‘Insufficient evidence’: Judge urged to dismiss city council election challenge

Lawyers for the Electoral Commissioner say “something went wrong” during an Adelaide City Council ward ballot, but it didn’t influence the outcome and there was not enough evidence of an “orchestrated scheme to corrupt an election”.

Feb 05, 2024, updated Feb 05, 2024
Photos of two unidentified men handling ballot packs outside Vision apartments on Morphett Street. Counsel for Jing Li have submitted there is no evidence they were holding Central Ward ballot packs, that they weren’t entitled to the ballot packs, or that they were connected to Jing Li. Photos: supplied

Photos of two unidentified men handling ballot packs outside Vision apartments on Morphett Street. Counsel for Jing Li have submitted there is no evidence they were holding Central Ward ballot packs, that they weren’t entitled to the ballot packs, or that they were connected to Jing Li. Photos: supplied

The Court of Disputed Returns heard closing arguments on Friday in former city councillor Alex Hyde’s petition to throw out the 2022 Adelaide City Council Central Ward election.

Hyde petitioned the court in December 2022 to declare the Central Ward election void, alleging “illegal practices” and “voter harvesting” contributed to his narrow loss to newly elected councillor Jing Li.

The legal challenge came after the Electoral Commission rejected 23 ballots from Central Ward over suspicions they were not returned by the residents whose names were attached to the voting slips.

It also came after a photo was published in The Advertiser on November 1, 2022, of two men handling numerous ballot packs outside Vision apartments on Morphett Street.

The photos have been a significant piece of evidence in the case, with four CBD apartment blocks becoming the subject of an ongoing investigation from the Electoral Commission.

Hyde’s lawyers have alleged that people unbeknownst to Hyde “orchestrated a scheme to corrupt and falsify the result of the election to the benefit of… Jing Li”.

Li has consistently denied any wrongdoing, and his counsel told the court on Friday that Hyde’s case has been “constructed from nothing more than a myriad of feelings, assumptions, conjecture and speculation”.

Electoral Commissioner Mick Sherry has also come under fire for his oversight of the election, conceding last week that some of the additional oversight measures put in place to safeguard the poll were “ad hoc”.

On Friday, Todd Golding KC, for Sherry, said while there were “irregularities” with the election, there was not enough evidence of an “orchestrated scheme” to corrupt the results.

“Overall, the submission of the Commissioner is that there is insufficient evidence – and insufficient evidence by some margin – to make out what’s being described in the opening as a scheme,” Golding said.

“It was pitched quite high that it wasn’t a series of individual breaches but rather that there was a deliberate and orchestrated scheme to corrupt and falsify the result.

“There is simply no way on the evidence that is being led… that that has been made out.”

Golding did, however, concede that the photo of the two men handling ballots outside the Vision apartments was “unusual”.

“In what is otherwise usually meant to be a single ballot process, there is no doubt that that is unusual and that… it would be right for the Electoral Commissioner… to investigate to try and get an explanation for that or to guard against what might be improper practices for the purposes of the integrity of the election,” Golding said.

“And ultimately that’s what’s happened… the actions taken by the Commissioner were based on what he was told.”

Judge Michael Burnett, who will make the final judgment in the case, said he was “not really concerned with what the Commissioner did or didn’t do” – but added that from the photos there is “an inference perhaps available that someone improperly has in their possession a number of voting packs, about four or five”.

Golding replied: “Yes, and throughout the pleadings the Commissioner does admit that something went wrong and there were irregularities.

“But the difference that we have on this one between the parties is whether that affected the outcome of the election.”

Judge Burnett asked Golding whether he was saying only four or five ballots were affected in the photo. Golding replied: “Indeed.”

Earlier last week, the Electoral Commissioner said six electors from Central Ward have informed authorities that they did not vote in the 2022 election. Sherry also said four ballots rejected from Central Ward should have been counted.

On Friday, barrister Helen Luu, for Li, said Hyde’s case was based on “inexact proofs”, “indefinite testimony”, “indirect inference” and “confirmation bias”.

She also said there was “no reliable evidence” connecting the men outside Vision apartments to Li.

“We know from the Electoral Commissioner’s evidence that one person can lawfully be entitled and have access to multiple voter packs for reasons that they are a natural person in the area plus they have an interest in a body corporate or a group,” Luu said.

“Even if Your Honour finds they were not entitled to have possession of those voter packs, again, there is no evidence – no reliable evidence – to link these two men as being connected to Jing Li or being his assistants.”

Luu said the two men in the photo have not been identified in the case other than “unreliable hearsay” from one of the witnesses in the trial.

She also sought to cast doubt over Central Ward councillor Simon Hou’s evidence. Hou was present with his wife when she took the photos of the two men handling ballot packs outside Vision apartments.

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“Mr Hou at the point of time he saw these two people didn’t actually confront them or ask what they were doing, and it perhaps is an illustration of the depth of his confirmation bias at that stage in October 2022,” Luu said.

“He made the assumption that they were holding Central Ward ballot packs, he made the assumption that the two men weren’t entitled to ballot packs, he again assumed that they were connected to Mr Li even though we know that were other people from Hong Kong who were running for election at the same time.

“The only inference that is open to you [Judge Burnett] is the two men were in possession of Adelaide City Council Central Ward ballot packs, but no more.”

Counsel for Hyde on Friday highlighted that Li had not put himself up for cross examination nor any witnesses.

They also urged the judge to look at the entirety of the evidence – including an alleged WeChat message encouraging students to bring their voter packs to apartment foyers for collection, and allegations that jobs were offered for voter enrolments – to avoid missing “the bigger picture”.

“The applicant’s case is very much… strands in a cable,” barrister David Blyth said.

“In each piece of evidence that’s been produced in and of itself may or may not be overly probing of a particular fact or issue.

“But the evidence together is what the applicant relies on to demonstrate… the various practices that have been pleaded.”

Blyth conceded that Hyde’s case was “partly, at least circumstantial in nature”.

But he said the photos of the two men outside the Vision apartments was “the starting point” and “each piece of evidence can only properly be considered in light of this overwhelming and compelling piece of evidence”.

“That evidence is very strong evidence of, first of all, multiple ballot packs being handled, second of all, opened ballot packs being handled, and thirdly, that ballot packs then being passed immediately after those photos between agents of Jing Li which is where the earlier and the circumstantial evidence comes in to give flavour and context,” Blyth said.

“So, to the extent that various conversations or pieces of hearsay evidence or WeChat messages – to the extent that those individually and in isolation have their limitations, and many of them do, we don’t shy away from that – that evidence is corroborative of the more central aspect of this case which is the pre-handling of ballot packs which can only be taken in isolation to be Adelaide City Council election ballot packs.

“It is very much a case that is partly at least circumstantial in nature but very much strands of a cable, and those strands coming together supporting the central piece of evidence which ought not to be doubted or rejected.

“And those additional pieces of evidence then add a context and flavour of what is and is pleaded to be illegal practices contrary to the legislation.”

The trial is set down for one last hearing on February 26.

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