunkel inference is available in relation to the failure of the second respondent to call Vincent Weng. It has not been established that Mr Weng could have given relevant evidence such that it would be expected that they would be called. 105 I will deal with the inference is available in respect of the failure to call Robert Zhu and James Wu when I consider the evidence that they might have given. Background Facts 106 Before proceeding to make findings about the individual acts that form the subject matter of the petition, it is first necessary to make some findings about other acts that occurred during the course of the election and the campaign so that the disputed acts can be considered in context, including consideration of the inferences that might be drawn from the findings of fact. 107 The Court makes the findings of fact that are set out below, which are largely not in dispute. -- 34 of 107 -- [2025] SADC 20 31 Period from April 2022 to end of August 2022-prior to the sending of Postal Votes 108 By no later than April 2022, the second respondent had made known that he was intending to be a candidate for the Central Ward.44 109 Mr Yingzhou Jin (known as Keith Jin) was working on the campaign team of the second respondent as he confirmed in a WeChat message to Mr Hou on 1 June 2022 (Exhibit P5). The email communications between Mr Jin and the second respondent that were discovered by the second respondent on the re- opening and the subpoenaed documents from Mr Jin in which communications between him and the second respondent were produced, establish that from about May 2022 and throughout the period of the election and until the closing of polls on 10 November 2022, Mr Jin was assisting the second respondent during the course of the election. The second respondent submitted that the evidence that Mr Jin was on the campaign team of the second respondent came from Mr Hou and that Mr Hou was not in a position to know the details of Mr Jin’s involvement. That is not correct. The WeChat message in Exhibit P5 and the communications which I referred to above (which were produced on the re-opening) provide independent evidence that Mr Jin was assisting the second respondent throughout the election period. 110 On 13 May 2022, the second respondent had a meeting with Mr Shengbao Ma and Mr Chenkang Weng, also known as Vincent Weng. Mr Ma recorded that conversation but Kimber J ruled in the Supreme Court that the recording was made in contravention of the Surveillance Devices Act and therefore was inadmissible. The second respondent objected to Mr Ma giving evidence of that conversation. The evidence was admitted de bene esse. In Southern Equities Corporation Ltd (in liq) v Bond and others (No 2) (Southern Equities),45 Lander J considered the admissibility of illegally obtained evidence in civil proceedings and found that the Bunning v Cross discretion is available in civil proceedings so as to protect the administration of justice.46 Lander J found that other discretions that might be available in criminal proceedings, such as the discretion to refuse to admit evidence which was more prejudicial than probative, unfairness to the accused, or that the admission of the evidence would deny the accused a fair trial, did not apply to civil proceedings.47 Lander J held:48 Not all evidence improperly or illegally obtained will be rejected. Improperly or illegally obtained evidence is not by itself inadmissible; Cleland v R [1982] HCA 67; (1982) 151 CLR 1. If evidence has been obtained in that way and is sought to be tendered in civil proceedings the Court has a discretion, which will be exercised having regard to the underlying policies which call for the discretion's existence, the circumstances in which the 44 Hou XN 163.17. 45 (2001) 78 SASR 554; [2001] SASC 70. 46 Ibid, [109]. 47 Ibid, [71] and [81]. 48 Ibid, [112] and [113]. -- 35 of 107 -- [2025] SADC 20 32 evidence was obtained and the potential prejudice to any party if the evidence is admitted or rejected. There are however not the same competing public policies operating. In civil proceedings there is the public policy that all admissible evidence ought to be before the Court to allow it to arrive at the correct result. On the other hand there are the public policies in protecting the individual from unlawful and improper conduct at the hands of another and in protecting the integrity of the Court's procedures. 111 Applying these principles, the court, in civil proceedings, may, in the exercise of its discretion, decline to admit admissible evidence if to do so would protect an individual from unlawful or improper conduct or protect the integrity of the courts’ procedures. There is nothing unlawful in giving evidence about a conversation without using the recording. Mr Ma is not benefitting personally from giving the evidence. The second respondent submitted that Mr Ma was a journalist at the time and deliberately went about recording the conversation unlawfully. The evidence established that Mr Ma made the recording deliberately. It was not put to him that he made the recording, knowing that it was unlawful to do so. I am not prepared to find that Mr Ma knew that the recording was unlawful. 112 There may be cases where a court would refuse to admit admissible evidence given about a conversation where a party gave that evidence by memorising the illegal, recorded version and otherwise had no recollection of the conversation. In such a case, it might be that the court would not be protecting the person who was a party to the conversation from the unlawful conduct and it would be an abuse of the court’s process. That is not this case. The evidence of Mr Ma was that he listened to the recording straight after the meeting but has not listened to it since that date. In these circumstances, Mr Ma should be permitted to give evidence about the conversation. 113 The petitioner submitted that public policy considerations also favoured the admissibility of this evidence. Public policy considerations are a relevant factor. However, it must be considered in the context of any unfairness to the second respondent and whether the admission of the evidence would undermine the integrity of the Court and its processes. 114 In the conversation on 13 May 2022, the second respondent encouraged Mr Weng and Mr Ma to enrol Chinese people on the supplementary roll so that they would be able to vote in the forthcoming election. There was nothing illegal or improper suggested by the second respondent during the course of the meeting. Mr Weng agreed that he could help enrol persons. 115 Following the meeting, a WeChat group was established between the second respondent, Mr Ma, Mr Weng and Mr James Wu. On 25 May 2022 (Exhibit P39), Mr Li and others were engaged in a WeChat group chat which discussed inter alia the address which should be recorded on applications for enrolment. As the message sent in this WeChat group on 25 May 2022 is one of the matters relied upon in the petition to support the allegation that persons acting on behalf of the -- 36 of 107 -- [2025] SADC 20 33 second respondent took possession or attempted to take possession of opened voting packs, I will consider this evidence when determining whether there have been breaches of the Elections Act. 116 On 27 May 2022, the second respondent hosted a meeting at the Ancient Oriental Restaurant at which representatives of the Chinese community and the Chinese international students community attended. Those attending the meeting included Mr Ong, the second respondent and James Wu. At the meeting, the second respondent announced his intention to run for the position of councillor at the upcoming City of Adelaide elections. As it was at this meeting that the bribe is alleged to have been offered, I will consider this evidence when determining whether the allegation that a bribe had been offered was made out. 117 Shortly after that meeting (a matter of days), Mr Ong attended a dinner at the Dumpling Festival held by the Jiangsu Chamber of Commerce. The second respondent also attended that dinner. They had a brief conversation. No evidence was given that there was any mention of the bribe at that event. 118 A third dinner was held on 5 June 2022 following the annual general meeting of the Jiangsu Chamber of Commerce. The dinner was at one of the restaurants owned by a Mr Robert Zhu, the incoming president of the chamber of commerce. Mr Ong attended the dinner. The second respondent came towards the end of the meeting. Mr Ong gave evidence that he witnessed Mr Zhu hand a folder, about 6 cm thick, to the second respondent and overheard him saying words to the effect that these are the completed enrolment forms and that he had arranged for people to sign these forms, especially members from the Jiangsu Chinese Chamber of Commerce. Mr Ong gave evidence that Mr Zhu told him how he arranged for people from the Jiangsu Chamber to fill in those forms to enrol in the election. Mr Ong agreed that there could have been about a dozen forms, although he was not certain of the number. Although he was challenged in cross-examination about his observations and the conversation, I accept that Mr Ong saw the enrolment forms. The second respondent did not give evidence on this issue or at all. It was clearly within his power to do so. The fact that Mr Ong only himself witnessed two application forms for enrolment does not undermine that conclusion. I also consider that an inference can be drawn that given a finding that Mr Ong saw Mr Zhu handed a bundle of documents to the second respondent and that the top document of that bundle was an enrolment form, that the other documents were also enrolment forms. 119 In the circumstances, I consider that there is an unexplained failure on the part of the second respondent to give evidence, if he was contending that he was not handed the forms and he did not have a conversation in the terms alleged. I can therefore more readily accept the evidence of Mr Ong on this issue. 120 For the same reasons, there was an unexplained failure on the part of the second respondent to call Mr Zhu to give evidence about these matters. Mr Zhu was clearly in the camp of the second respondent. -- 37 of 107 -- [2025] SADC 20 34 121 There was nothing illegal in the acts witnessed by Mr Ong. It is not illegal to take steps to increase the number of electors being enrolled. The petitioner submitted that the acts witnessed by Mr Ong supported the inference that Mr Zhu was an associate of the second respondent’s campaign and that this evidence, in combination with other evidence, corroborated a finding that there was a scheme in place to attempt to exercise votes contrary to s 58 of the Elections Act. I accept that this evidence shows that the second respondent was taking steps to increase the enrolment in the election and that Mr Zhu was involved in that process, but there was nothing illegal or improper in that activity. 122 A further dinner was held following the student elections at the end of August 2022. Mr Ong gave evidence that he attended that dinner and met with a Mr Trinity Zhang who spoke highly of Mr Li and was critical of Mr Hou’s performance as a councillor. Mr Zhang had just completed his terms as a Study Adelaide Ambassador. Visits to Apartment Buildings by Mr Hou and Mr Hyde 123 In September 2022 (prior to the ballot papers being posted out), Mr Hou visited many apartment buildings including the Vision Apartments, the Gallery, 175 Morphett Street, Altitude, Aria, Realm, West Franklin and Central Adelaide and many others and noticed that the letterboxes were quite full. That evidence is vague. Mr Hou did not give specific observations as to what he observed at each of the specific apartment blocks. 124 Mr Hou gave evidence that he visited the same apartment blocks a day before or a day after 14 October 2022 when the ballot papers had been sent out and that the purpose of his visit was to make a letter box drop to inform people that they had received their ballots and it was time for them to vote. He said that at this time he had noticed that many of the apartment buildings had received the ballot paper envelopes in their letterboxes. Mr Hou gave evidence that he undertook a third run about a week later, this time in the company of Mr Hyde. He said that on this occasion he observed that many of the ballot papers had been taken from the letterboxes. He said that he did not know if the letterboxes were empty or whether just the ballot papers had been taken. He did not see the ballot papers being removed. Mr Hou accepted in cross-examination that he did not mention this matter to the Electoral Commissioner in his statement. 125 Mr Hyde also gave evidence that he, with Mr Hou and possibly another candidate, visited a number of apartment blocks (and could say that he definitely visited the Kodo Apartments, Penny Place, Realm Apartments and Vision on Morphett) in the Central Ward on the weekend in October 2022 when the ballots had just been posted (which must have been 15 October 2022 and 16 October 2022) and observed ballot papers had already arrived in many letterboxes. Mr Hyde then gave evidence that he attended with Mr Hou at the abovenamed four apartment blocks the following weekend and observed that there were no ballot -- 38 of 107 -- [2025] SADC 20 35 papers in the letterboxes. In cross-examination, Mr Hyde accepted that the observations he made were general observations. 126 I accept the evidence of Mr Hou and Mr Hyde that on the weekend of 15 and 16 October 2022 that they observed ballot papers in many letterboxes and that when they returned to visit those apartment blocks about a week later, there were many letterboxes in which the ballot papers had been removed. 127 I will deal with the effect of this evidence when considering the allegations made by the petitioner in the petition. WeChat Message to Pick Up Ballots 128 Mr Hou gave evidence that he recalled receiving a WeChat message that stated something like “Tuesday night, 7 o’clock, that kind of details. Coming down to the foyer to pick up your ballot pack. That kind of stuff.” Mr Hou did not disclose the name of the person who sent him the message. He said that person had screenshot the message and then quickly recalled it. He said that he did not know where the original message was from. He said that the message did not make reference to any particular candidates. He was not 100% sure on whose behalf the original message had been sent. 129 I do not attach any weight to this message. Mr Hou himself was vague about the details saying that it had been a long time since he saw the message. He saw it for a very short time before it was recalled. He could not recall on whose behalf the original message was sent. The message made no reference to any candidate. The identity of the intermediary who passed the message onto Mr Hou remained undisclosed. The second respondent is not able to challenge the evidence. In all of these circumstances, based on the principles set out in Pochi, it would be unfair to the second respondent to place any reliance on that evidence or give any weight to it. The second respondent is not able to respond to that evidence. The evidence lacks cogency. Mr Hou’s Communications with 22 Persons not receiving Ballot Papers 130 Mr Hou gave evidence that he had communicated in writing with 22 persons who complained that they did not receive ballot packs. Mr Hou could only find evidence of written communications with 4 people. The evidence concerning these witnesses is unclear as to who did not receive ballot papers and for what reason. For example, in one case, YYDY Group P/Y Go-In Hotpot, the address on the voter’s roll may have been incorrect. Mr Hou agreed that his concern was that a ballot paper that was left in an incorrect site might be picked up by someone else. He did not have any evidence that the ballot paper had been misused. He said that he only asked the Electoral Commissioner to investigate the matter. 131 I do not place any weight on this evidence. It might be expected that some persons did not receive ballot papers. The Electoral Commissioner, Mr Sherry, confirmed that it was quite a normal occurrence for the Electoral Commission to -- 39 of 107 -- [2025] SADC 20 36 receive complaints about the non-receipt of ballot papers. There was no evidence that if all or some of the persons referred to by Mr Hou did not receive ballot papers, that the second respondent was involved in or responsible for that event. Further, there was no evidence that the non-receipt of ballot papers was the result of illegal practice. Two Persons handling Voter Packs outside Vision on Morphett - 27 October 2022 132 On 27 October 2022, Mr Hou witnessed two persons handling voting packs outside the Vision on Morphett Apartments, 180 Morphett Street, Adelaide. Mr Hou’s wife, who was with him at the time, took 3 photographs of this event (Exhibit P7). The photographs show the person in the blue jumper holding a number of ballot papers including an opened ballot paper which he appeared to be checking. The same photograph also showed the person in the black jacket was also holding a ballot paper. Mr Hou did not recognise the men. He said that after his wife took the photograph, the two men walked quickly away and he and wife kept walking to the Stonemill Restaurant which is on the ground floor of the Vision apartments. Mr Hou gave evidence that one of the photographs showed the ballot paper (light blue in colour) for the City of Adelaide. The colour of the ballot paper accords with the colour for the ballot paper for the election of the area councillor (see the Electoral Commissioner table of ballot paper colours, Exhibit 1R46 and the ballot colours in the ballot pack, Exhibit 1R9). Mr Hou said that there were 5 ballot papers. Mr Hou was adamant in cross-examination that the ballot paper was for the City of Adelaide. 133 The evidence of Mr Hou about the photographs describes no more than what is evident from the photographs themselves. He does not add to the description by making further observations before or after the photographs were taken. 134 I accept the evidence of Mr Sherry that the ballot papers for all council elections are contained in the same colour and style envelope (as depicted in Exhibit 1R8), the only difference being there is written in the top left hand corner of the envelope details of the returning officer of the council in respect of which the ballot papers pertained. This writing was not visible to Mr Hou. 135 The second respondent submitted that the ballot papers that are shown in Exhibit P7 may equally have been from the City of Burnside and therefore no inference can be drawn that they related to the City of Adelaide election. The second respondent referred to the conversation between Mr Bai and Mr Hou (discussed in further detail below) in which, Mr Bai, when shown the photograph, said the two men (who were in Exhibit P7) were holding Burnside Council ballot papers. Mr Bai told Mr Hou: Don’t overthink it. That is Burnside’ ballot paper….What does it have to do with you? Do you want to go up to get the ballot paper for you. That one you showed me just now, I-I probably know what’s going on. I ran into him when I went in just then. Burnside’s ballot papers. That thing [sigh] anyway, whatever you do, -- 40 of 107 -- [2025] SADC 20 37 just don’t involve me. In fact, there wasn’t any-any entangled interests or shared interests, right? But… … it is impossible-late at night [unintelligible]. You know. So that’s it. And then that [unintelligible], I tell you that they really were Burnside’s ballot papers. I ran into them just as I was walking in. Don’t overthink it. But with this sort of thing, the behaviour you mentioned certainly exists, I don’t even need you to tell me to know that. 136 Mr Hou did not challenge Mr Bai on this point. 137 I do not accept the submission that in the photographs the two persons were discussing Burnside ballot papers. The photographs were taken outside an apartment block in central Adelaide. They were near letterboxes of apartment buildings. It is inherently unlikely that two persons would be engaged in a conversation about Burnside ballot papers in that location. Further, the ballot paper that is visible in the second photograph of Exhibit P7 is light blue in colour. That is the colour of the ballot paper for the area councillors in the City of Adelaide or the ballot paper for the election of councillors for ward 6 of other councils. It is not a reasonable inference that the two persons would have been having a discussion about a ward 6 ballot paper of another council. There is no evidence as to whether there was a ward 6 ballot paper for the City of Burnside. As appears later in these reasons, I am satisfied and make a finding that the persons in the blue jumper and the black jacket were acting on behalf of the second respondent. That is a further fact which provides a basis for the inference that the ballot papers were City of Adelaide election. 138 The second respondent further submitted the ballot papers may have been from the North Ward or the South Ward and therefore no inference could be drawn that they were ballot papers from the Central Ward. I accept that no Central Ward ballot paper can be seen in Exhibit P7 but do not accept that no inference can be drawn from Exhibit P7 and the circumstances and location in which it was taken. The photographs were taken outside of an apartment building that was situated in the Central Ward. The inference can be drawn from the photograph and the observations of the two men that it was a pre-arranged meeting and not some random encounter. The further inference can be drawn that the two persons shown in Exhibit P7 were discussing and handling ballot papers collected from that address. I am satisfied that the persons in the blue jumper and black jacket were acting on behalf of the second respondent. In these circumstances, the inference can be drawn that the ballot papers that were being handled and discussed were ballot papers that involved the second respondent- ie - ballot papers of the Central Ward. Mr Bai and Mr Jin handling Ballot Papers - Stonemill Restaurant - 27 October 2022 139 Following his observations of the two men outside the Vision apartments, Mr Hou and his wife entered the Stonemill Restaurant which is in front of the Vision apartments. He there saw Mr Bai and Mr Keith Jin, both of whom he -- 41 of 107 -- [2025] SADC 20 38 recognised. Mr Hou knew Mr Bai to be a director of Majesty Real Estate. Mr Hou knew Mr Jin to be on the second respondent’s campaign team. 140 Mr Hou gave evidence that he saw Mr Jin with about a dozen ballot papers. In cross-examination, he said that the ballot papers that were in his hand were about 10-15 cm thick. In cross-examination, he agreed that when he told the Electoral Commissioner there were approximately 10 ballot papers, that would have been correct. He said that he could not say whether the ballot papers were open or closed as it was “just a blink”. He said that Mr Bai did not have anything in his hand. Mr Hou said that Mr Jin and Mr Bai ran away when they saw him and his wife. In cross-examination, he said that they walked out of the restaurant. 141 Mr Hou gave evidence that he then called Mr Bai on the telephone and Mr Bai returned to the restaurant straight away. Mr Bai and Mr Hou then had a conversation. Mr Hou’s wife recorded the conversation save for the first couple of minutes. Mr Hou said that in the first couple of minutes, he said to Mr Bai that he was not doing the right thing. 142 Insofar as Mr Bai made statements during the course of the conversation as to what he was doing when seen by Mr Hou, I consider these statements to be admissible. As the statements were recorded, there is no dispute about what was said and in what context. I have taken into account the submissions from senior counsel for the Electoral Commissioner and counsel for the second respondent that the transcript was not complete and contains instances where the things that were said could not be transcribed. The first part of the transcript was not transcribed. That may give rise to limitations on the use that can be made to some aspects of the conversation. However, the substance of what Mr Bai said in the passages that have been referred to above is clear. There is no unfairness to the second respondent in circumstances where Mr Bai is explaining his actions to Mr Hou who had witnessed Mr Bai and Mr Jin in the Stonemill Restaurant. I consider the evidence to which I have referred to be cogent evidence and rationally probative of a relevant issue raised by the petition. Applying the principles in Pochi, the evidence is admissible. 143 The second respondent further submitted that the statements should not be admitted because Mr Bai was not called as a witness and could not be the subject of cross-examination. I have found that a Jones v Dunkel inference is available against the second respondent for failing to call Mr Bai. The inference does not lie against the petitioner. It is not correct to say, as the second respondent submitted, that senior counsel for the petitioner suggested that a subpoena would be issued to Mr Bai. Senior counsel for the petitioner stated:49 Well in my submission, your Honour should receive the document and we can have an argument about use at a later stage. If ultimately this is a submission that my learned friend 49 T 208.12. -- 42 of 107 -- [2025] SADC 20 39 has a proper basis to cross-examine Mr Bai, we will consider that and it may be that a subpoena is issued to Mr Bai, nothing [noting] that we say he is a person in Mr Li’s camp. 144 During the course of the conversation, Mr Bai said that he was giving his company ballot papers to Mr Jin. 145 Mr Hou’s evidence was that he saw Mr Jin and Mr Bai in the restaurant and that Mr Jin had about 10 ballot papers in his hand. Mr Jin and Mr Bai then walked away after Mr Hou and his wife came into the restaurant. Those observations are confirmed by the conversation between Mr Bai and Mr Hou. In the conversation, Mr Bai accepted that he had handed ballot papers to Mr Jin (although he did not say that they were ballot papers for the City of Adelaide election). During the conversation, Mr Bai said to Mr Hou that the ballot papers were his company’s ballot papers. In the recording, Mr Bai said: And for example, he approached us, right? So we gave him the company’s ballot paper. [unintelligible]. ballot papers was given to him. And I give you those of my investment properties. I only [unintelligible]. 146 Mr Huo did not challenge him on this point. 147 I accept the submission of the second respondent that there is some ambiguity in the translation of “xaun piao” and whether that is referring to the ballot paper or vote. That is, the ambiguity is whether Mr Bai was saying that “we gave him the company’s ballot paper” or “we gave him the company’s vote”. 148 The second respondent submitted that the effect of what Mr Bai said was that we gave him the company’s vote rather than we gave him the company’s ballot paper. I am prepared to accept that Mr Bai was referring to the vote rather than the ballot paper in the passage quoted above. I come to this conclusion for two reasons. First, immediately before the quoted passage, Mr Bai states that “and you can vote however you want”. The topic he is addressing appears to be the voting rather than ballot papers. Secondly, in the quoted passage, Mr Bai refers to “giving you those of my investment property” . That can only be a reference to giving to Mr Hou the votes in relation to the investment property. 149 The second respondent submitted that what was handed over to Mr Jin were the completed company votes, already cast. The second respondent further submitted that Exhibit 2R33 showed that ten ballot papers were returned from Majesty Real Estate and that it was quite conceivable that it supported what Mr Bai had said about giving the company votes or giving the company ballot papers. 150 I do not accept that it was the voter packs of his companies that Mr Bai handed to Mr Jin. I have come to this conclusion for the following reasons. First, it is inherently unlikely that Mr Bai would have 10 companies that he controlled which would be entitled to vote in the Adelaide City Council election. There is no evidence that he controlled that number of companies. There is no evidence that Mr Bai himself signed 10 declaration forms. Secondly, it is inherently unlikely that -- 43 of 107 -- [2025] SADC 20 40 he would hand to Mr Jin in a public place ballot papers that he, Mr Bai, had completed. That would, in any event, be a contravention of the Elections Act as Mr Jin would not have any entitlement to such voting papers. There is no reason if Mr Bai had completed and signed the declarations, that he would not have posted them back to the returning officer. There is no explanation why he would give the completed ballot papers to Mr Jin, even if he was entitled to the ballot papers. The ballot papers that were returned from an address under the control of Majesty Real Estate were addressed to a number of different persons and companies (Exhibit 2R33). Thirdly, the interchange between Mr Bai and Mr Jin occurred a few metres from the interchange between the two persons seen in Exhibit P7. I do not accept that the two interchanges were entirely independent. Mr Bai, as is apparent from the transcript of the recording of his conversation with Mr Hou, spoke to one or other of the persons named in Exhibit P7 as he was told, according to the transcript, that they were ballot papers of Burnside Council. It could be presumed that he knew that person. It is not clear why that person felt the need to justify his actions to Mr Bai. Fourthly, Mr Jin acted as an assistant to the second respondent during the course of the election. The nature of the interchange between them suggests that what was taking place was something for the benefit of the second respondent. 151 Although not expressly raised by counsel for the Commissioner or the second respondent, I further find that Mr Bai was not handling City of Burnside ballot papers. That is inherently unlikely. If City of Burnside papers were being handled, it would also be an illegal practice. There is no evidence that Mr Jin or Mr Bai were in any way connected with the City of Burnside election or the campaign of any candidate in the City of Adelaide election other than the second respondent. WeChat Message from Miranda Li 152 The petitioner also relied upon the communication between Mr Tian Par Lim and a Ms Miranda Li by way of WeChat on 27 October 2022. There is no evidence that Ms Li was in any way connected with the second respondent or his campaign to be elected. The WeChat communications (Exhibit P20) record the following interchange: Ms Li: Just want ask you one thing. Have you got a letter for vote? (showing picture of the blue/green envelope in which the ballot papers are contained) Like this. Mr Lim: Yes. Why? Ms Li: Have you vote yet? Mr Lim: Already voted. Ms Li: Can you please give my friend some? -- 44 of 107 -- [2025] SADC 20 41 Oh no. Who did you vote? Mr Lim: Just the Chinese candidates. Don’t really know them. Ms Li: (shows a picture of the ballot papers, including the purple ballot paper for the Central Ward with the name of the second respondent circled). This is my friend. Li Jing Ms Li: Did you vote him? Mr Lim: I see. Don’t know him. Ms Li: Did you vote him? Mr Lim: As I said I voted for Chinese candidates even though I don’t know them. Ms Li: Ok Mr Lim: I actually had 4 ballot voting papers! But nobody approached me for my 4 votes. Ms Li: Oh Do you still have? Mr Lim: As told u, I have already voted. All gone Ms Li: Ok I got it. 153 Mr Lim gave evidence that it was his interpretation of the communications that Ms Li was asking him for his ballot papers. I place little weight on Mr Lim’s interpretation of the words that comprise the subject matter of the communications between him and Ms Li. Other than saying that Ms Li’s English was limited, he did not give any evidence as to why his interpretation of Ms Li’s word should be adopted. I am not satisfied that Ms Li was asking Mr Lim for his ballot papers. The words that she used were to ask him for his vote. I accept that there is some ambiguity in her language, but I consider that the preferable construction of the communications is that she is referring to seeking his vote, rather than his ballot papers. Study Adelaide Event 154 Mr Ong gave evidence that he attended an event known as the Study Adelaide event. He said that he could not recall the date of the event but that it was near Christmas. He said that he spoke to Mr Trinity Zhang at this event. He said that there was talk about the news article which contained the photographs (Exhibit P7) and that Mr Zhang told him that he helped collect unfilled ballot papers from student apartments especially in the Realm apartments. Mr Zhang told Mr Ong that he would knock on students doors to collect those unfilled ballot papers. He -- 45 of 107 -- [2025] SADC 20 42 confirmed that evidence in cross-examination. Mr Ong gave evidence that Mr Zhang said it was unfortunate that the photograph (Exhibit P7) was taken and that he identified the people in the photograph and that one of the persons (the person in the black jacket) was texted by the second respondent, Mr Li, to hand the ballot papers to the other person (the person in the blue jumper) who was on Mr Li’s campaign team. Mr Zhang said that Mr Li had got a number of people to sign the unfilled ballot papers and fill them in to ensure the writing would be different. Mr Ong said that he did not personally recognise either man in the photograph. 155 In cross-examination, Mr Ong said that the event occurred sometime between September - December 2022 but could not recall the date. He accepted that it must have occurred after 1 November 2022 when the photograph was published. He later accepted that the Study Adelaide dinner was after the election had finished. Mr Ong said that the words spoken were “xuan piao” which he had said could mean “ballot” or “ballot paper.” 156 The question arises as to what use can be made of this evidence. It is clearly hearsay evidence and falls then to be considered in the accordance with the principles laid down by Brennan J at first instance in Pochi and confirmed on appeal. Both the Electoral Commissioner and the second respondent submitted that no weight should be given to the hearsay evidence of Mr Ong about his conversation with Mr Zhang at this event and that he was informed of the identity of the persons in Exhibit P7 by Mr Zhang or the hearsay evidence that Mr Zhang told Mr Ong that he personally collected unfilled voter packs and that other persons did the same. It was submitted that the seriousness of the allegations and the failure to call Mr Zhang as a witness were further reasons why this evidence should not be given any weight. The second respondent also submitted that there was no evidence that the residents of the Realm Apartments had not completed and lodged the declaration on the voting envelope. That submission ignores the evidence of Mr Ong that Mr Zhang said that he collected unfilled ballot papers from the apartments. 157 It is clear from the documents that were discovered by the second respondent on the re-opening that Mr Zhang was working on the campaign for the second respondent. In WeChat messages sent on 8 July 2022, the second respondent said that he needed someone to manage his election campaign and Mr Zhang replied “if I can help, it would be my honour.” Further WeChat messages show that Mr Zhang was actively involved in the enrolment of voters. Mr Zhang also himself witnessed the signing of 10 enrolment forms. The WeChat messages also show that Mr Zhang was also involved during the election campaign in October and November 2022. 158 I accept Mr Ong as an honest and reliable witness. I accept his evidence about his conversation with Mr Zhang. It is entirely plausible that the publication of Exhibit P7 (the photographs) would have given rise to a conversation about the photographs and matters related to that photograph. The second respondent -- 46 of 107 -- [2025] SADC 20 43 submitted that it was inherently unlikely that Mr Zhang would have made the statements to Mr Ong at this event given that this was only the second time that they had met and in circumstances where there was media attention regarding the election. In effect, this submission contains the underlying assumption that Mr Ong has fabricated this whole conversation. I do not accept that submission. Mr Ong’s evidence on this topic was clear and coherent. There was no suggestion that it was not reliable. I also accept the submission of the petitioner that given their past meeting, their common previous experience as Study Adelaide ambassadors, it is not inherently unlikely that Mr Zhang would have discussed these matters with Mr Ong. I reject the submission that the evidence of Mr Ong is not reliable or credible because of the findings that I have made about the dinner at the Ancient Oriental. 159 There was no evidence that suggested Mr Zhang’s statements to Mr Ong were false or not reliable. Insofar as Mr Zhang was giving an account of his own actions, I accept that Mr Zhang gave that account to Mr Ong. There was no ambiguity about what Mr Zhang said or any risk that what he said was taken out of context or was incomplete. 160 The evidence as to what Mr Zhang told Mr Ong both as to his own actions in collecting unfilled ballot papers and recognising the person in the blue jumper in Exhibit P7 as a member of the second respondent’s campaign team is clearly hearsay. However, it is cogent evidence and is logically probative of the matters in issue. There is no disadvantage to the second respondent as he is able to respond to the allegations about the role of Mr Zhang in the campaign. The second respondent’s failure to call Mr Zhang was unexplained. There was no other practical way for the petitioner to adduce that evidence as Mr Zhang did not identify the persons from whom he collected the ballot papers. Taking all of these matters into account, the evidence of Mr Ong’s conversation with Mr Zhang is admitted and I find it to be logically probative of the matters which were said by Mr Zhang in that conversation. 161 I find that Mr Zhang said to Mr Ong that he helped collect unfilled ballot papers from student apartments especially in the Realm apartment by knocking on students doors to collect unfilled ballot papers. Based on that statement, I further find that Mr Zhang in fact helped collect unfilled ballot papers from student apartments especially in the Realm apartment by knocking on students doors to collect unfilled ballot papers It is not possible to make a finding as to how many unfilled ballot papers Mr Zhang collected. The inability to make that finding does not have the consequence that all of the evidence of Mr Ong on that topic should not be admitted or is to be given no weight. 162 There is some confirmation of the conduct of Mr Zhang in WeChat communications with the second respondent. On 17 October 2022, there was the following exchange (Exhibit P75, p 1498): -- 47 of 107 -- [2025] SADC 20 44 Second respondent: Someone is pretending to be one of us, and is collecting ballots under my name, Please inform everyone and don’t give your ballots to others without double checking: Trinity Zhang: do you know where this happened? Second respondent: In a restaurant. Someone went there to collect ballots Trinity Zhang: Then I will try to inform everyone. 163 I accept that after hearing the evidence of the translators that a more accurate translation of the sentence that reads “Please inform everyone and don’t give your ballots to others without double checking” is “Please inform everyone and don’t give your ballots to others in a careless manner”. 164 In this passage, the second respondent is requesting Mr Zhang to instruct others that they should not give their ballot papers to others in a careless manner - in other words, to check that the person to whom they were giving their ballot papers was in fact collecting ballot papers on behalf of the second respondent. This is an implicit acknowledgment by the second respondent that he knew and did not object to persons collecting ballot papers on his behalf, although there is no specific mention of Mr Zhang collecting ballot papers. Mr Zhang also says that he would instruct others accordingly. 165 The fact that the second respondent did not call Mr Zhang to give evidence allows me to have greater confidence in the evidence of Mr Ong that Mr Zhang told him that they collected the unfilled ballot papers from student apartments and especially from the Realm Apartments and that statement was correct. 166 I also find that Mr Zhang recognised the person in the blue jumper in Exhibit P7 as a member of the second respondent’s campaign team. 167 The second respondent was in a position to give evidence about the identity of the person in the blue jumper and whether he was on his campaign team. The fact that the second respondent did not give that evidence allows me to have greater confidence in the evidence of Mr Ong that the person with the blue jumper was on the team of the second respondent. 168 The second respondent did not call Mr Zhang to give evidence. Mr Zhang could be expected to have been able to give evidence about his conversation with Mr Ong and whether the person in the blue jumper was someone he identified as being on the campaign team of the second respondent. The fact that Mr Zhang did not give that evidence allows me to have greater confidence in the evidence of Mr Ong that the person with the blue jumper was on the team of the second respondent. -- 48 of 107 -- [2025] SADC 20 45 169 I therefore find that Mr Zhang identified the person in the blue jumper as a person on the second respondent’s campaign team and acting on his behalf. I make no finding as to whether the person in the blue jumper was acting with the authority of the second respondent when the person in the blue jumper was seen holding the ballot papers. I also find that Mr Zhang identified the person in the black jacket. Given the circumstances of the interaction between the person in the blue jumper and the person in the black jacket and the finding that the person in the blue jumper was on the second respondent’s campaign team, the more probable inference is that the person in the black jacket was also on the second respondent’s campaign team and acting on his behalf. Again, I make no finding as to whether he was acting with or without the authority of the second respondent when the photographs were taken. 170 I am not prepared to make a finding that the first person in Exhibit P7 (the person in the black jacket) was texted by the second respondent to hand the ballot papers to the other person (the person in the blue shirt). That statement by Mr Zhang was conclusionary. It is not clear as to the evidentiary basis that he had for making the statement. He did not say that he saw that message. 171 Mr Ong also gave evidence that Mr Zhang said to him that the second respondent had arranged for a number of people to sign the unfilled ballot papers and fill them in to ensure the writing would be different. That evidence also does not specify how Mr Zhang knew of these matters. In those circumstances, I am not prepared to make a finding, based on that evidence, that the second respondent instructed a number of persons to sign unfilled ballot papers. If a finding was made about that matter, there would be an unfairness to the second respondent as it would be placing weight on evidence where the source of Mr Zhang’s knowledge was not clear and therefore the reliability of that evidence was uncertain. Conversation between Mr Ma and Mr Weng - 10 November 2022 172 Mr Ma also had a conversation with Mr Weng on 10 November 2022. That conversation was recorded. In proceedings in the Supreme Court, Kimber J granted the petitioner leave to use that recording (Exhibit P41). In the conversation, Mr Weng said that he and a Mr Wei signed “it”. It appears that the reference to “it” was a reference to registration papers. 173 I do not consider that this evidence assists the Court. The recording is unclear as to what Mr Weng actually did and whether he signed enrolment forms as a witness or in some other capacity. Mr Ma said he did not know what part of the registration form was signed by Mr Weng and Mr Wei. The conversation suggests that the forms were sent to the office of the second respondent but it is not in dispute that the second respondent was active in encouraging and facilitating voters to enrol. The petitioner asked the Court to infer that the conversation was referring to the declaration on the ballot papers and not enrolment forms. In making this submission, the petitioner referred to the context in which the conversation occurred including that it was referring to the photograph in Exhibit P7. The -- 49 of 107 -- [2025] SADC 20 46 petitioner further submitted that Mr Ma’s evidence that the discussion was referring to enrolment forms and not ballot papers should be discounted as the recording (Exhibit P40) and the transcript of that recording (Exhibit P41) spoke for themselves. 174 I consider that Mr Ma was in the best position to give evidence as to the subject matter of the discussion, particularly where the transcript is not clear. I am not prepared to find that Mr Weng made any statement about ballot papers. I place no weight on this conversation. Complaints to the Electoral Commissioner and investigation by the Electoral Commission 175 The petitioner made a number of complaints to the Electoral Commissioner. In making these complaints, the petitioner was primarily relaying matters about which he had been advised by others, including Mr Hou and Mr Ong. The complaints therefore do not provide additional reasons for the granting of relief. The investigation and steps taken by the Electoral Commissioner in response to the complaints is however relevant in assessing the allegations contained in the petition and their effect on the outcome of the election. 176 The petitioner lodged his first complaint relevant to the matters raised by the petition on 25 October 2022 about the collection of ballot packs from persons living in the Vision Apartment building and an allegation that they were instructed to provide their packs to someone who was coming to collect them from the foyer (Exhibit P26). I do not place any weight on that allegation. It is second hand hearsay which does not identify the person who is alleged to have committed the act, who observed the act and who reported it to Mr Hyde. The petitioner lodged or supplemented that complaint by a letter on 27 October 2022 in which he advised that he had been told that “quite a few hundred ballots have been collected from apartment blocks in the city.” That statement is also hearsay and does not provide any evidence of its source. I place no weight on that statement. Also on 27 October 2022, the petitioner advised the Electoral Commissioner of the photograph taken by Mr Hou (Exhibit P7) and provided copies of those photographs. The petitioner continued to communicate with the returning officer after lodging the complaints. 177 The actions taken by the Electoral Commissioner comprised two parts. The first part comprised the initial scrutiny process conducted pursuant to s 47 of the Elections Act. That involved an examination of the declaration on ballot papers. As set out previously, there were 368 ballots rejected at this stage. Ninety ballots were later also rejected as informal in the normal processes undertaken by the Electoral Commissioner. 178 Following the receipt of the complaints from the petitioner, the Electoral Commissioner commenced an investigation pursuant to s 92 of the Elections Act. The investigation involved the examination of the ballot papers that were returned from the 4 apartment buildings that had been identified by the petitioner in his complaint (Exhibit P26). Those apartment buildings were Vision Apartments, -- 50 of 107 -- [2025] SADC 20 47 Realm, Kodo Apartments and Penny Place. The Commissioner identified that there were 343 enrolled electors at those apartment blocks and that 90 ballot papers on the supplementary roll were returned from those four addresses. It was from these ballot papers from the supplementary roll that the further scrutiny was undertaken. The further scrutiny involved: (a) a comparison of the signature on the enrolment form with the signature on the declaration; and/or (b) confirmation from the elector, where that was possible, that they did not vote. 179 As a result of that further scrutiny of the 90 ballot papers that were received from the four apartment buildings: (a) one had been rejected as part of the standard initial scrutiny process due to it being a duplicate. (b) twenty three ballot papers were rejected as a result of the further scrutiny: one ballot paper because it was a duplicate, one on the basis that it had been filled out by the elector’s partner and 21 on the basis that it had been filled out by a person other than the voter. That scrutiny occurred prior to the polling day. The Commissioner subsequently contacted a number of these voters and 4 confirmed that they had in fact voted. A further 3 voters confirmed that they did not vote. Therefore, had that information been known to the Commissioner, 19 votes in total would have been excluded as a result of the further scrutiny. (c) sixty six ballot papers were accepted and proceed to the count. Of these 66 voters, 33 were successfully contacted by telephone and confirmed that they had voted. 180 In his opening, the petitioner alleged that the inquiry by the Commissioner was manifestly inadequate in determining what happened in respect of these votes. Mr Hyde gave evidence that an exclusion rate of 23 ballots from 90 was a high ratio of exclusion. In his closing address, senior counsel for the petitioner accepted that the Commissioner had done what he considered to be appropriate in the circumstances. 181 I reject the criticism of the Electoral Commissioner in relation to his investigation. The investigation focussed on the subject matter of the complaint, namely ballot papers returned from voters on the supplementary roll from the 4 identified apartment buildings. Further, given the subject matter of the complaint and the need to complete the investigation expeditiously so that the results of the election could be certified, it was reasonable to limit the investigation of that complaint to ballot papers that were returned from voters on the supplementary roll. As Mr Sherry explained, to be on the House of Assembly Roll, the voter must be an Australian citizen, 18 years of age and have resided at the particular premises for more than one month. -- 51 of 107 -- [2025] SADC 20 48 182 During the course of the trial, the Commissioner, in response to a notice to produce, produced a schedule which showed that from the 4 apartment buildings a further 71 ballot papers were accepted from persons who were on the House of Assembly Roll (Exhibit 1R48). In addition, the Commissioner produced a schedule showing a further 36 ballot papers were returned from the Realm apartments of which 29 were from voters on the House of Assembly roll and 7 voters on the supplementary roll. These were not included in the initial 90 ballot papers that were subject to the further scrutiny as a result of the complaint from the petitioner because the petitioner had specified 15 Austin Street as one of the addresses that were the subject matter of the complaint whereas in fact Realm apartments are at 15-17 Austin Street. Therefore, the scrutiny of the 90 ballots of voters on the supplementary roll from the 4 identified apartment buildings did not include ballots from voters who had as their address as 17 Austin Street only. 183 The petitioner criticised about 6 individual decisions made by officers of the Electoral Commissioner. For example, 2 voters did not have an application for enrolment because they were automatically included on the supplementary roll because they were a property owner. A property owner is automatically placed on the supplementary roll and does not have to complete an application form.50 Therefore, there was no scrutiny undertaken by the Commissioner in respect of those voters. In three further cases, an assessing officer has given an opinion about signatures but the reviewing and more senior officer has come to a different conclusion. On one occasion, an assessment was made that the signatures did not match, but the vote was accepted when the voter was contacted by telephone and confirmed that he had voted. In these circumstances, it appears that the criticisms made by the petitioner were that in 2 cases further steps should have been undertaken and 4 cases where a different conclusion should have been reached. 184 I do not consider these complaints to be justified. The Commissioner is undertaking a review in the very limited time available. It is not a detailed investigation. Mr Sherry gave evidence that there were 184 separate elections being conducted across all the councils in the State in the 2022 council elections. It is clearly not feasible to undertake any more detailed an investigation that that which was carried out by the Commissioner. 185 The petitioner also submitted that there were 4 votes that were accepted by the Commissioner when there was evidence, on the investigation, which meant they should have been rejected. There is no pleading in the petition which refers to these persons except for Hongru Gu who was one of the persons named in Appendix A to the petition. There is no evidence linking the matters found on the investigation by the Commissioner to the second respondents. In the case of Hongru Gu, there is a note that the investigator says the signature on the application form and the declaration did not match and that the elector was called and refused to cooperate. I do not place any weight on the opinion of the investigator as to the 50 Clause 2(1)(a)(iii) of schedule 1 of the City of Adelaide Act. -- 52 of 107 -- [2025] SADC 20 49 signatures. The matching of the signatures was a matter of expert evidence from Mr Hobden. The response by the voter does not add anything. 186 The petitioner also submitted that there were two declarations which were incomplete or not signed and should not have been accepted. That might be the case but there is no pleading about this matter. There is no evidence connecting these matters to any contravention of the Elections Act or to the second respondent. I therefore do not take these matters into account. 187 The petitioner also criticised the failure of the Commissioner to notify him about the further scrutiny so that the petitioner could have scrutineers present when that further scrutiny was undertaken. I reject that criticism. The evidence demonstrates that the candidates were advised generally of the scrutiny process (by way of a candidates handbook, Exhibit 1R61). I do not consider that clause 19 of schedule 1 of the City of Adelaide Act (which is in similar terms to s 47 of the Elections Act) requires a scrutineer to be present when the further investigation is undertaken. Those provisions and ss 48 and 66(2) of the Elections Act contemplate that the scrutineers may be present when the votes are being counted. The Elections Act does not require that the scrutineers be present when the Commissioner is undertaking further scrutiny. 188 The petitioner asked for a recount on 16 November 2022 (Exhibit P29) but that request was refused by the Electoral Commissioner on 17 November 2022 (Exhibit P30). Under s 49 of the Elections Act, the request must be granted unless the returning officer considers that there was no prospect that a recount would alter the result of the election. The Commissioner formed this view. Given the investigations that he had carried out, that was a reasonable view to form and not something that is the subject matter of this petition. Any recount would not have revealed any illegal practices. 189 The investigation by the Commissioner and its results does not assist the Court in determining the issues that arise from the petition. Irrespective of any findings by the Commissioner, it is for the Court to determine, on the evidence before it, whether there had been a contravention of the Elections Act or the common law of elections (if it applied). What the Commissioner has found, on different evidence, does not assist this process. The only relevance of the investigation is in relation to some factual matters to which reference has been made in these reasons. 190 I do not consider any conclusions can be drawn as to allegations contained in the petition from the exclusion of the 23 ballot papers. There is nothing to link the votes that were excluded with the second respondent or those acting on his behalf. The Electoral Commissioner conceded that there had been some interference with the election although he did not make any finding as to the extent of that interference or who was responsible for it. The investigation does not assist in the proof of the matters contained in the petition. -- 53 of 107 -- [2025] SADC 20 50 Determination of the Allegations in the Petition of Bribery – ss 57(1)(b) and 57(1)(c) of the Elections Act 191 Section 57 of the Elections Act provides: (1) A person who exercises violence or intimidation, or offers or gives a bribe with a view to— (a) inducing a person to submit or withdraw candidature for election; or (b) influencing the vote of a person at an election or poll; or (c) otherwise interfering with the due course of an election or poll is guilty of an offence. Maximum penalty: $10 000 or imprisonment for seven years. (2) A person who receives a bribe offered in contravention of subsection (1) is guilty of an offence. Maximum penalty: $10 000 or imprisonment for seven years. (3) In this section— "bribe" includes any pecuniary sum or material advantage including food, drink or entertainment where the value of the food, drink or entertainment is of or above the prescribed value. 192 The petitioner pleads that the second respondent offered a bribe to those present at a dinner meeting held on 27 May 2022 of leaders within the Adelaide international student community which included Chinese student leaders. It is pleaded that the second respondent said at the dinner that he was going to run for election and that he wanted those present to use their connections to Chinese student association groups to assist him in enrolling Chinese students and getting them to vote for him in the election and that he promised a job to the person who managed to obtain the most enrolments and votes for him. 193 The allegation of a bribe relies upon the evidence of Mr Ong. 194 It is not in dispute that there was a dinner at the Ancient Oriental Restaurant on 27 May 2022. Mr Ong attended at that dinner and was invited by Mr Merlin Wang who was then the president of the Chinese Student Association at the University of Adelaide. At that time, Mr Ong was the president of the Student Union at the University of Adelaide. The purpose of the dinner was to obtain the support of those attending for the candidacy of the second respondent for the election for a councillor for Central Ward. Those who attended the dinner included the second respondent, Mr Keith Jin, Mr James Wu, who was then President of the Jiangsu Chamber of Commerce, Mr Robert Zhu who was the incoming president of the Jiangsu Chamber of Commerce, Tony Zhang from the University of Adelaide and Angelo Liang from the Flinders University and who was president -- 54 of 107 -- [2025] SADC 20 51 of the Flinders University Chinese Student Association and Charles (surname unknown) from Uni SA. 195 At the dinner, Mr Jin and the second respondent addressed the dinner guests. Mr Jin spoke of the need to enrol international students and that international students did not normally know how to vote properly. He referred to organising events where students would bring in their ballots so that they could be filled out by someone else so that their vote could be counted. He handed enrolment forms to some of the student leaders. In cross-examination, Mr Ong was referred to a statement that he made to the Electoral Commissioner when he stated that it was his assumption that the students would bring their ballots to the event and somehow they would fill them in and hand in those ballots. He said that he was more confident about his memory in the interview than he was now and it was a factor that he was not very sure about. He said that he was not very confident about Mr Jin saying anything about having people collect ballot papers on behalf of students. 196 The second respondent also addressed the meeting and said that he was interested in representing the Chinese community and that there was a large number of international students who did not vote and he wanted the support of the Chinese student community in electing him. 197 Mr Ong gave evidence that as he, Mr Wang, Mr Angelo Liang and Charles were leaving the restaurant with Mr James Wu, Mr Robert Wu and the second respondent, Mr James Wu said that “whoever got the most enrolment, the most votes, will be offered a job.” Mr Ong said that the second respondent referred to a saying in Chinese which says that whatever is said on the drinking table, stays on the drinking table, but that is not what is happening. Mr Ong was not able to say the saying in Mandarin, although he is proficient in Mandarin. In cross- examination, Mr Ong also said that the second respondent said something along the lines of “make sure it’s done”. Mr Ong said that he did not say anything. Mr Ong said that Mr James Wu had been drinking heavily at the dinner and was affected by alcohol. 198 Mr Ong said that at none of the subsequent dinners was the job offer discussed. This was the only occasion when the topic of the job offer was raised. It was also not raised in any written communications. Mr Ong gave evidence in cross-examination that it was not clear to him what job was on offer and no details were given about that job. Mr Ong said that he did not know how the figures as to the most enrolments and the most votes would be added together. 199 Mr Ong did not make any statement about the alleged bribe until he referred to it in his statement to the Electoral Commissioner which he made on 6 December 2022. Mr Ong said that he expressed his concern to Merlin Wang at the time and said that that does not sound right to him. He said that he told Mr Hyde about the bribe a few weeks later although not the detail of what was said. -- 55 of 107 -- [2025] SADC 20 52 200 A contravention of s 57 of the Elections Act is a criminal offence. The Briginshaw standard applies and the Court must be satisfied on the balance of probabilities that the bribe was offered. There are three issues that the Court must consider in this case in determining if there has been a contravention of s 57. They are (1) what words were said by Mr Wu and the second respondent; (2) do these words amount to an offer of a bribe; (3) was there a breach of s 57. 201 The petitioner submitted that the circumstances of the dinner and its purpose and the context in which the statement was made supported the contention that a bribe was offered. The petitioner also submitted that the Jones v Dunkel inference applied in that the second respondent did not call anyone who could be expected to give evidence. As to the latter submission, I disagree. The evidence as to what happened at the meeting is not in dispute. I have accepted the evidence as to what was said to Mr Ong at the end of the meeting. The evidence from the others in the small group, Mr Wang, Angelo and Charles would only be confirmatory of Mr Ong’s evidence and would not add to it. Insofar as Mr Ong did not give evidence about a matter (e.g. whether there was follow up on the alleged bribe), the Jones v Dunkel inference cannot be used to fill in a deficiency on the evidence. There was no evidence to suggest that Mr Wang, Angelo or Charles were in the second respondent’s camp such that they would be expected to be called by the second respondent to give evidence. 202 In relation to James Wu, there is some evidence to suggest that he is in the camp of the second respondent. James Wu was in the WeChat group chat with the second respondent. Some messages from that group chat are reproduced at Exhibit P38. In those messages, there is a discussion as to what address should be put down by the applicant for enrolment on the enrolment forms. That suggests that Mr Wu might be expected to be called by the second respondent, although the evidence of the relationship between the second respondent and Mr Wu does not extend beyond May 2022. However, what was said by Mr Wu in the conversation in which the alleged bribe was made is not in dispute but rather what was intended to be conveyed by Mr Wu and the second respondent. The failure of Mr Wu to give evidence cannot fill a deficiency in the evidence and in this case, the purpose or intent of what was said. In these circumstances, the rule in Jones v Dunkel has no application in relation to the failure of the second respondent to call Mr Wu. 203 There is no dispute that the meeting was held to support the candidacy of the second respondent and encourage the enrolment of voters. It was clear that the second respondent referred to the need to get international students to enrol. -- 56 of 107 -- [2025] SADC 20 53 204 Although the second respondent did not give evidence about this event and the Jones v Dunkel inference is available against him, it cannot be used to supplement a deficiency in the evidence that was adduced at trial. 205 I do not consider that the evidence given about the alleged bribe is sufficiently cogent for me to be satisfied on the balance of probabilities that the second respondent offered a bribe. 206 I am not satisfied that a bribe was offered for the following reasons. First, the assent of the second respondent rests on a Chinese idiom and the nuances associated with that idiom. Mr Ong was not able to say the idiom in Mandarin and therefore may not have been aware of subtle variations in meaning of the idiom. There were no clear words said by the second respondent that unequivocally conveyed that he was making the bribe. Secondly, the surrounding circumstances do not provide any confirmation that a bribe was offered. The bribe or the job offer was not mentioned again nor was there any evidence as to how it was to be determined who had obtained the most enrolments or most votes. Thirdly, Mr Ong was uncertain as to what was said by Mr Jin at the meeting about holding an event in which students would bring in their ballot papers. That uncertainty suggests that his memory about the meeting is uncertain. In the case of the alleged bribe, Mr Ong did not refer to the conversation until about 6 months later. Given the lack of clarity of the statements attributed to the second respondent, the Court cannot be confident of the accuracy of what was meant to be conveyed by the second respondent. Fourthly, I am not satisfied on the balance of probabilities that the statement made by Mr James Wu and the second respondent’s response constituted the offering of a bribe within the meaning of s 57 of the Elections Act. Mr James Wu was affected by alcohol at the time. The evidence as to the circumstances in which the alleged bribe was made suggest an impromptu statement by Mr Wu which was uncertain in its application (i.e. what was meant by the most enrolment, the most votes) and an equivocal response by the second respondent. I am not satisfied in these circumstances that the response of the second respondent was in fact to affirm a bribe. 207 The findings that I have made did not cause me to also find that Mr Ong was not a credible witness or was not reliable in respect of other matters in respect of which he gave evidence. It is the circumstances in which the conversation occurred and the nuances of that conversation which have led to the conclusion that I have made about the alleged bribe, rather than a rejection of the account of Mr Ong. The second respondent submitted that Mr Ong had developed a confirmation bias after he had been told by Mr Hyde about potential mass voter fraud. There is no evidence to support that submission and I do not consider it to be an inference that can be drawn from other evidence including the evidence that Mr Ong gave about the dinner at the Ancient Oriental. The fact that Mr Hyde on 14 November 2022 asked Mr Ong to cast his mind back to conversations that he might have had with the second respondent (because Mr Hyde was seeing his lawyers on that day) does not cause me to conclude that Mr Ong was swept up in some conspiracy against the second respondent and lost all objectivity. It is understandable that Mr Hyde -- 57 of 107 -- [2025] SADC 20 54 would be seeking to ensure that all relevant evidence that might support any claim that he might make was considered. 208 A further question arises as to whether the alleged bribe can amount to a contravention of s 57 of the Elections Act. This question is not strictly necessary to answer given my finding that the evidence was not sufficient for me to be satisfied that the second respondent offered a bribe or assented to a bribe that was offered by Mr Wu. Clearly, the offering of a job is a bribe for the purposes of s 57(3) of the Elections Act as it constitutes a material advantage to the recipient that is above the prescribed value. 209 The relevant questions that arise are: (1) was the bribe offered with a view to influencing the vote of a person at an election for the purposes of s 57(1)(b) of the Elections Act; and/or (2) was the bribe offered with a view to interfering with the due course of election for the purposes of s 57(1)(c) of the Elections Act. 210 Also relevant to the determination of these questions is s 72 of the Elections Act which provides that the entitlement to vote of a person whose name appears in the voters roll as an elector cannot be called into question by the Court. 211 The bribe (if it had been found to have been made) was directed at student leaders. It was made before the election period and before the second respondent had formally nominated as a candidate. It is not clear whether the alleged bribe was directed at the student leaders with a view to them seeking to encourage persons to be enrolled or to encourage persons to vote in favour of the second respondent at the election. I am not satisfied that it is the latter. In these circumstances, I do not consider that the alleged bribe was made with a view to influencing the vote of a person at an election. Encouraging persons to be enrolled does not in any way influence their vote at the election. The enrolment precedes the vote and occurs at an entirely different time. I accept the submission of senior counsel for the Electoral Commissioner that it is a question of fact as to whether an event that occurred outside of the election period (i.e. the time during which a vote may be cast), influenced the vote of a person at the election. In the present case, I do not consider that even if a bribe had been offered to the student leaders to encourage persons to be enrolled, that could be said to have been made with a view to influencing the vote of a person at the election. 212 The second question is whether the bribe (if made) was made with a view to interfering with the due course of an election for the purposes of s 57(1)(c) of the Elections Act. The due course of an election is not defined or clarified in the Elections Act. An election encompasses a number of distinct periods: (1) the enrolment of voters prior to the election period; (2) the nomination of candidates; -- 58 of 107 -- [2025] SADC 20 55 (3) the campaigning both before and during the period in which votes are cast; (4) the period in which postal votes are cast; (5) the counting of votes; (6) the declaring of the election. 213 In the 2022 Adelaide City Council elections, enrolment closed on 29 July 2022, the date for the nomination of candidates ended on 6 September 2022, voting took place from about 14 October 2022 to 10 November 2022 and the results were counted from 12 November 2022 and the results declared on 18 November 2022. An act committed prior to the voting period may interfere with the due course of an election if its effect continues into the election period. In this case, the bribe (if it occurred) was directed at the enrolment of voters. Under s 72, the enrolment of voters cannot be called into question by the Court. Further, s 73(1) provides that the Court cannot declare an election void on the ground of an illegal practice unless the Court is satisfied on the balance of probabilities that the result of the election was affected by the illegal practice. In the case of conduct involving the alleged contravention of s 57, the illegal practice is taken to have affected the result of the election unless the contrary is proved on the balance of probabilities. The fact that the enrolment cannot be called into question under s 73 suggests that the due course of an election is not concerned with the enrolment stage but is concerned with events after that date. If s 57 did apply to the enrolment, it is difficult to reconcile s 73(2) with s 72 in that s 73(2) casts an onus on a respondent to show that the election result was not affected by the enrolment whereas s 72 says that the enrolment cannot be called into question. 214 For the reasons that I have expressed, I am not satisfied that the petitioner has established that there has been a breach of s 57 of the Elections Act. I have reached this conclusion based on my findings of fact but also as a matter of law. 215 The petitioner made a further allegation in the petition that s 57 was contravened by the second respondent gifting expensive bottles of wine to staff of Belle Property, Adelaide City, with a view to influencing landlords or tenants to register as voters in the Central Ward. Senior counsel for the petitioner properly acknowledged that there was no evidence supporting that allegation. The petitioner made no submissions in relation to the allegation. 216 In those circumstances, the petitioner has not established that alleged breach. Determination of the allegations in the petition of persons acting on behalf of the second respondent as an assistant to a person voting in the election - s 61(1) of the Elections Act 217 Section 61 of the Elections Act provides: -- 59 of 107 -- [2025] SADC 20 56 (1) A person who is a candidate for election or acting on behalf of such a candidate (whether with or without the candidate's authority) must not act as an assistant to a person voting at the election. Maximum penalty: $5 000 or imprisonment for one year. … (3) Without limiting the generality of subsection (1) or (2), a person acts as an assistant by assisting another to obtain, complete or return postal voting papers. (4) … 218 The petitioner in his petition alleges that persons acted as an assistant to a person voting at an election. The petitioner relied upon some matters that could be proved only by circumstantial evidence and some matters that were provided by direct evidence. Again, given the nature of these allegations, the Briginshaw standard applies. The matters relied upon by the petitioner were: (1) between 14 October 2022 and 22 October 2022 voting packs were sent to residences of electors; (2) on about 15 or 16 October 2022, many voter packs remained unopened in letterboxes at specified apartment buildings in the Central Ward; (3) at some time prior to 18 October 2022, a message was written in WeChat to occupants of Vision which said “I believe you have received your ballot papers. Let’s all work together to support Jing Li. I am coming to your building on Tuesday 18 October 2022 at 7 pm to pick up the ballots”; (4) on dates thereafter, persons acting on behalf of the second respondent took possession of voter packs from specified apartment buildings by taking them from the letterboxes and keeping them. On 27 October 2022, 2 men were seen outside Vision on Morphett apartment building handling a number of voter packs. On 27 October 2022, Mr William Bai and Mr Keith Jin, the second respondent’s agent and election campaign team member, were in the vicinity of Vision on Morphett handling a large stack of opened voter packs and Mr Bai handed unfilled voter packs to Mr Jin. 219 There is no dispute that voter packs were sent to electors in the period between about 14 October 2022 to 22 October 2022. Evidence about Visiting Apartments 220 I have accepted the evidence of Mr Hou and Mr Hyde that when they visited apartment buildings on the part of their campaigning on about 14 October 2022 and observed that many letterboxes contained ballot papers. That is what would be expected given that the voting packs were posted at that time. I have also accepted -- 60 of 107 -- [2025] SADC 20 57 the evidence of Mr Hou and Mr Hyde that when they returned to the apartment building about a week later, they observed that many of the ballot papers had been taken from the letterboxes. 221 However, I do not consider this fact, even in combination with other facts, supports an inference being drawn that persons acted on behalf of the second respondent as an assistant to a person voting in an election by removing ballot papers from letterboxes . The observations made by Mr Hyde and Mr Hou are consistent with the owners of the letterboxes removing ballot papers and do not support an inference being drawn that they were taken improperly by a person acting on behalf of the second respondent. The evidence of Mr Hyde and Mr Hou on this issue is vague and amounts to an impression of what material was removed and what material remained in the letterboxes. 222 Mr Hou gave evidence that there were green envelopes in the letterboxes that were removed. It is unclear to what envelopes Mr Hou was referring to. The ballot papers for the Central Ward (which are contained inside the voting pack) are placed, when completed, in a green envelope but it is unlikely that Mr Hou was referring to these envelopes. The ballot papers themselves are placed in the blue green envelope (Exhibit 1R8) and it is likely that Mr Hou was referring to those envelopes but it is not clear. 223 In all of the circumstances described above, I do not place any weight on the observations made by Mr Hyde and Mr Hou about the contents of the letterboxes. Evidence about WeChat Message 224 The petition also placed reliance on the WeChat message sent prior to 18 October 2022. That message is referred to in the email from Mr Hyde to the Electoral Commissioner dated 25 October 2022 (Exhibit P26). However, Mr Hyde had not seen the WeChat message. It was at least second hand hearsay as Mr Hyde was told about the email from a colleague (Mr Hou) who was told by an international student. The WeChat message lacks cogency. It had been sent to Mr Hou and recalled. Mr Hou did not identify the person who sent the message. It would be unfair on the second respondent to have to answer that evidence given its lack of clarity and unidentified source. In accordance with the principles set out in Pochi, I do not place any weight on that evidence. 225 The evidence from Mr Hou does not take the matter any further. Mr Hou gave evidence about the substance of the message as set out above. Mr Hou said that he did not know where the original message came from but that it was a screenshot when a third party received the message and that was sent as a screenshot by that third party to Mr Hou but quickly recalled. Mr Hou declined to identify the third party. Mr Hou said that the screenshot did not make reference to any particular candidate. In these circumstances, the evidence given by Mr Hou lacks cogency. It does not identify the source of the message which appears to be at least secondary hearsay. The evidence does not identify any candidate or any person who is said to be the person who is collecting the ballot papers. It would be -- 61 of 107 -- [2025] SADC 20 58 unfair to the second respondent to admit the evidence as it would be impossible to address it given its lack of clarity. I therefore place no reliance on this evidence. Evidence about Photographs in Exhibit P7 taken on 27 October 2022 226 I have found that Exhibit P7 shows two persons holding 5 ballot papers. I have accepted Mr Hou’s evidence about the circumstances in which this photograph was taken. I have found that the ballot papers were ballot papers of the City of Adelaide and specifically in relation to the Central Ward. I have also accepted the evidence of Mr Ong that he had a conversation with Mr Trinity Zhang in which Mr Zhang said that the person in the blue jumper in Exhibit P7 was on the second respondent’s campaign team. I have found that evidence to be admissible and cogent and logically probative evidence relating to the identity and role of the person in the blue jumper in Exhibit P7. 227 It is not possible to make any finding as to whether the person in the blue jumper was acting with or without the authority of the second respondent when he received the ballot papers from the other person. Although there was some evidence to which reference has been made of WeChat messages between Mr Zhang and the second respondent which suggested that the second respondent knew that ballot papers were being collected under his name, this evidence was general and did not specifically relate to the persons in Exhibit P7. However, acting with authority is not necessary for the purposes of establishing a contravention of s 61(1). What must be established is that: (1) the person was acting on behalf of the candidate (with or without authority); (2) the person was acting as an assistant to a person voting at the election by assisting another to obtain, compete or return ballot papers. 228 Counsel for the second respondent submitted that the only possible inference that was available to the Court was that the two men were in possession of Adelaide City Council Central Ward ballot papers but no more. I do not accept that submission given that the finding that the person in the blue jumper was on the campaign team of the second respondent. It is inherently unlikely that two persons were discussing ballot papers that were legitimately in their possession. There would be no reason to have that discussion, let alone in public at the front of an apartment. There could be no reason to pass the ballot papers from one person to the other. It follows that further inferences can be made beyond the limited inference suggested by the second respondent. 229 I consider that the inference from the evidence was that the person in the blue jumper was acting on behalf of the second respondent when he received the ballot papers from the person in the black jacket. The inference is also made that the person in the black jacket was also acting on behalf of the second respondent during the interaction with person in the blue jumper. The evidence upon which I rely in drawing these inferences is that the person in the blue jumper was on the -- 62 of 107 -- [2025] SADC 20 59 campaign team for the second respondent, he was receiving ballot papers from another person outside an apartment block in the Central Ward, he was checking the detail of the ballot papers. The person in the blue jumper was self-evidently not reviewing ballot papers that were his own or to which he had any entitlement. Given that the evidence showed that he had a relationship with the second respondent by being on his campaign team, the more probable inference from this evidence was that he received the ballot papers when acting on behalf of the second respondent. The person in the back jacket was working with the person in the blue jumper in handing over the ballot papers. Mr Zhang recognised the person in the black jacket. The more probable inference from this evidence is that the person in the black jacket was also acting on behalf of the second respondent. 230 I consider that the rule in Jones v Dunkel applies in that the second respondent did not give evidence denying that the person in the blue jumper or the black jacket was on his campaign team or were acting on his behalf. I can be more confident in accepting the evidence of Mr Ong because the second respondent did not give evidence. 231 I also find that the person in the blue jumper and the person in the black jacket were acting as an assistant to a person voting at the election. A person acts as an assistant by assisting another to obtain, complete or return voting papers. In this case, the photograph of the person in the blue jumper shows that he is taking possession of the voting papers and reviewing them. The person in the black jacket appears to be handing the ballot papers to the person in the blue jumper. The more probable inference from the photograph and the evidence that both persons were acting on behalf of the second respondent, is that having obtained possession of the ballot papers, they were assisting by returning the voting papers to the returning officer and checking that the votes were cast in favour of the second respondent. The photographs show that one of the ballot papers was opened. The inference can be drawn that the other ballot papers were also being checked by the person in the blue jumper and had been or were to be opened. Evidence relating to Mr Bai and Mr Jin at the Stonemill Restaurant on 27 October 2022 232 In relation to the evidence given by Mr Hou about his observations of Mr Bai and Mr Jin at the Stonemill Restaurant in front of the Vision on Morphett Apartments, I have accepted Mr Hou’s evidence that the ballot papers were ballot papers of the City of Adelaide and specifically in relation to the Central Ward. I have also found that Mr Jin had ten ballot papers in his hand and that he had been given the ballot papers by Mr Bai. I have also found that Mr Jin was on the campaign team of the second respondent and was acting on behalf of the second respondent during the course of the election. 233 It is not possible to make any finding as to whether Mr Jin was acting with or without the authority of the second respondent when he received the ballot papers from Mr Bai. -- 63 of 107 -- [2025] SADC 20 60 234 The Electoral Commissioner submitted that there was insufficient evidence to conclude that the ballot papers held by Mr Jin and Mr Bai were ballot papers for the election for the Central Ward and not ballot papers to which Mr Bai was personally entitled to possess. 235 I have already found that Mr Bai was handing to Mr Jin ballot papers for the Central Ward election and that they were not company ballot papers which he was entitled to possess. 236 The inference from the evidence of Mr Hou was that Mr Jin was acting on behalf of the second respondent when he received the ballot papers from Mr Bai. The evidence upon which I rely to draw that inference is that Mr Jin was on the campaign team of the second respondent, the evidence of Mr Hou that he saw Mr Bai passing ballot papers to him outside an apartment building in the Central Ward and the evidence that Mr Bai had assisted the second respondent during the course of the enrolment process. The more probable inference from the evidence was that the capacity in which Mr Jin received the ballot papers was on behalf of the second respondent. There is no evidence that Mr Jin acted for any other candidate. There is no evidence that suggests that Mr Jin was entitled to the ballot papers in his own right. The circumstances in which the ballot papers were given to Mr Jin discounts that possibility. 237 The second respondent submitted that the fact that Mr Jin was a supporter of the second respondent did not mean that on every occasion that Mr Jin did something during the course of the election campaign period, he was acting on behalf of the second respondent because that would impose criminal responsibility for every such act. That proposition can be accepted. However, the collection of ballots and their return for counting are acts central to the voting process. Mr Jin is not undertaking those acts on his own behalf. The clear inference from his involvement in the election process is that he did those acts on behalf of the second respondent. 238 I also find that Mr Jin was acting as an assistant to a person voting at the election. In this case, Mr Jin was taking possession of the voting papers. He was doing so to submit them to the returning officer. There is no other reason why he would obtain possession of the ballot papers. He therefore is assisting persons voting at an election by collecting the ballot papers, reviewing them and submitting them to the returning officer. 239 I have already found that Mr Bai was acting on behalf of the second respondent during the course of the election. He was so acting when he handed the ballot papers to Mr Jin. Mr Bai had no personal interest in the election. The inference from the evidence of Mr Hou is that Mr Bai and Mr Jin were working together in their dealing with the ballot papers witnessed by Mr Hou. I have found that Mr Jin was collecting ballot papers on behalf of the second respondent to submit to the returning officer. The inference arises that Mr Bai was acting as an assistant to a person voting in the election by first collecting ballot papers and then -- 64 of 107 -- [2025] SADC 20 61 passing them to Mr Jin so that the ballot papers could be sent by Mr Jin to the returning officer. 240 I consider that the rule in Jones v Dunkel rule applies in that the second respondent and Mr Jin did not give evidence. I can be more confident in making the inferences because of this fact. 241 The actions of Mr Jin and Mr Bai constitute a breach of s 61(1) of the Elections Act. Findings concerning Contraventions of s 61(1) 242 I therefore find there has been a contravention of s 61(1) of the Elections Act in by the persons in the black jacket and blue jumper shown in Exhibit P7 handling the 5 ballot papers and also by Mr Bai and Mr Jin handling the 10 ballot papers at the Stonemill Restaurant. 243 The petitioner further submitted that the Court find that there had been widespread breaches of s 61(1). That was the inference, it was submitted, that should be made from the findings of the breaches that occurred on 27 October 2022 (being the breach constituted by Exhibit P7 and the further breach relating to Mr Jin and Mr Bai). Paragraph 5.c of the petition pleads that s 61(1) was contravened by reason of the matters set out in sub-paragraphs 5.c.1-5.c.iv. There is no wider plea. Therefore, I am not prepared to make any wider finding regarding a breach of s 61(1). Determination of allegations in the petition of a person acting on behalf of the second respondent having in their possession postal voting papers for the election contrary to s 61(4) of the Elections Act 244 Section 61(4) of the Elections Act provides: (1)-(3)… (4) A person who is a candidate for election or acting on behalf of such a candidate (whether with or without the candidate's authority) must not have in his or her possession, or attempt to gain possession of, postal voting papers for that election (except any such papers issued to the person as an elector in his or her own right). Maximum penalty: $5 000 or imprisonment for one year. 245 The petitioner alleged that between 14 October 2022 and 10 November 2022, persons acting on behalf of the second respondent (with or without his authority) had in their possession or attempted to gain possession of postal voting papers in contravention of s 61(4) of the Elections Act. The Briginshaw standards applies when determining whether the petitioner has made out these allegations. The matters pleaded in support of this allegation include the matters pleaded in support of the contravention of s 61(1) plus the following additional matters: -- 65 of 107 -- [2025] SADC 20 62 (1) On 25 May 2022, a message was sent by WeChat by the second respondent to supporters, when completing enrolment applications, to record as their postal address an address in the possession or control of the second respondent being a different postal address than that of the person being enrolled; (2) In October and November 2022, Mr Trinity Zhang, an associate and supporter of the second respondent, acting on behalf of and in concert with the second respondent, collected unfilled Voter Packs from student apartments including the Central Adelaide Apartments in Grote Street Adelaide; (3) On 3 November 2022, two international students of Chinese appearance, acting on behalf of the second respondent, attended at a student apartment on Grote Street Adelaide requesting that the occupant provide to them the unfilled Voter Pack that had been sent to the apartment address; (4) In about November 2022, Miranda Li approached a landlord requesting that they provide their unfilled ballot papers to her, on behalf of the second respondent. 246 I will first address these additional matters. 25 May 2022 WeChat Message 247 The 25 May 2022 WeChat message is contained in a series of messages dealing with actions taken by the second respondent to enrol voters on the electoral roll (Exhibit P39). Mr Ma was in the message group. This message and the enrolment therefore preceded the voting period which commenced on about 14 October 2022. The messages therefore are not direct evidence of a contravention of s 61(4) but are relied upon as circumstantial evidence. The message relied upon must be read in the context of the whole message chain but in particular in the context of the following messages: Vincent Weng. Should I put the address you gave me as the postal address? Second respondent: No. No. Put their own addresses there. This way the ballot papers will be sent to them. For a student: residential address, postal address and ballot paper address, all three are completely the same. Vincent Weng: But let’s say we have 20 people and they all have my address as their postal address, would this be a problem. Second respondent: we won’t force them if they don’t want to. … -- 66 of 107 -- [2025] SADC 20 63 Second respondent: if the students are reliable, put their own address and they can return the ballot when they receive it. This would be the most compliant way. James Wu: for the reliable ones, get them to return the ballots. For those that may not be so reliable, they can authorise Vincent to do it. Then, they are both covered. Second Respondent: Yup. Put down @W’s address then. It won’t be a problem as long as the students don’t object to this. They send the ballot papers over by their own will. Vincent Weng: The simplest way is to put down your address(es) pass them onto me once you have received them. I then get them to fill those. Second Respondent: Okay. That ‘ll work too. Vincent Weng: Give me a postal address then. Second Respondent: Hold on. Let me provide it. Tenant 1, 176 Franklin St, Adelaide SA 5000. 248 These messages, it was submitted by the petitioner, constitutes evidence that it was the intention of the second respondent or Mr Weng (at least as at 25 May 2022), to obtain possession of ballot papers. 249 Mr Sherry gave evidence that only one ballot paper was posted out to 1/176 Franklin Street, Adelaide. The further documents that were tendered on the reopening showed that 8 residents nominated the address 1/176 Franklin Street Adelaide as their postal address (Re-opening Tender Book, (RTB)page 905-912, Exhibit P67 and these enrolments forms were forwarded by the second respondent to the City of Adelaide by email dated 10 July 2022 (p 868 of RTB, Exhibit P67). Ming Zhang witnessed each of the applications for enrolment. 250 The second respondent submitted that these messages when read as a whole showed that he was not attempting to obtain ballot papers, using this address. 251 I do not consider that this evidence supports an inference that the second respondent had in his possession or attempted to gain possession of voting papers. In the WeChat messages, the second respondent initially said that the postal address should be the same as the residential address. It was only when pressed, that he provided a different postal address of 1/176 Franklin Street, Adelaide. One message does suggest that he will pass on ballot papers when he received them to Mr Weng who will get the voters to complete the ballot. That would be a contravention of the Elections Act by Mr Weng. Ultimately, however only one ballot paper was sent to the nominated address which suggests that the nomination of the postal address was not part of a scheme to falsely complete ballot papers. 252 I reject the submission of the petitioner that the evidence supports the evidence of Mr Ong that a bribe was offered at the dinner at the Ancient Oriental. The evidence contained in Exhibit P39 does not relate to a bribe. It deals with an entirely different topic, namely how enrolment forms might be completed. -- 67 of 107 -- [2025] SADC 20 64 Evidence relation to Mr Zhang collecting Unfilled Ballot Papers 253 I have already found that Mr Trinity Zhang collected unfilled ballot papers from student apartments especially in the Realm apartment by knocking on student’s doors to collect unfilled ballot papers. Some of the documents discovered by the second respondent on the re-opening show an active involvement by Mr Zhang in the campaign of the second respondent. For example, on 17 October 2022, the second respondent sent Mr Zhang a message that someone is pretending to be one of us and is collecting ballots under his name, please inform everyone. Mr Zhang replies that he will try to inform everyone. Throughout the election period, Mr Zhang and the second respondent correspond about matters relating to the election and Mr Zhang undertakes campaign tasks. 254 In these circumstances, I find that Mr Zhang was acting on behalf of the second respondent when he had possession of the unfilled ballot papers. The more probable inference, given the evidence about his campaigning for the second respondent, is that when Mr Zhang knocked on the doors of students to collect unfilled ballot papers, he was doing so on behalf of the second respondent and was acting for the second respondent. Mr Zhang did not have any entitlement to those ballot papers. I am not able to make any finding as to whether he did so with the authority of the second respondent, but that is not necessary for there to be a contravention of s 61(4) by Mr Zhang. There was evidence, as previously discussed, that the second respondent knew that ballot papers were being collected under his name. The evidence does not establish that the second respondent knew that Mr Zhang was collecting unfilled ballot papers. 255 It is not possible to make a finding about the precise number of ballot papers that Mr Zhang had in his possession other than to find that there were a number of ballot papers. Evidence of the Involvement of Two International Students 256 As to the allegation that two international students attended a student apartment building on Grote Street requesting that they be provided with unfilled voter packs, there was no evidence supporting that allegation. That allegation has not been made out. Evidence in relation to Ms Mirandi Li approaching a landlord for a vote 257 The allegation that Ms Miranda Li, on behalf of the second respondent, approached a landlord requesting that he provide an unfilled ballot paper to her, relies upon WeChat messages between Ms Li and Mr Tian Par Lim (Exhibit P20). In these messages, Ms Li asked whether Mr Lim had voted and Mr Lim said that he had already voted. She then asked could he give her friend some and asked who he voted for. He said “just the Chinese candidates.” 258 I do not place any weight on this evidence. It is unclear whether Ms Li is referring to votes or a voting pack. It cannot be said that the more probable -- 68 of 107 -- [2025] SADC 20 65 inference from this evidence was that Ms Li, on behalf of the second respondent, was seeking to obtain ballot papers from Mr Lim. Evidence relating to Exhibit P7 and Mr Bai and Mr Jin 259 I have already addressed the evidence that the petitioner also relied upon in relation to the plea that persons acted as an assistant to a person voting in contravention of s 61(1) of the Elections Act. The findings that I have made about the two persons photographed outside of the Vision on Morphett Apartments on 27 October 2022 handling ballot papers (Exhibit P7) and Mr Bai and Mr Jin also handling ballot papers, also lead to a finding that those persons, acting on behalf of the second respondent, had in their possession postal voting papers in contravention of s 61(4) of the Elections Act. Neither the persons in Exhibit P7 or Mr Jin or Mr Bai had any entitlement to those papers. Summary of Findings about Contraventions of s 61(4) 260 By way of summary, I find that: (1) The two persons in Exhibit P7 when they had 5 ballot papers in their possession on 27 October 2022 outside the Vision of Morphett Apartments; (2) Mr Bai and Mr Jin when they had 10 ballot papers in their possession on 27 October 2022 at the Stonemill Restaurant; (3) Mr Zhang when he collected an unspecified number of ballot papers from student apartments, were persons acting on behalf of the second respondent, who had in their possession postal voting papers to which they had no entitlement in contravention of s 61(4) of the Elections Act. Determination of allegations in the petition of knowingly making a misleading or false declaration on voting papers in a material respect or marking a ballot paper to which they were not entitled to mark or dishonestly exercising a vote to which they were not entitled-ss 64(1), s 64(2) and 58(1) of the Elections Act Overview of the Allegations in the Petition 261 Section 58 of the Elections Act provides: (1) A person who dishonestly exercises, or attempts to exercise, a vote at an election or poll to which that person is not entitled is guilty of an offence. 262 Section 64 of the Elections Act provides: (1) A person must not make a statement in a claim, application, return or declaration, or in answer to a question, under this Act that is, to the person's knowledge, false or misleading in a material respect. Maximum penalty: $5 000 or imprisonment for one year. -- 69 of 107 -- [2025] SADC 20 66 (2) Except as authorised by this Act, a person (not being a person to whom the ballot paper has been lawfully issued) must not mark a vote, or make any other mark or writing on a ballot paper. Maximum penalty: $2 500 or imprisonment for six months. 263 The petitioner has pleaded breaches of ss 58(1), 64(1) and 64(2) and relies upon the same allegations in relation to each of these alleged contraventions. Those allegations are that: (1) In respect of the persons numbered 1-27 of Appendix A to the petition, the signature on the statement in the declaration on the envelope of the voting papers was sufficiently dissimilar from the signature on the application for enrolment for the same named person, such that they were not the signature of the same person or alternatively that the signature on the envelope or alternatively on the application for enrolment was not the signature of the person named on the envelope; (2) In respect of the persons numbered 28-73 of Appendix A, the signature on the envelope was fundamentally different from the signature on the application for enrolment for the same named person, such that they were not the signature of the same person or alternatively that the signature on the enrolment or alternatively on the application for enrolment, was not the signature of the person named on the envelope; (3) In the premises, in each case, a person forged a signature on the envelope of the person to whom the ballot paper had been issued and therefore falsely declared that he or she was the person named on the envelope and that the ballot papers enclosed in the envelope were his or her vote; (4) Alternatively, in the premises in each case, a person forged a signature on the application for enrolment and thereby falsely declared that he or she was the person named on the application for enrolment; (5) The fact of the illegal practices referred to in paragraphs 5.c.1 to 5.c.v of the petition gave rise to the inference that further forgeries occurred. 264 The petitioner relies upon the handwriting report of Mr Hobden (which refers to the earlier report of Mr McGinn) to support these allegations. There are also some circumstantial facts relied upon by the petitioner from which the petitioner asks the Court to draw the inference that the person who signed the first document is not the person who signed the second document. Given the nature of the alleged contraventions, the Briginshaw standard applies. 265 I accept the evidence of Mr Hobden. He was a well-qualified expert who made appropriate concessions. He was aware of and set out the limits of any opinions that he expressed. Mr McGinn, for health reasons, was not able to give evidence. The report of Mr Hobden was based on the report of Mr McGinn. -- 70 of 107 -- [2025] SADC 20 67 However, I place no weight on the report of Mr McGinn given that he was not able to give evidence and that the petitioner had engaged Mr Hobden to produce, what in effect, was a substitute report. 266 The Electoral Commissioner relied upon the expert report of Ms Holt. Her report primarily addressed the report that had been written by Mr McGinn which was the report that was then being used by the petitioner. However, the opinions that she expressed and the evidence that she gave is also relevant to the evidence of Mr Hobden. Ms Holt was a well-qualified expert who gave her evidence as an expert should. Ms Holt had not herself undertaken a full and complete examination of the documents but rather her report focused on the methodology of Mr McGinn and Mr Hobden and their conclusions. The Experts’ Reports and Evidence 267 Mr Hobden was given 118 pairs of signatures from persons who voted at the election: one signature was on the application for enrolment of the voter and one signature on the envelope on which the voter made a declaration when voting. Therefore, Mr Hobden examined 236 signatures in total. In the case of one voter, the relevant two documents were not a pair in that the person signing the enrolment form was different from the person signing the declaration on the envelope. Relevantly, therefore, Mr Hobden compared 117 pairs of votes. Mr Hobden expressed opinions about the signatures on the application form and declaration in respect of each voter and also whether the handwriting on the application form (including both the details of the applicant and the details of the witness) was completed by the same writer. Evidence as to Signatures 268 As to the signatures, Mr Hobden expressed general agreement with the opinions of Mr McGinn but set out his own opinions in his report. Mr Hobden conducted his own assessment of the signatures. 269 He stated that he was not able to give an opinion as to authorship because there was only the specimen signature and the questioned signature. He said that to provide an opinion as to authorship required a larger specimen size than one signature on the application form and one on the declaration. He said that the literature often referred to 11 or 12 signatures being required to make such an opinion but on occasion, less was sufficient. He said that having only two signatures was an extreme limitation and undermined his inability to give an opinion as to authorship. Mr Hobden agreed that he was pointing out and expressing opinions about similarities and dissimilarities but not going beyond that. 270 Ms Holt agreed that care needed to be exercised where there were only two questioned signatures and that a conclusion as to authorship by a particular person required a range of signatures of ideally about 15-20 signatures. Ms Holt said that -- 71 of 107 -- [2025] SADC 20 68 when there were only one specimen and one questioned signature, there was an inherent risk of error in expressing an opinion as to authorship. 271 In relation to signatures, Mr Hobden expressed the following opinions: • On 7 occasions, there were no basis for comparison as the signature on the application form was printed and the signature on the declaration was handwritten; • On 46 occasions, there was no basis for detailed comparison because the features of the signature on the declaration were not comparable to the signatures on the application form. These are the persons numbered 28-73 of Appendix A to the petition; • On 13 occasions, there were some features on the signature on the declaration that were comparable and similar to the features on the signature on the application form; • On 27 occasions, there were features on the declaration that were comparable but dissimilar when compared to the signatures on the corresponding application form. These are the persons numbered 1-27 of Appendix A to the petition; • On 24 occasions, there were features on the declaration that were somewhat comparable but not sufficiently similar or dissimilar to determine if they are the same signature as the signature on the application form. 272 It is clear from the evidence of both Mr Hobden and Ms Holt that no finding as to authorship can be made solely from the handwriting analysis of the signatures. Having only a pair of signatures is insufficient to make such a finding. The findings made by Mr Hobden, coupled with further circumstantial evidence, may permit the court to make a finding that there had been a false declaration. However, where there is no other evidence beyond the report of Mr Hobden, then there is not a sufficient basis to make a finding. Further Circumstantial Evidence Concerning Persons Numbered 1-27 in Appendix A 273 In his report, Mr Hobden said that in respect of the first 27 persons named in Appendix A to the petition, there was a lack of support for the proposition that the signature on the application form was the same signature as the signature on the declaration. Mr Hobden says that this conclusion raised a red flag but could not go further to express an opinion about authorship or genuineness of the signature. He said that some other evidentiary process would have to be undertaken by the Court to reach a conclusion. Ms Holt said that the potential differences in relation to a number of the persons could potentially arise because of variation. -- 72 of 107 -- [2025] SADC 20 69 274 As one item of circumstantial evidence, Mr Hobden referred to the signatures of Mr Trinity Zhang who witnessed 5 applications for enrolment. Mr Hobden said that two of the five signatures were not similar to the remaining three. Mr Hobden said that one of the signatures was in Chinese characters (when the others were not) but one signature, number 17 in Appendix A, appeared different. 275 There was further evidence in relation to the persons numbered 1-27 in Appendix A, namely: (1) Three persons confirmed in the investigation by the Electoral Commissioner that they had completed the ballot paper (Zoe Liu, Ding Yi Shi and Yinghao Zhu numbers 12, 18 and 27 respectively). I therefore do not consider that the allegations in the petition in respect of those persons are made out; (2) There was also 5 persons in respect of whom there was moderate support for the proposition that most of the handwriting in the “applicant details section” and the “witness details section” of the application form were written by the same writer. Those were persons numbered 1, 3, 7, 16 and 19 of Appendix A (Hao He, Prakriti Sharma, Yizhen Li, Srishti Sharma and Nicholas Toh); (3) There were also a further 4 persons in respect of whom there was moderate support for the proposition that some of the handwriting in the applicant details and witness details sections of the application form were written by the same writer and others by a different writer or writers. Those were persons numbered 4, 5, 6 and 24 of Appendix A of the petition (Thuy Ngan Le, Hou Lam Leong, Jia Peng Li, and Lyu Yukun); (4) There were 3 persons in respect of whom the date upon which the witness signed the application for enrolment differed from the date upon which the applicant signed the application form. Those were persons numbered 6, 14 and 22 of Appendix A (Jia Peng Li, Yunhui Niu and Zongze Yu). The application forms of Jia Peng Li and Zongze Yu were submitted by the second respondent; (5) There were 3 persons in respect of whom the dates of birth on the declaration form did not correspond to the date of birth on the application for enrolment. Those were persons numbered 10, 21 and 26 of Appendix A (Jia Hui Liu, Weiqin Yang and Jingchun Zhou). The application form of Weiqin Yang was submitted by the second respondent; (6) There were two persons whose signatures on the enrolment application were witnessed by Trinity Zhang. They were numbers 11 and 17 of Appendix A (Zhao Meng Liu and Lei Shen). In respect of Lei Shen, -- 73 of 107 -- [2025] SADC 20 70 Mr Hobden said that the signatures differed from the other signatures of Mr Trinity Zhang although he was not expressing an opinion as to authorship. (7) The circumstances relating to the re-issue of 4 ballot papers to 13 East Street Magill, one of which was Jia Peng Li (number 6 of Appendix A). On 27 October 2022, Chang Cai, Yuze Chen, Su Chang Liu and Jia Peng Li applied for their ballot papers to be sent to 13 East Street Magill due to a change of address recently, stating that they were roommates (Exhibit P81, p 1942 RTB). Each of them gave the same reason for the re-issue of the election material, namely that the original material was destroyed or lost (Exhibit P82, p 1943-1946 of the RTB). Each of them signed the initial application for enrolment in English script and the declaration on the ballot paper envelope and the request for re-issue in Chinese script (pages 1018-1021 of the RTB and 4535 4538, 4538-40 of RTB). Each of the applications for enrolment included the same postal address, namely 33B Kimber Terrace, Kurralta Park. Their enrolment forms referred to an address for enrolment at an apartment building at Gray Street Adelaide and were witnessed by the same person, Meishi Xia. There appeared to be some differences in the Chinese script between the declarations on the voting envelopes and the request for the re-issue of voting material, but in the absence of specific evidence, including expert evidence, about these documents, I am not prepared to make any finding about that matter. Further Circumstantial Evidence in relation to Persons Concerning Persons Numbered 28-73 of the Petition 276 In his report, Mr Hobden said that in respect of the 46 persons named in Appendix A to the petition from numbers 28-73, there was “No Basis for Detailed Comparison” between the signature on the application form and the signature on the declaration. Mr Hobden says that this conclusion raised a red flag but could not go further to express an opinion about authorship. He said it would be unsafe to do so. In such a case, circumstantial evidence, in conjunction with the opinion expressed by Mr Hobden, may permit the court to find that the alleged contraventions had occurred. Again, Mr Hobden said that further evidentiary process would need to be undertaken before any conclusion could be reached. Mr Hobden agreed that all he could do was observe similarities and dissimilarities. He did not use or embrace the term fundamental difference. Ms Holt said that the term “fundamental difference” in the context of forensic handwriting could not be made unless a conclusion was reached that there was a repeated difference in the questioned material. Mr Hobden accepted in cross-examination, that he was expressing an opinion as to similarities and dissimilarities and did not feel the need to add the word “fundamental” when describing a dissimilarity. 277 In respect of the 46 voters which were grouped in the category “No Basis for Detailed Comparison”, in about 38 instances, no comparison could be made -- 74 of 107 -- [2025] SADC 20 71 because one signature was in Roman script and the other in Chinese. That fact is not sufficient, by itself, to lead to any conclusion as to authorship or genuineness. However, it may be a circumstantial fact, which with other facts, leads to an inference being drawn about the particular declarations. In this context, I take into account the evidence from Mr Hobden that while he agreed that writers may interchange two different signatures styles at will, his experience with the habit of Asian script writers who had both a Roman script signature and an Asian script signature, was that there was less usage of different versions of the signature where the nature and script of the document was similar. 278 There were also 7 occasions in which there was no basis for comparison because one of the signatures was a printed signature. That, Mr Hobden said, was a difference or dissimilarity. He said that this was a mismatch, that being a value- neutral term. 279 Further: (1) Four persons confirmed in the investigation by the Electoral Commissioner that they had completed the ballot paper (numbers 28, 44, 45 and 72; Nalinbaoran, Li Ke, Siu Ping Lau and Yunsheng Zhang). I therefore do not consider that the allegations in the petition in respect of those persons are made out; (2) There were 11 persons in respect of whom there was moderate support for the proposition that most of the applicant details and the witness details handwriting in the application form were written by the same writer. Those were persons numbered 31, 34, 37, 45, 46, 47, 57, 58, 63, 67 and 72 of Appendix A (Ji Jin Chen, Tin Nam Choi, Jingyi Han, Siu Ping Lau, Chun Ho Lee, Sau Yee Li, Kuo Wang, Shan Rong Wang, Tianqi Yan, Lee Ka Yik and Yunsheng Zhang); (3) There were also a further 7 persons in respect of whom there was moderate support for the proposition that some of the applicant details and witness details handwriting in the application form were written by the same writer and others by a different writer or writers. Those were persons numbered 30, 35, 50, 51, 52, 66 and 73 Appendix A of the petition (Chang Cai, Hongru Gu, Su Chang Liu, Xiao Chuan Liu, Yaye Liu , Lin Yang and Yaqian Zhou); (4) There were 3 persons in respect of whom the date upon which the witness signed the application for enrolment differed from the date upon which the applicant signed the application. Those were persons numbered 30, 50 and 71 of Appendix A (Chang Cia, Su Chang Liu and Hengbo Zhang). The application forms of each of those persons were submitted by the second respondent; -- 75 of 107 -- [2025] SADC 20 72 (5) There were 8 persons in respect of whom the dates of birth on the declaration form did not correspond to the date of birth on the application for enrolment. Those were persons numbered 29, 38, 52, 55, 62, 68, 69 and 71 of Appendix A (Songchen Bi, Yuxiong Han, Yaye Liu, Melvin Ting, Hang Xue, Jin Yu Yon, Jialin Yu and Hengbo Zhang). The application forms of all of those persons except for Jin Yu Yon were submitted by the second respondent; (6) There was one person whose signature on the enrolment application was witnessed by Trinity Zhang where the signature of Mr Zhang differed from his other signatures in that his name was signed in Chinese and not Roman script. This was number 71 of Appendix A (Hengbo Zhang) The application form of Mr Hengbo Zhang was submitted by the second respondent; (7) There were 2 persons Chang Chai and Su Chang Liu (numbers 30 and 50 respectively of Appendix A) who applied for re-issue of their ballot papers to 13 East Street, Magill in the circumstances which I have previously described. Evidence in Relation to Handwriting on the Enrolment Forms 280 In the case of the handwriting on the enrolment forms, Mr Hobden expressed the following conclusions: (1) On 21 occasions, there was moderate support for the proposition that most of the applicant details and the witness details handwriting were written by the same person; (2) On 21 occasions, there was moderate support for the proposition that some of the applicant details and the witness details handwriting were written by the same person and the others by a different person or different persons; (3) On 31 occasions, there was moderate support for the proposition that most of the applicant details and the witness details handwriting were not written by the same person and the other by a different person or different persons; (4) On a further 44 occasions, Mr Hobden could only reach an inconclusive opinion. On 20 occasions, this was because of an inability to compare machine printed text to handwriting texts. On 24 occasions, no opinion could be expressed. 281 I also do not consider that the fact that there was modest support for the proposition that some or most of the applicant details and witness details in the application for enrolment had been completed by the same person, is sufficient, even with the opinion as to handwriting (i.e. lack of support for same signature -- 76 of 107 -- [2025] SADC 20 73 model or no basis for detailed comparison), to make a finding there had been a false declaration. While it would not normally be expected that the same handwriting would be contained in the applicant detail and the witness details as that would mean that the witness would likely have completed all of the details, that fact is not by itself sufficient to reach any conclusion as there may be other reasons why the witness completed all of the details. Determination of Allegations in respect of persons named in Appendix A where there is further circumstantial evidence Preliminary matters to be Determined 282 Before determining whether there is sufficient evidence to infer that some of persons named in Appendix A to the petition (or persons purporting to be those persons) made declarations that were false either on the declaration on the voting envelope or on the application for enrolment, a number of matters were raised by the Electoral Commissioner and the second respondent regarding the evidence that might be used in that process and what inferences might be drawn from that evidence. 283 The following issues were raised: (1) Was the petitioner, as a matter of pleading, entitled to rely upon alleged contraventions of ss 58(1), 64(1) and 64(2) in relation to the applications for enrolment; (2) If a contravention was established in relation to the application for enrolments, was the Court precluded, by s 72 of the Elections Act, from taking into account that matter when determining whether those contraventions affected the result of the election; (3) Was the petitioner, as a matter of pleading, entitled to rely upon the discrepancies in the date of birth and the different dates upon which the applicant for enrolment and the witness signed the application for enrolment; (4) What use can be made of the discrepancy in the date of birth on the voting declaration and the application for enrolment and the different dates the applicant for enrolment and the witness signed the enrolment application; (5) If the Court determines, based on all of the evidence, that there had been a false declaration or signature, was the Court in a position to determine whether the declaration on the voting envelope or the application for enrolment was false and in particular that the declaration on the voting envelope was false. -- 77 of 107 -- [2025] SADC 20 74 Pleading about the Date Range of the Alleged Contraventions 284 The second respondent submitted that the enrolments closed on 29 July 2022 and therefore the applications for enrolment could not have been forged or falsely or dishonestly applied in the period between 14 October 2022 and 10 November 2022 (as pleaded). That period covers only the period in which votes could be cast in the election. 285 This submission raises a pleading point. It only applies if there is no finding about the signature on the declaration on the envelope of the voting papers but a finding is made about the signature on the application form. It is the case that only the declaration on the envelope of the voting papers was made in the period between 14 October 2022 and 10 November 2022 (being the dates pleaded in paragraphs 5.e to 5.g of the petition) and that the applications for enrolment was made at some time prior to 29 July 2022. However, it is clear from the text of paragraphs 5.e to paragraphs 5.g that the petitioner was asserting, in the alternative, that it was the signatures on the application for enrolment that were false or dishonesty applied. There was no dispute that enrolments closed on 29 July 2022 and that fact was accepted throughout the trial. There was no specific pleading by the second respondent that paragraphs 5.e to 5.g of the petition were not maintainable in relation to the application for enrolment because the dates upon which the applications were completed preceded 14 October 2022. In all of these circumstances, I do not consider that the petitioner’s alternate case relating to the falsely or dishonesty applied signatures on the application for enrolment must fail because they were completed outside of the pleaded period. Does s 72 prevent reliance on alleged falsely completed applications for enrolment 286 The second issue raises a matter of law. Sections 58(1) and 64(2) prohibit specified conduct in relation to the voting at the election and the declaration on the envelope on the ballot papers. Those sections have no application to a false statement in the application for enrolment. However, a contravention of s 64(1) may occur because of a false statement made in an application for enrolment. The issue raised by the second respondent is whether s 72 of the Elections Act precludes reliance on a false statement made on the application for enrolment in relation to a contravention of s 64(1). 287 Section 72 states that the entitlement to vote of a person whose name appears on the voters roll cannot be called into question by the Court. Clause 4 of schedule 1 of the City of Adelaide Act (s 16 of the Elections Act is in substantially the same terms) sets out who is entitled to vote. A knowingly false declaration on an application for enrolment is a contravention of s 64(1) of the Elections Act and therefore an illegal practice under s 4 of the Act. Section 72 does not prohibit the Court from determining that matter. However, s 72 precludes the Court from determining the effect of that illegal practice as it precludes the Court from going behind the roll and finding that the person was not entitled to vote, despite their name appearing on the roll. The Court would not be able to find that such an illegal practice affected the result of the election as to do so would require the Court to -- 78 of 107 -- [2025] SADC 20 75 find that the person on the voters roll was not entitled to be there. That would be calling into question the entitlement to vote of the person on the roll. The petitioner is able to contend that the circumstances concerning the completion of the application for enrolment give rise to the inference that the declaration on the envelope on the ballot papers was false or not exercised by the person who purportedly signed that declaration. That would not contravene s 72. Is the petitioner entitled to rely on the date of birth evidence and the evidence as to the different dates upon which the applicant for enrolment and the witness signed the application for enrolment. 288 The third preliminary issue that arises is whether the petitioner is able to rely upon the discrepancies in the dates of birth and the dates of signature on the application for enrolment in circumstances where those matters were not pleaded in paragraphs 5.e to 5.g of the petition. The second respondent further submitted that s 70(1) of the Elections Act required the petition to set out the facts relied upon to invalidate the election in a petition that was lodged within 28 days after the conclusion of the election and that the petitioner had not pleaded those facts. 289 Doyle CJ in Aldridge51 referred to the decision in Sykes v Australian Electoral Commissioner52 where Dawson J observed that the dividing line between what matters are essential and must be pleaded and what amounts to particularity may be difficult to draw but what was clear was that the essential facts must be sufficient to justify a finding of invalidity. 290 In the present case, the petitioner has pleaded that the breaches of ss 58(1), 64(1) and 64(2) occurred in respect of the 73 persons named in Appendix A and that it was to be inferred from the specified facts that there had been a false declaration or that the vote had been dishonestly applied. Those are the essential facts that must be pleaded so as to comply with s 70. I do not consider that s 70 requires all of the facts from which the inference is to be drawn to be pleaded. In these circumstances, I consider that reliance by the petitioner upon evidence relating to the date of birth (the date of birth evidence) and dates of the signatures by the applicant for enrolment and the witness (the witness signature evidence) does not contravene s 70. 291 Related to this submission, the second respondent further submitted that the failure of the petitioner to plead the date of birth evidence and the witness signature evidence had the consequence that the petitioner should not be entitled to rely upon these matters. The pleading of inferences raises questions of judgment as to whether the pleading is at an appropriate level or too great a level of generality.53 Meek J in Hitchcock v Pratt Group Holdings Pty Ltd as trustee for the Pratt Family 51 [2010] SASC 194, [16]. 52 (1993) 115 ALR 645, 649; [1993] HCA 36. 53 Hitchcock v Pratt Group Holdings Pty Ltd as trustee for the Pratt Family Holdings Trust [2024] NSWSC 1292, [75] quoting from Andrianakis v Uber Technology (Ruling No 1) (Andrianakis)[2019] VSC 850, [41]. -- 79 of 107 -- [2025] SADC 20 76 Holdings Trust, when considering the pleaded of inferences noted that the purpose of pleading was to progress the function of informing the other side of the case to be met and to ensure that they were not ambushed at trial.54 Meek J further quoted, with approval,55 the following passage from British American Tobacco Australia Ltd v Gordon (No 3):56 It must also be borne in mind that the drawing of inferences from admissible evidence is essentially a question of fact, to be determined on the evidence. The relevant inferences to be drawn, and the question of whether ultimately the evidence to be adduced in support of the overt acts support an inference of the existence of the alleged conspiracy, will significantly depend on the nature and quality of the evidence given at trial. 292 In the present case, I do not consider that the respondents have been ambushed at trial or did not know the case that they were meeting. They knew that they were meeting the case that the declarations on the voting envelope were false or the vote dishonestly exercised and that one of the matters that gives rise to that inference were differences between the declaration and the application for enrolment. The evidence relating to the date of birth and witness signature date is derived from the application for enrolment and in the case of the date of birth evidence, a comparison with the declaration. That is not some extraneous matter. The declaration and applications for enrolment are already in evidence and the drawing of inferences is a question of fact from that and other evidence. It would be artificial for the Court to ignore that evidence when it has already been received into evidence. Further s 71(4) requires the Court to act according to good conscience and the substantial merits of the case without regard to legal technicalities. The Court would not be acting in accordance with s 71(4) if it ignored evidence that was admitted at trial because it took the view that the petitioner had pleaded at too high a level of abstraction. Weight to be given of date of birth evidence and witness signature evidence 293 The respondents submitted that the date of birth evidence and the witness signature evidence was of no weight. The respondents first referred to s 39(11) of the Elections Act which stated that a vote might be admitted even though the voter’s date of birth was not declared or accurately declared (clause 18 of schedule 1 of the City of Adelaide Act is in the same terms), unless the returning officer is of the opinion the error is sufficiently significant to warrant the rejection of the vote. The respondents further submitted that the fact that the witness signed the application for an enrolment on a later date did not mean that the application was not properly witnessed. 294 I do not consider that these matters mean that the date of birth and witness evidence should be afforded no weight. These matters are not determinative, by themselves, of illegal practices. They are, however, circumstantial evidence, that, 54 Ibid. 55 Ibid, quoting from Andrianakis [2019] VSC 850, [42]. 56 [2009] VSC 619, [60]. -- 80 of 107 -- [2025] SADC 20 77 with other evidence, may permit the Court to draw an inference that an illegal practice has occurred. Is the Court able to determine that the declaration on the voting envelope was false or dishonestly applied? 295 The Electoral Commissioner and the second respondent submitted that even if the Court was satisfied that the date of birth evidence and the witness evidence led to a conclusion that the application for enrolment and the declaration on the voting envelope were not signed by the same person, the Court was not able to draw any inference in relation to which, if either, of the enrolment application and the declaration on the envelope of the ballot papers was signed by the elector and therefore it was not possible to make any assessment whether a statement in the voting envelope was false or the vote dishonestly applied. The respondents submitted that the Court would be speculating if it determined that the declaration on the voting envelope was false or the vote dishonestly applied. 296 I accept that submission insofar as it applies to voters in respect of whom the only evidence is the signature and handwriting on the application form and the declaration. I do not accept that submission in relation to the persons referred to above where one of the circumstantial facts was the dates of birth evidence. The respondents submitted that each of the following scenarios were equally possible: • That both the application for enrolment and the declaration on the voting envelope were signed by the named voter; • Two people signed the documents, one person is the named voter and the other is not the named voter; • There are two people who signed the documents, but both are not the named voter. 297 The following facts are relevant to the drawing of inferences as to whether the declaration on the voting envelope was falsely and dishonesty applied and whether that is the more probable inference: • The difference in the dates of birth is cogent evidence that the person who signed the declaration was not the person who signed the application for enrolment; • The forgery or false application of a signature on one or both of those documents was made to secure the vote of the person at the election. There is no other reason on the evidence why the documents would have been forged; • The application form does not secure the vote of the person at the election; -- 81 of 107 -- [2025] SADC 20 78 • Persons acting on behalf of the second respondent (each of the persons in Exhibit P7, Mr Bai and Mr Jin, and Mr Zhang) had obtained ballot papers to which they were not entitled and had acted as an assistant to a person voting at an election. The WeChat messages between Mr Zhang and the second respondent suggested that the second respondent knew that ballot papers were being collected under his name. The WeChat messages between the second respondent and Mr Jin suggested that Mr Jin had collected some ballot papers. Each of the persons in Exhibit P7, Mr Bai and Mr Jin, and Mr Zhang obtained ballot papers so that votes could be exercised in favour of the second respondent. Mr Bai, Mr Jin and Mr Zhang had been actively involved in the process of enrolling voters and the obtaining of ballot papers suggesting a link between the two activities. The Court has found that Mr Zhang collected unfilled ballot papers from apartment buildings. The inescapable inference from that evidence is that declarations relating to those ballot papers were then being falsely completed in relation to the ballot papers that were collected. The 2 persons in Exhibit P7 are checking an opened ballot paper, which permits the inference that they are reviewing the ballot paper to ensure that the vote has been cast in favour of the second respondent. 298 There are two competing inferences in relation to the evidence of Mr Bai and Mr Jin handling ballot papers. The first is that the ballot papers in their possession were signed and the second is that they were unfilled ballot papers. It is not possible on the evidence before the Court to determine which inference is more probable. No inference can be drawn from this fact that the declaration on the ballot paper was falsely made. 299 Therefore, the following inferences may be drawn from the date of birth evidence, coupled with the other circumstantial evidence to which reference has been made: (1) the person who signed the declaration was not the same person who signed the application for enrolment; (2) the signatures on one or both of the application for enrolment and the declaration were false and dishonestly applied; (3) the more probable inference is that the signature on the declaration or on both the application form and the declaration were falsely and dishonestly applied. 300 The witness date evidence gives rise to an inference that the application for enrolment has not been properly witnessed. By itself, it does not lead to any inference about the declaration on the voting envelope. It may do so in conjunction with other evidence. -- 82 of 107 -- [2025] SADC 20 79 Voters in respect of whom there is circumstantial evidence that the declaration on the voting envelope was false and dishonestly applied. 301 The evidence relating to the individual persons named in Appendix A must be examined to determine whether there is sufficient circumstantial evidence to conclude that there had been false statements on the declaration or the ballot paper or a vote had been dishonestly exercised. The evidence relating to the persons to be examined must go beyond the signature and handwriting evidence and is to be limited to cases where the second respondent either sent the application for enrolment to the City of Adelaide or there is some link between the witness to the application for enrolment and the second respondent. On the re-opening, there was evidence that the second respondent had sent emails enclosing over 500 applications for enrolment to the Council. 302 In the cases set out below, I find that there is sufficient circumstantial evidence (in addition to the evidence relating to Mr Zhang collecting unfilled ballot papers from apartments and the evidence in Exhibit P7) to conclude that the declaration on the voting envelope was false, that the mark on the ballot paper was therefore false and that the vote was therefore dishonestly exercised. 303 In respect of Jia Peng Li (number 6 of Appendix A): (1) In his report, Mr Hobden said that he was of the opinion that there was lack of support for the proposition that the signature on the declaration was the same as the signature on the enrolment form. One signature was in Roman script and the other was in Chinese; (2) In his report, Mr Hobden said was that there was moderate support for the proposition that some of the applicant details and the witness details on the application form were written by the same writer; (3) She requested with 3 other voters, to be re-issued with voting material due to a change of address to 13 East Street, Magill. Each of the 4 voters gave the same reason for re-issuing, namely that their original election material had been destroyed/lost. Each person made the declaration on 24 October 2022. Three of the four requests for re-issue initially put the wrong postcode on the re-issuing application which was then corrected. These are matters which permit an inference to be drawn that the same person completed all of the requests for re-issue; (4) The application for enrolment was signed by the applicant on 30 June 2022 but witnessed on 16 July 2022 (over 2 weeks later). Each of the application forms in respect of the voters at 13 East Magill were witnessed by the same witness, Meishi Xia, and on the same date, 16 July 2022. -- 83 of 107 -- [2025] SADC 20 80 (5) Each of the applications for enrolment in relation to the voters at 13 East Street Magill and witnessed by Meishi Xia, used the postal address of 33B Kimber Terrace, Kurralta Park; (6) Each of the applications for enrolment of the 4 voters contain the same correction to the postal address (which is the same address as the witness), suggesting that this detail and correction was not made by each of the voters independently. 304 The application for enrolment were sent by the second respondent to the City of Adelaide on 17 July 2022. 305 The more probable inference from these facts, taken together, is that Jia Peng Li did not complete and sign the application for enrolment or the declaration on the envelope of the voters pack or the request for re-issue of the ballot papers. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, was false or misleading in a material respect contrary to s 64(1) of the Elections Act, had made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and had dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 306 In respect of Weiqin Yang (number 21 of Appendix A): (1) In his report, Mr Hobden said that there was lack of support for the proposition that the signature on the declaration was the same as the signature on the enrolment form; (2) The date of birth on the declaration was stated as 19 January (or possibly 19 July) 1997. The date of birth on the application for enrolment was stated as 19 May 1997; (3) The witness on the application for enrolment of Weiqin Yang was Xinye Li. Xinye Li signed a number of other applications for enrolments where there is a discrepancy between the birth dates on the application for enrolment and the declaration on the voting paper (numbers 21, 29, 55 and 68). 307 The second respondent forwarded the application of Weiqin Yang on 24 July 2022. The more probable inference from the above facts is that Weiqin Yang was not the person who signed the declaration on the envelope on the voting paper and that the person who signed the declaration had made a statement that, to that person’s knowledge, was false or misleading in a material respect contrary to s 64(1) of the Elections Act, had made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. -- 84 of 107 -- [2025] SADC 20 81 308 In respect of Zongze Yu (number 22 of Appendix A): (1) In his report, Mr Hobden said was that there was lack of support for the proposition that the signature on the declaration was the same as the signature on the enrolment form; (2) The application for enrolment was witnessed on 14 July 2022 but the application was signed by the applicant for enrolment on 22 July 2022. The application was therefore witnessed before it had been signed. That is cogent evidence that the applicant for enrolment did not complete that form; (3) The application was witnessed by Xinye Li. Xinye Li signed a number of applications for enrolment where there is a discrepancy between that date on the application for enrolment and the declaration (numbers 21, 55 and 68 of Appendix A). 309 The application was forwarded by the second respondent to the City of Adelaide on 26 July 2022. 310 The application for enrolment could not have been completed or signed at the time that it was witnessed. The application was witnessed before it was signed. The more probable inference therefore is that it was not Zongze Yu who completed or signed the application for enrolment or the declaration on the voting papers. It follows from these facts that the person who signed the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at am election or poll contrary to s 58(1) of the Elections Act. 311 In respect of Songchen Bi (number 29 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Songchen Bi, the signature on the application on the enrolment was printed while the signature on the declaration was in cursive; (2) The date of birth on the application for enrolment was 25 January 2002 while the date of birth recorded on the declaration was 4 July 2002; (3) The application for enrolment was witnessed by Xinye Li. In respect of 3 other applications witnessed by Ms Li being those persons numbered 21, 55 and 68 of Appendix A (Weiqin Yang, Melvin Ting, and Jin Yu Yon), there also different dates of birth recorded on the application for enrolment and the declaration). -- 85 of 107 -- [2025] SADC 20 82 312 The application for enrolment was forwarded by the second respondent to the City of Adelaide on 24 July 2002.The more probable inference is that it was not Songchen Bi who signed the declaration of the voting paper. It follows that the person who signed the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 313 In respect of Chang Cia (number 30 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Chang Cia, the application for enrolment is in Roman script, while the signature on the declaration is in Chinese script, although with Roman Script next to it which is clearly different from the signature on the application for enrolment; (2) In his report, Mr Hobden said was that there was moderate support for the proposition that some of the applicant details and the witness details on the application form was written by the same writer; (3) She requested with 3 other voters, that she be re-issued with voting material due to a change of address to 13 East Street, Magill. Each of the 4 persons gave the reasons for re-issuing that their original election material had been destroyed/lost. Each person made the declaration on 24 October 2022 (except Su Chang Liu who did not date her request for re-issue). These are matters which permit an inference to be drawn that the same person completed all of the requests for re-issue; (4) The application for enrolment was signed by the applicant on 22 June 2022 but witnessed on 16 July 2022 (some 3 weeks later). Each of the application forms in respect of the voters at 13 East Magill was witnessed by the same witness, Meishi Xia, and on the same date, 16 July 2022. These matters permit an inference that the application form was not completed by the applicant for enrolment; (5) Each of the applications for enrolment of the 4 voters contain the same correction to the postal address (which is the same address as the witness), suggesting that this detail and correction was not made by each of the voters independently; (6) In the case of each application for enrolment that was witnessed by Meishi Xia, the postal address of 33B Kimber Terrace, Kurralta Park was used. -- 86 of 107 -- [2025] SADC 20 83 314 They were sent by the second respondent to the City of Adelaide on the 17 July 2022. The more probable inference from these facts is that it was not Chang Cai who exercised the vote. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 315 In respect of Yuxiong Han (number 38 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Yuxiong Han, the application for enrolment is in Roman Script, while the signature on the declaration is in Chinese Script; (2) The date of birth on the declaration was 21 November 1970 and the date of birth on the application for enrolment was 7 October 1970. 316 The second respondent forwarded the application of Yuxiong Han on 20 July 2022. The more probable inference is that it was not Yuxionhg Han who exercised her vote. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 317 In the case of Su Chang Liu (number 50 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Su Chang Liu, the signature on the application for enrolment is in Roman script, while the signature on the declaration is in Chinese script; (2) In his report, Mr Hobden said that there was moderate support for the proposition that some of the applicant details and the witness details on the application form was written by the same writer; (3) She requested with 3 other voters, that she be re-issued with voting material due to a change of address to 13 East Street, Magill. Each of the 4 persons gave the reasons for re-issuing that their original election material had been destroyed/lost. Three of the four persons, including Ms Liu, made the same error in the postcode on the request for re-issue -- 87 of 107 -- [2025] SADC 20 84 which was corrected by hand. These are matters which permit an inference to be drawn that the same person completed all of the requests for re-issue; (4) The application for enrolment was signed by the applicant on 22 June 2022 but witnessed on 16 July 2022 (some 3 weeks later); (5) Each of the application forms in respect of the voters at 13 East Street Magill was witnessed by the same witness, Meishi Xia, and on the same date, 16 July 2022. These matters permit an inference that the application form was not completed by the applicant for enrolment; (6) Each of the application for enrolment of the 4 voters contain the same correction to the postal address (which is the same address as the witness), suggesting that this detail and correction was not made by each of the voters independently; (7) In the case of each application for enrolment that was witnessed by Meishi Xia, the postal address of 33B Kimber Terrace, Kurralta Park was used. 318 The enrolment was sent by the second respondent to the City of Adelaide on 17 July 2022. The application for enrolment could not have been completed or signed at the time that it was witnessed. For this reason, and in conjunction with the other matters to which reference has been made, the more probable inference therefore is that it was not Su Chang Liu who signed the application for re-issue of the ballot papers and the declaration on the voting envelope and therefore did not exercise the vote. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 319 In respect of Melvin Ting (number 55 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment.; (2) The date of birth on the application for enrolment was 8 August 2003 while the date of birth recorded on the declaration was 13 July 2004; (3) The application for enrolment was witnessed by Xinye Li. In respect of 3 other applications witnessed by Ms Li being those persons numbered 21, 68 and 69 of Appendix A (Weiqin Yang, Jin Yu Yon and Jialin Yu), -- 88 of 107 -- [2025] SADC 20 85 there were also different dates of birth recorded on the application for enrolment and the declaration. 320 The application for enrolment was forwarded by the second respondent to the City of Adelaide on 24 July 2022. The more probable inference is that it was not Melvin Ting who exercised his vote. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 321 In respect of Hang Xue and Jialin Yu (numbers 62 and 69 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Hang Xue, the signature on the application for enrolment is in Roman script, while the signature on the declaration is in Chinese script. In the case of Jialin Yu, the two signatures are Roman script; (2) The date of birth on the declaration of Hang Xue was 21 April 1994 and the date of birth recorded on the application for enrolment was 28 October 1994. In relation to Jialin Yu, the date of birth recorded on the declaration is 24 May 1976 and the date of birth recorded on the application for enrolment was 24 June 1994; (3) The postal address for Jialin Yu is the same address as the address of the witness; (4) The second respondent sent the application for enrolment of Hang Xue to the City of Adelaide on 10 July 2022. The email sent by the second respondent observed that the application for enrolment recorded that the postal address of Hang Xue was Tenant 1, 176 Franklin Street, Adelaide; (5) The application of enrolment of Jialin Yu was witnessed by Mr Keith Jin. 322 The second respondent sent the application for enrolment of Jialin Yu to the City of Adelaide on 19 July 2022.The more probable inference is that it was not Hang Xue and Jialin Yu who exercised their respective votes. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. -- 89 of 107 -- [2025] SADC 20 86 323 In respect of Hengbo Zhang (number 71 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. The signature on the application for enrolment is in Chinese, while the signature on the declaration is in Roman script; (2) The application for enrolment was witnessed by Trinity Zhang. Mr Zhang signed, as a witness, the application form in Chinese whilst on all other occasions, he signed as a witness in Roman script; (3) The application for enrolment was signed by the applicant on 16 July 2022 but witnessed by Mr Zhang on 20 July 2022; (4) The date of birth recorded on the application for enrolment was 17 March 1997. The date of birth recorded on the declaration was 7 March 1997 (or 3 July 1997). 324 The application was sent by the second respondent to the City of Adelaide on 26 July 2022.The more probable inference is that it was not Hengbo Zhang who exercised his vote or alternatively exercised a vote to which he was not entitled (because he did not complete the enrolment form). It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 325 In relation to Lei Shen (number 17 of Appendix A): (1) In his report, Mr Hobden said that there was a lack of support for the proposition that the signature on the declaration was the same as the signature on the enrolment form. The signature on the declaration is in cursive while the signature on the enrolment form is not; (2) In his report, Mr Hobden expressed the opinion that the signature of Mr Trinity Zhang as a witness to Lei Shen’s application differed from other occasions when he signed as a witness. Mr Hobden confirmed this in cross-examination; (3) The witness details in the application form were completed in type whereas on all other occasions in which Mr Zhang had signed as a witness, those details were completed by hand; (4) Mr Zhang admitted to Mr Ong that he had collected unfilled ballot papers from student apartments. -- 90 of 107 -- [2025] SADC 20 87 326 The second respondent sent the application for enrolment to the City of Adelaide. The more probable inference from these facts is that it was not Lei Shen who exercised her vote. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote at an election or poll contrary to s 58(1) of the Elections Act. 327 In relation to Jing Han (number 36 of Appendix A), Chi Wang (number 56 of Appendix A) and Peize Wu (number 60 of Appendix A): (1) In his report, Mr Hobden said that there was no basis for detailed comparison in that features of the signature on the ballot envelope were not comparable to the features of the signature on the application for enrolment. In the case of Jing Han, the application for enrolment was signed in Roman script (first name only), while the signature on the declaration is in Chinese Script. In the case of Chi Wang, the application for enrolment was signed in Roman script (but only one letter)), while the signature on the declaration is in Chinese script. In the case of Peize Wu, the application for enrolment was signed in Roman script while the signature on the declaration is in Chinese script; (2) Each of the applications for enrolment were witnessed by Mr Keith Jin. I have found that Mr Keith Jin was acting on behalf of the second respondent both during the enrolment process and during the course of the election. Further, I have found that Mr Jin was acting as an assistant or had in his possession ballot papers in contravention of the Elections Act; (3) In the case of Jing Han and Peize Wu, the application for enrolment included a postal address that was different from the residential address of the applicant and in the case of Jing Han, was the postal address of Keith Jin (although it appears that the ballot papers were sent to the residential address). In relation to another application for enrolment (Jialin Yu, number 69 of Appendix A), which was witnessed by Keith Jin, the date of birth on the declaration is different from the date of birth recorded on the application for enrolment. 328 I find that the more probable inference from these matters, in combination with each other, is that it was not Jing Han (number 36 of Appendix A), Chi Wang (number 56) and Peize Wu (number 60) who exercised their respective votes. It follows that the person in signing the declaration, has made a statement that, to that person’s knowledge, is false or misleading in a material respect contrary to s 64(1) of the Elections Act, has made a mark on the ballot papers not being the person to whom the ballot papers was lawfully issued contrary to s 64(2) and has dishonestly exercised a vote in an election or poll contrary to s 58(1) of the -- 91 of 107 -- [2025] SADC 20 88 Elections Act. The second respondent sent the application forms to the City of Adelaide on 19 July 2022, 28 July 2022 and 19 July 2022 respectively. 329 In the case of Jin Yu Yon (number 68 of Appendix A), the date of birth recorded on the application for enrolment was 18 July 1985 while the date of birth recorded on the declaration on the voting paper was 14 November 2000. Her application was witnessed by Xinye Li who witnessed 4 other applications for enrolment of persons named in Appendix A, Songchen Bi, Melvin Ting, Weiquin Yan and Jialin Yu (numbers 29, 55, 21 and 69), each of whom recorded a date of birth on the declaration that differed from the date of birth recorded on the application for enrolment. In each of these 4 cases, the application for enrolment was forwarded by the second respondent to the City of Adelaide. This evidence shows that Xinye Li was acting on behalf of the second respondent when obtaining applications for enrolment. I therefore find that she acted in this capacity when obtaining the application for enrolment of Jin Yu Yon. 330 In total, the Court has found that in respect of 16 voters referred to above there has been to the person’ knowledge who completed the declaration, a false statement in a material respect applied to the declaration on the voting paper envelope or that the vote has been dishonestly exercised at an election or poll or that a person has made a mark on the ballot papers not being the person to whom the ballot papers were lawfully issued and thereby contravened ss 58(1), 64(1) and 64(2) of the Elections Act (the 16 instances of contraventions). 331 Further, the inference from the evidence that Mr Zhang collected unfilled ballot papers from apartments is that those ballot papers were completed by persons other than those who were entitled to complete those ballots. It follows that by reason of that fact, there were further (beyond the 16 instances of contravention) instances, the number of which cannot be ascertained, of false statements in a material particular being made or signatures applied to the ballot paper and voting declarations. The Court therefore finds, by reason of the conduct of Mr Zhang, that, beyond the 16 instances of contravention, there have been further instances, unspecified in number, where there had, to the person’s knowledge, been a false statement in a material respect applied to the declaration on the voting paper envelope and that the vote has been dishonestly exercised and that a person has made a mark on the ballot papers not being the person to whom the ballot papers were lawfully issued and thereby contravened ss 58(1), 64(1) and 64(2) of the Elections Act. 332 Still further, the inference from Exhibit P7 is that in respect of the 5 ballot papers shown, those ballot papers were completed by persons other than those who were entitled to complete those ballots. The inference from exhibit P7 is that the person in the blue jumper is reviewing ballot papers that were opened to check that they have been completed correctly. There are two possible further inferences from this finding. They are: (1) The ballot papers were collected from voters who had filled them in and given them to the person in the black jacket or someone else who later gave them to that person; or (2) persons other than the persons entitled -- 92 of 107 -- [2025] SADC 20 89 to vote, had completed the ballot papers and made the declaration. The more probable inference is that persons other than the person entitled to vote had filled in the ballot paper and made the declaration. I find that inference is the more probable inference based on the following facts: • ballot papers (on the courts findings) were opened; • ballot papers were being checked for accuracy as to how they were being filled in and were then to be submitted; • there was no need to do that, if the person entitled to vote had filled in the ballot paper; • the persons in the blue jumper and black jacket were involved in a coordinated undertaking to secure votes for the second respondent; • votes could be secured by persons other than those entitled to vote filling in the ballot paper. 333 It follows that by reason of that fact, there were a further (beyond the 16 instances of contravention), five instances of false statements being made or signatures applied to the ballot paper and voting declarations. These 16 instances of contraventions did not involve ballot papers that had been addressed to voters at Vision on Morphett, being the location at which the photographs comprising Exhibit P7 were taken. The more probable inference is that the 5 ballot papers in Exhibit P7 were not the same ballot papers as the 16 instances of contravention. The Court therefore finds, by reason of the conduct of the persons in Exhibit P7 that, beyond the 16 instances of contravention, there have been further, 5 instances where there had, to the knowledge of the person completing the ballot paper, been a false statement in a material particular applied to the declaration on the voting paper envelope, that the vote has been dishonestly exercised and that a person has made a mark on the ballot papers not being the person to whom the ballot papers were lawfully issued and thereby contravened ss 58(1), 64(1) and 64(2) of the Elections Act. Other Circumstantial Facts 334 There were a number of other circumstantial facts that were relied upon by the petitioner to support the inferences that he sought to draw in relation to the 73 voters named in Appendix A. 335 The petitioner also relied on the fact that, according to the evidence of Mr Hobden, there was a high proportion of mismatching signatures, namely 80 out of the 117 pairs of the signatures that were examined. As Mr Hobden accepted during the course of cross-examination, an explanation for that high proportion was that the 117 pairs of signatures that were selected for further examination were selected on the basis of suspected mismatch. They were not selected randomly from all the votes cast. -- 93 of 107 -- [2025] SADC 20 90 336 In these circumstances, I do not consider that the proportion of mismatching signatures is a circumstantial fact that can be relied upon to support the allegations contained in the petition concerning false or fraudulent declarations. 337 The petitioner also referred to and placed reliance upon the results of the investigation by the Electoral Commissioner in which certain votes were excluded. These matters do not assist the petitioner. I have come to this conclusion for 3 reasons. First, there is no evidence linking the submission of these votes or the enrolment to the petitioner. Secondly, the matters are not pleaded. Therefore, they do not form part of the basis upon which the petitioner is seeking to overturn the election. Thirdly, although there was evidence relating to these voters and their application form and the voting declarations, there was no submission by the petitioner as to how these matters may assist in drawing inferences relating to the matters raised in the petition. 338 I also do not consider that the fact that certain persons witnessed multiple enrolment forms assists the petitioner in proving the matters alleged in the petition unless, in respect of the 73 named person who it is alleged dishonestly exercised their vote, some finding can be made as to the enrolment application which impugns the witness as well. There is nothing wrong and there is no contravention of the Elections Act with the second respondent organising a concerted campaign to enrol voters. It is clear that he did so. 339 The evidence that on multiple occasions a postal address was used by applicants for enrolment and on some occasions the postal address of real estate agents is of limited assistance to the petitioner. There is no overarching scheme pleaded that includes this allegation. The use of a postal address is not, by itself, objectionable. The inclusion of the postal address can be used by the petitioner as a piece of circumstantial evidence when inviting the Court to draw an inference that the 73 persons referred in paragraphs 5.e to 5.g dishonestly exercised a vote. The evidence does not support the involvement of the real estate agents in relation to the use of postal addresses. Mr Hyde gave evidence that he conducted an analysis of retuned ballot papers that were addressed care of a real estate agent. That analysis (Exhibit 2R33) shows that of the returned ballot papers, 6 were returned from AC Connection, 11 were returned from Harcourts, Adelaide City, 4 from Korn Real Estate and 10 from Majesty Real Estate. No ballot paper was returned from Belle Property. The evidence (Exhibit 2R32) further showed that 42 voter packs had been sent to Majesty Real Estate, 28 voter packs to Korn Real Estate and 98 voter packs to Belle Property. There was no evidentiary basis for making a finding that some form of illegal practice had occurred involving the sending of ballot papers to real estate agents. The evidence, as described above, demonstrates only a small number of ballot papers were returned from voter packs that were addressed to real estate agencies. The number of ballot papers returned from real estate agencies were only a small portion of the number of voting papers that had been sent to those real estate agencies. -- 94 of 107 -- [2025] SADC 20 91 340 There was a very large increase in the turnout of persons who voted in the Central Ward election in 2022. Mr Hyde gave evidence, which I accept and which was not challenged, that there was a 40% increase in the voter turnout. Mr Hyde referred to the large number of persons who enrolled for the Central Ward as one possible reason for the increase. There clearly had been a concerted campaign by the second respondent to enrol voters. Council had also taken steps to increase the number of voters (Exhibit 2R13). There was also some increase in the number of persons living in the electorate which is demonstrated by an increase in the number for councillors to be elected from Central Ward from the previous election. There was evidence about the steps taken by Council to increase voter turnout but it is not possible to make a finding about the reason for the increase in the number of electors in the Central Ward and whether the steps taken by the Council to increase enrolment was responsible for the increased voter turnout at the 2022 election. I do not consider that any conclusion can be drawn in relation to the matters raised in the petition from the increased number of persons voting in the 2022 election for Central Ward. 341 Mr Hyde also gave evidence about the high number of primary votes received by the second respondent but the low number of preferences received by him. He said that was very peculiar. I accept that evidence but do not consider that any conclusion can be drawn from that fact. There is not enough evidence about the usual voting patterns and the degree of departure from the norm and what that might signify. 342 Mr Hou gave evidence that his encouragement of international students to be enrolled on the supplementary roll in 2018 did not result in those students exercising their vote and that many students had moved to a different address by the time of voting. He said that he did not consider the focus on international students to be a successful aspect of his campaigning. 343 The evidence given by Mr Hou on this issue is speculation. Mr Hou was not in a position to give evidence or draw conclusions about the number of international students who voted in 2018 or in the 2022 election. I do not accept any conclusion can be drawn from these facts or that these facts are a circumstantial fact from which, even with other facts, some conclusion can be drawn about matters favourable to the petitioner. 344 The petitioner also relied upon, as a circumstantial fact, the WeChat communication in June 2022 from a Mr Lu Jing who was a member of a management committee of a residential apartment building in which he forwards a message asking for support of the second respondent and stating that they can apply for a ballot paper for you (Exhibit P6). I accept that it can be inferred from this communication that the second respondent encouraged persons to be enrolled. That is evident from other evidence. I do not accept that the WeChat communication can be interpreted as suggesting that the second respondent or those assisting him would fraudulently complete the enrolment form or a ballot paper. The reference to a ballot paper appears to be a reference to an enrolment -- 95 of 107 -- [2025] SADC 20 92 application given that at that time, ballot papers had not been issued and ballot papers are not applied for. I also do not accept that the communication can be said to corroborate the alleged bribe made at the Ancient Oriental. It does not relate to that allegation. Circumstantial evidence from communications discovered on the re-opening 345 The petitioner relied upon certain of the documents that were tendered on the re-opening. These documents, comprising in the main communications involving the second respondent, were relied upon as circumstantial evidence from which the Court could draw an inference relevant to the contraventions of the Elections Act alleged in the petition. 346 The first such document comprises WeChat communications between the second respondent and a Mr Espinosa in July 2022 (Exhibit P68, p 946). In those communications, Mr Espinosa asks which room number should be allocated to some of the enrolment registrations. He further said that in respect of 2 persons (Jinchi Lim and Yanping Zhang, neither of whom are named in Appendix A), they do not really live here. The second respondent replied that he would not submit the forms with respect to those persons. 347 The petitioner submitted that these communications gave rise to an inference that the second respondent was aware that his agents were enrolling persons who did not exist or were not eligible to be enrolled. I do not consider that inference is available or that it assists in the proof of the matters that are the subject matter of the petition. The communications indicate that Mr Espinosa was prepared to randomly allocate applicants for enrolment to particular addresses but that the second respondent rejected that approach. There is no evidence linking Mr Espinosa to any of the persons who are alleged in the petition to have made a false declaration or forged a signature. Even if it was found that Mr Espinosa was prepared to act in a particular way, it does not mean that other agents or persons supporting the second respondent and whose actions were relevant to the matters pleaded in the petition, were also prepared to act in that way. 348 The petitioner relied upon the documents at Exhibit P69 (pp 1106-1110) which comprised an email from a person named as Abby to the second respondent dated 26 July 2022 which attached four applications for enrolment. The declarations made on the ballot papers in respect of those applicants were found by the Electoral Commissioner to have been fraudulently completed and were excluded from the counting. The petitioner submitted that these documents supported the inference that fraudulent conduct was occurring. I do not consider that these matters assist the petitioner or can be used to draw the suggested inference. The Court cannot rely upon a finding of fraudulent conduct because the Electoral Commissioner made such a finding. Further, the matters do not relate to the matters pleaded in the petition The fact that the second respondent forwarded those applications to the returning officer does not give rise to any inference that he was participating or was even aware of fraudulent conduct. -- 96 of 107 -- [2025] SADC 20 93 349 The petitioner relied upon the documents at Exhibit P70 (p 1220) which comprise WeChat communications between the second respondent and Mr Jin in July 2020. The communications show that Mr Jin was assisting the second respondent in obtaining applications for enrolment. The second respondent stated in one of the messages that there may have been information theft and that it could be someone with an ulterior motive. The second respondent stated that he called the person and they did not even know that they had filled out or signed the application form. The petitioner submitted that these communications showed that persons were completing forms without authority and their vote was then being used by third parties. The petitioner further submitted the fact that nominated forms were filled out without the knowledge of the applicant for enrolment supported the inference that persons acting on behalf of the second respondent withdrew ballot packs from letterboxes. I do not consider those inferences are available or supported by the messages between Mr Jin and the second respondent. The alleged taking of ballot papers is an act that is entirely separate from allegations involving fraudulently completed enrolment forms. Even if it were established that enrolment forms were falsely signed, that does not support an inference that ballot papers were taken from letter boxes. I also do not consider that an inference arises that the second respondent received votes from persons who were not entitled to be enrolled or that an inference can be drawn from these communications about any matter pleaded in the petition. The petitioner made clear that he was only seeking to use the evidence as a piece of circumstantial evidence not as any propensity type evidence. 350 The petitioner relied upon the documents at pp 1221-1222 of Exhibit P71. Those documents record WeChat communications between the second respondent and Mr Trinity Zhang in July 2022 in relation to applications for enrolment. The messages support an inference being drawn that Mr Zhang was assisting the second respondent in relation to encouraging and facilitating persons to be enrolled as voters. I do not consider that it supports an inference that corroborates the evidence of Mr Ong as to Mr Zhang collecting and competing unfilled voter packs other than that it supports an inference that Mr Zhang was acting as an assistant to the second respondent. The communications include a message from the second respondent that he called the applicant for enrolment and there was something wrong with those forms and someone provided false information and that he (the second respondent) nullified all of them. I do not consider that the messages support an inference the second respondent or Mr Zhang were involved in illegal conduct in relation to the application forms. It is not clear what enrolment forms the second respondent is referring to when he made that statement and whether Mr Zhang had any involvement in the collection of those forms. 351 The petitioner referred to WeChat communications between the second respondent and Mr Bai made in July 2022 (Exhibit P71, p 1259). Those communications record Mr Bai assisting the second respondent in arranging and facilitating persons to be enrolled as voters. I consider that these communications support an inference that Mr Bai was assisting the second respondent in relation to -- 97 of 107 -- [2025] SADC 20 94 the applications for enrolment. It is therefore a circumstantial fact that may support an inference that Mr Bai was assisting the second respondent as at 27 October 2022 when he was seen by Mr Hou with ballot papers. 352 The petitioner also referred to WeChat communications between the second respondent and Mr Jin (Exhibit P73, p 1353) and the second respondent and Mr Trinity Zhang (Exhibit P73, p 1355). Apart from providing evidence as to the assistance of Mr Jin and Mr Zhang in the enrolment process, these communications do not provide circumstantial evidence that could be used to support a finding about any of the matters raised in the petition. 353 The petitioner relied upon further WeChat communications between the second respondent and Mr Jin in October 2022 (Exhibit P73, pp 1357 and 1358). These communications provide circumstantial evidence of Mr Jin assisting the second respondent during the course of the election. I do not consider that these communications provide circumstantial evidence that the second respondent was involved in illegal practices. There is no admission by the second respondent that he did so. Although some of the responses by the second respondent to the discovery of an illegal practice being conducted by an unknown third party are perhaps unusual, they do not provide evidence of the second respondent himself being involved in illegal practices. I do not consider that the communications corroborate the evidence of Mr Ong as to Mr Trinity Zhang’s actions or Mr Hou and the photographs (Exhibit P7). The communications refer to events occurring at different times. However, the communication does provide evidence of the involvement of Mr Jin in illegal practices. In response to a message from the second respondent on 19 October 2022 that someone was collecting from Vision on Morphett, Mr Jin replied “He/She took all of our ballot papers away saying that he/she was your assistant.” That message provides evidence that Mr Jin had collected various ballot papers and then handed them to another person who he believed was connected to the second respondent. 354 The petitioner referred to communications from a group known as the Youth Campus Group (Exhibit P73, p 1359). These communications go no further than confirming that there was a dinner at the Ancient Oriental, a matter not in dispute. 355 The petitioner referred to further WeChat communications between the second respondent and Mr Jin in May-July 2022 regarding applications for enrolment (Exhibit P74, pp 1433, 1434, 1438, 1443 and 1445-1447). Those communications provide evidence that Mr Jin was assisting the second respondent during the application for enrolment process but do not provide evidence that the second respondent engaged in some form of illegal practices. Again, the petitioner may have suspicions about the communications but that is not sufficient. The communications are consistent with attempts to encourage and facilitate persons to enrol. 356 The petitioner referred to communications between the second respondent and Mr Jin in October and November 2022 (Exhibit P74, pp 1455-1458). These -- 98 of 107 -- [2025] SADC 20 95 communications demonstrate that Mr Jin was assisting the second respondent during the course of the election and may be used as evidence of that issue. The communications do not provide evidence that the second respondent was himself involved in illegal activities, although some of the responses by the second respondent might be considered unusual. 357 These communications (pp 1455-148) provide evidence of the involvement of Mr Jin in illegal practices. In response to a message from the second respondent about the investigation by the Electoral Commissioner and a question by the second respondent that they all elected him voluntarily, Mr Jin replied that he had a “few ballots from international students. If there were any, they were all signed by themselves” The response indicates that Mr Jin at some time, had been provided with ballot papers. This response is a circumstantial fact relevant to the proof of the allegation that Mr Bai handed ballot papers to Mr Jin. 358 The petitioner referred to WeChat communications between the second respondent and Mr Trinity Zhang (Exhibit P75). There are a series of communications between the second respondent in July 2022 in relation to applications for enrolment (pp 1487-1490). Those communications demonstrate that Mr Zhang was assisting the second respondent in that period. 359 There are further communications in October and November 2022 (pp 1494- 1495) that also demonstrate that Mr Zhang was assisting the second respondent in the course of the election. I have already made findings in relation to these communications. 360 Mr Bai, on the return of his subpoena stated he no longer possessed communication records (Exhibit P76, p 1539) between him and the second respondent regarding the election. The letter went on to say that he had very limited communications with the second respondent regarding the election other than some brief communication regarding enrolment of several legitimate voters. It is not possible to conclude how extensive the communications were between Mr Bai and the second respondent. Those communications produced by the second respondent include some messages between May 2022 to July 2022. It is evident from these communications that they are not a complete record. It is also evident from the communications that the second respondent asked Mr Bai to assist with the enrolment of tenants of buildings that he managed and that Mr Bai provided that assistance. Breaches of the Common Law of Elections 361 The petitioner also pleaded in the petition that the separate acts relied upon, individually or collectively, constituted a coordinated scheme to illegally affect the outcome of the election. The individual acts relied upon are all contraventions of the Elections Act. In those circumstances, in accordance with the decisions in Featherston and Aldridge, there is no room for the common law of elections to apply to those individual acts. -- 99 of 107 -- [2025] SADC 20 96 362 I have also found that the common law of elections does not apply to an election conducted under the Elections Act, even to the limited extent described in Aldridge, namely a collective group of individual acts. Affect of the Illegal Practices on the Result of the Election 363 Section 73 of the Elections Act provides: (1) The Court cannot declare an election void, or that a candidate returned as elected was not duly elected, on the ground of an illegal practice found by the Court to have been committed unless the Court is satisfied, on the balance of probabilities, that the result of the election was affected by the illegal practice. (2) If an illegal practice under section 57, 58 and 59 is found by the Court to have been committed, the illegal practice will be taken to have affected the result of the election unless the contrary is proved on the balance of probabilities. 364 The second respondent has not been found to have had offered a bribe. 365 The Court has found the following contraventions of the Elections Act have occurred: • Contraventions of ss 61(1) and 61(4) by the persons in the black jacket and blue jumper on 27 October 2022 (Exhibit P7); • Contraventions of ss 61(1) and 61(4) by Mr Bai and Mr Jin on 27 October 2022; • Contravention of s 61(4) by Mr Trinity Zhang; • Contraventions of ss 58(1), 64(1) and 64(2) in relation to the 16 instances of contraventions; • Contraventions of s 58(1), s 64(1) and s 64(2) by Mr Zhang collecting unfilled ballot papers from apartments and subsequently filling them in them or arranging for them to be completed; • Contraventions of ss 58(1), 64(1) and 64(2) in relation to the 5 ballot papers being handled by the persons in the black jacket and blue jumper on 27 October 2022 (Exhibit P7). 366 No finding of bribery was made. However, a finding has been made that persons had dishonestly exercised a vote at an election to which they were not entitled contrary to s 58(1) of the Elections Act. That finding was made in relation to the 16 persons identified above and in relation to Mr Zhang collecting unfilled ballot papers from apartments and in relation to the conduct of Mr Zhang and the persons shown in the black jacket and blue jumper in Exhibit P7. 367 It is not readily apparent why a contravention of s 58(1) will be presumed to have affected the result of the election. It may be that in the case of a contravention -- 100 of 107 -- [2025] SADC 20 97 of s 57 (a bribe) or s 58(2) (dishonesty influencing or attempting to influencing the result of the election), the impact or consequences of the contravention may be widespread and difficult to prove, hence the need for the presumption. In the case of a contravention of s 58(1), the impact is more ascertainable. A further rationale for the presumption may be the seriousness that the legislature views a contravention of s 58. 368 In the present case, if the finding of the breach of s 58(1) was limited to the 16 instances of contravention and the 5 ballot papers being handled by the persons in Exhibit P7, the consequences of the individual breaches of s 58(1) are identifiable. Therefore, although the presumption applies, on the evidence before it, the Court would be satisfied, on the balance of probabilities that the particular breach of s 58(1) does not, by itself, lead to the conclusion that the result of the election had been affected. By the nature of the breaches, only one vote has been dishonestly exercised in relation to each contravention. In such a case therefore, the presumption has been displaced. The Electoral Commissioner and the second respondent would need not to adduce evidence to rebut the presumption, as the contrary would have been proved by the evidence of the circumstances in which the contravention occurred. Those circumstances would include the number of votes which have been identified as having been dishonestly exercised. 369 However, the breaches of s 58(1) went beyond the 73 identified voters (in respect of which the Court found 16 instances of contravention) and the 5 ballot papers handled by the persons in Exhibit P7, by reason of Mr Zhang collecting unfilled ballot papers. The petitioner submitted that the presumption in s 73(2) should operate in respect of the s 58(1) contravention because the Court has found that further forgeries (and therefore dishonest exercise of votes) occurred by Mr Zhang collecting unfilled ballot papers from student apartments. The number of ballot papers so collected by Mr Zhang was not identified. 370 The inference that arises from the collection by Mr Zhang of the unfilled ballot papers is that he would complete the ballot papers and thereby exercise the vote in respect of those papers. Mr Zhang and others acting on behalf of the second respondent (with or without his authority) had collected applications for enrolment for voters which they had provided to the second respondent. Those acting on behalf of the second respondent, including Mr Zhang, had access to the personal details of the voters. In these circumstances, the presumption applies and the breach will be presumed to have affected the result of the election unless the contrary is proved on the balance of probabilities. The respondents did not adduce any evidence to the contrary. 371 Therefore, considering the totality of the contraventions of s 58(1) comprising the 16 instances of contravention, the 5 ballot papers handled by the person in Exhibit P7 and the unascertained number of ballot papers collected and filled in by Mr Zhang, the presumption applies. Accordingly, the Court finds that the illegal practice, namely the dishonestly exercising a vote at an election affected the result of the Central Ward election. -- 101 of 107 -- [2025] SADC 20 98 372 Although not strictly necessary to do so given my finding concerning the breach of s 58(1), I will now consider the individual breaches of the Elections Act which have been found to have occurred and whether they affected the result of the election. 373 Senior counsel for the Electoral Commissioner submitted that under s 73(1) it was Parliament’s intention that the Court must be satisfied that the individual illegal practice affected the outcome of the election, not that a number of practices in cumulation did so. The Electoral Commissioner referred to the definitive article “the” in s 73(1) as supporting that contention. 374 There are cases where the use of the word “the” may indicate a deliberate choice by the legislature to limit the subject matter to the singular.57 However, that is not the case under s 73(1). I have formed this view for four reasons. First, the structure of s 73 does not suggest that the effect of each breach should be considered separately. In the second sentence of s 73, the use of the phrase “an illegal practice” does not suggest that the practice is limited to the singular or individual breach. The use of “the illegal practice” at the end of s 73 is a reference back to the illegal practice or illegal practices referred to in the second line, rather than indicating an intention to limit the enquiry to a singular illegal practice. Secondly, the clear purpose of the Elections Act is to provide a remedy which includes declaring the election invalid where it has been established that contraventions of the Elections Act has occurred that affect the result of the election. That purpose would be undermined if contraventions that were established had to be considered in isolation. Thirdly, multiple breaches of a section of the Elections Act (e.g. of s 61 or s 64) might be said to give rise to separate breaches of the Act. Fourthly, s 10 of the Legislation Interpretation Act 2021 states the singular to include the plural and thereby requires the Court to construe “an illegal practice” in s 73(1) as “illegal practices”. Therefore, the aggregate of the breaches must be considering in determining whether the election result has been affected by the contraventions. 375 The petitioner must therefore establish on the balance of probabilities that the illegal practices that the Court has found to have occurred have affected the result of the election. That is a matter of inference. The petitioner submits that the inference can be drawn that the votes that were comprised in the 16 instances of contravention and the acts that were the subject of the illegal practices were cast in favour of the second respondent and would not have been cast at all but for the illegal practices and the coordinated efforts of the second respondent and his supporters. 376 The Electoral Commissioner and the second respondent contended that the fact that the second respondent had submitted the enrolment forms was not a sufficient reason to conclude that those persons voted in favour of the second 57 See Tamaj v Victorian Civil and Administrative Tribunal (2003) 9 VR 154,[44]; [2003] VSCA 113 but see also [45] where the Court found that the singular must be taken to include the plural. -- 102 of 107 -- [2025] SADC 20 99 respondent. The Commissioner further submitted that under the Elections Act, the election is conducted as a secret ballot. The Elections Act also permitted, and did not make illegal, encouraging persons to enrol to vote. The combination of these matters, it was submitted, meant that the Court should exercise care before concluding that a person voted in favour of a candidate who encouraged or assisted them in enrolling to vote. 377 Many of the matters relied upon by the petitioner in paragraph 6 of the petition do not provide a factual basis from which an inference might be made that the particular voter cast their vote in favour of the second respondent. For example, the fact that the number of persons enrolled in the Central Ward increased markedly from the previous election does not provide any basis that a particular person voted in favour of the second respondent. There was no evidence that the person to whom voting packs were issued and who are set out in Appendix A to the petition were international students or citizens of the People’s Republic of China. There was no evidence that landlords of apartment buildings were involved in ensuring that votes were cast in favour of the second respondent. 378 The structure of the Elections Act supports the general proposition that encouraging or facilitating a person to be enrolled, is not a sufficient reason, by itself, to conclude that that person, if they voted in the election, voted for the person who so encouraged them. However, that encouragement is not the sole basis in the present case for considering the question of how the person voted and the subsequent question as to whether the result of the election was affected. In these proceedings, these questions cannot be divorced from the evidence relating to, and circumstances of, the contraventions of the Elections Act that the Court has found to have occurred. 379 Mr Jin and Mr Bai, the persons in Exhibit P7 and Mr Zhang were acting on behalf of the second respondent when they engaged in conduct that contravened the Elections Act and thereby committed illegal practices. The inference is that they did so, not for their own benefit, but to secure votes for the second respondent in the election for the Central Ward. The circumstances of the contraventions give rise to the inference that the votes in which the ballot papers had been collected by them or were in their possession for a particular reason, namely, to be returned with votes cast in favour of the second respondent. 380 Therefore, the Court finds that in respect of the 10 ballot papers being handled by Mr Jin and Mr Bai, the 5 ballot papers being handled by the persons in Exhibit P7 and the number of ballot papers collected by Mr Zhang, the votes from those ballot papers were cast in favour of the second respondent. Those persons were all acting on behalf of the second respondent. Their possession of the ballot papers was in contravention of the Elections Act. They had been collected from voters on behalf of the second respondent (with or without his authority) for the obvious purpose of sending them to the Returning Officer. -- 103 of 107 -- [2025] SADC 20 100 381 In relation to the 16 instances of contravention, the inference is that those votes were cast in favour of the second respondent. The following facts give rise to this inference: (1) Mr Zhang had collected unfilled ballot papers on behalf of the second respondent; (2) Mr Bai, Mr Jin and the persons in the blue jumper and black jacket in Exhibit P7, had acted on behalf of the second respondent and had in their possession ballot papers to which they had no entitlement, which suggested a coordinated scheme to secure votes for the second respondent. The Court has found in relation to Mr Zhang and the persons depicted in exhibit P7, that the ballot papers had been filled in by persons other than those entitled to vote; (3) The second respondent had engaged in a co-ordinated scheme to enrol voters and had engaged a number of persons to assist in doing so; (4) Mr Bai, Mr Jin and Mr Zhang were persons who, on behalf of the second respondent, participated in the scheme to enrol voters; (5) The second respondent submitted over 500 applications for enrolment including the application forms in relation to the 16 instances of contravention. In 7 of the 16 instances, a postal address was included in the application for enrolment that was different from the residential address of the applicant; (6) The second respondent, through persons acting on his behalf, was involved in arranging for the applications for enrolment of the 16 persons to be completed and submitted to the City of Adelaide and in fact, such persons, witnessed the applications; (7) In relation to the 16 instances of contravention, the Court has found that there had been a dishonest exercise of the vote contrary to s 58(1); and persons other than those entitled to vote and filled in the ballot papers (8) Persons acting on behalf of the second respondent had engaged in the collection of ballot papers; 382 Where the second respondent has sent emails to the City of Adelaide enclosing enrolment forms in respect of the 16 instances of contravention, it can be inferred from the matters set out above that persons acting on behalf of the second respondent have actively participated in the enrolment of that person and that was done for the purpose of ensuring that the vote in respect of that person was not made by that person and was exercised in favour of the second respondent. 383 Senior Counsel for the Electoral Commissioner submitted that even if contraventions of s 61 of the Elections Act had been found to have occurred in -- 104 of 107 -- [2025] SADC 20 101 relation to the five ballots in the hands of the two unidentified men who were the subject of Exhibit P7 and the 10 ballot papers in the possession of Mr Bai and Mr Jin, this was not sufficient to change the outcome of the election. I have already expressed my view that any such contravention should not be considered in isolation and must be considered cumulatively with the other contraventions that the Court has found to have occurred. 384 The Court makes the following findings in relation to the contraventions that have found to be established: (1) The persons in the black jacket and the blue jumper in Exhibit P7 were acting on behalf of the second respondent. The person in the blue jumper was shown to be accepting and reviewing ballot papers. The person in the black jacket handed ballot papers to the person in the blue jumper. There was no proper reason for them to have those ballot papers. The more probable inference from those facts was that the person in the blue jumper was in possession of the ballot papers and reviewing them for the purpose of checking that votes had been cast in favour of the second respondent, before the ballot papers were sent to the returning officer. The five ballot papers were in the possession of the person in the blue jumper and the black, and he was acting as an assistant to a person voting in the election. These matters constituted an illegal practice under the Act. I therefore find that the probable inference in respect of this illegal practice, is that these 5 votes were cast in favour of the second respondent; (2) Mr Bai and Jin were acting on behalf of the second respondent. Mr Jin accepted 10 ballot papers from Mr Bai on 27 October 2022 at the Stonemill Restaurant outside the Vision on Morphett Apartments. As stated previously, the ballot papers in respect of the 16 instances of contravention were not sent to voters at Vision on Morphett. The more probable inference therefore is that the 10 ballot papers did not form part of the 16 instances of contravention. There was no proper reason for Mr Jin to have those ballot papers or for Mr Bai to hand them to him. The more probable inference from those facts was that Mr Jin was in possession of the ballot papers acting on behalf of the second respondent and to submit those ballot papers to the returning officer. The more probable inference from these facts is that the votes were cast in favour of the second respondent. I therefore find that in respect of this illegal practice, 10 votes were cast in favour of the second respondent; (3) Mr Trinity Zhang was acting on behalf of the second respondent when he knocked on apartment doors and collected unfilled ballot papers. Mr Zhang and others acting on behalf of the second respondent had obtained applications for enrolment forms from voters and therefore had the means to know of their personal details. As he was acting on -- 105 of 107 -- [2025] SADC 20 102 behalf of the second respondent, the more probable inference was that he would cast the vote from these unfilled ballot papers in favour of the second respondent. It not possible from the evidence to be precise as to the number of votes from this illegal practice to have been cast in favour of the second respondent, but I have found that at least a number of votes were cast in favour of the second respondent. I therefore find that in respect of this illegal practice, a number of votes were cast in favour of the second respondent; (4) In respect the 16 instances of contravention, an illegal practice had occurred in that there had been a knowing false declaration made in a material respect or a person had dishonestly exercised a vote. In each of these cases, the Court has found that the more probable inference from these facts were that the votes were cast in favour of the second respondent. 385 It follows from the findings that I have made, that I am satisfied on the balance of probabilities that more than 24 votes were cast in favour of the second respondent where there had been illegal practices. I am also satisfied that on the evidence before the Court, the more probable inference is that these votes would not have otherwise been cast. It follows that I am also satisfied on the balance of probabilities that the result of the election was affected by the illegal practice, given that the margin in the election was 24 votes. Orders 386 The Court has found that there have been illegal practices and that those illegal practices affected the result of the election. It follows that the petitioner has made out some of the matters that have been alleged in the petition. In his petition, the petitioner has sought an order that the election for the Central Ward of the City of Adelaide Council held in October and November 2022 and declared on 18 November 2022 be declared void. The petitioner has also sought a declaration that Carmel Noon, Zhoupeng (Simon) Hou, David Elliott and Jing Li were not duly elected in the election. Under s 71(1) of the Elections Act, the Court has the power to make such declarations. In NSW Electoral Commissioner v Kempsey Shire Council (No 2),58 Beech-Jones CJ at CL (as he then was) considered what orders should be made in the circumstances of that case and whether it was appropriate that orders be made declaring the election of particular councillors void. In NSW Electoral Commissioner v Kempsey Shire Council (No 3),59 the Court ultimately made such orders. 387 However, before making formal orders, the parties should have the opportunity to make submissions as to the appropriate orders to be made and any order as to costs. 58 [2022] NSWSC 282. 59 [2022] NSWSC 409, [14]. -- 106 of 107 -- [2025] SADC 20 103 Conclusion 388 For the reasons that I have expressed, the Court finds that illegal practices have occurred which have affected the result of the election. -- 107 of 107 --