Arthur v Williams [1994] CKCA 17; MISC 185.1994 (24 May 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT AUCKLAND
(CIVIL DIVISION)
MISC. NO. 185/94

IN THE MATTER
of Section 74 of the Electoral Act 1966

BETWEEN

IAVETA ARTHUR
of Auckland, Self-employed
PETITIONER

AND

JOSEPH WILLIAMS
of Auckland, Medical Practitioner
FIRST RESPONDENT

AND

TERE MATAIO
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

TAGGI TANGIMETUA
Returning Officer for the Overseas Constituency
THIRD RESPONDENT
(No 2)

Counsel: Mr M. Mitchell for the Petitioner
Mr H. Puna for the First Respondent
Mr J.M. Priestley for the Second and Third Respondents

Date of Hearing: 27, 28, 29 April 1994
Date of Judgment: 24 May 1994

JUDGMENT OF DILLON J

A General Election in the Cook Islands was held on 25 March 1994. One of the Constituencies is known and identified as the "Overseas Constituency" and encompasses all countries and registered electors outside the territories of the Cook Islands- principally New Zealand and Australia,

The Petitioner was the unsuccessful candidate in that election. He was the Member of Parliament representing the overseas constituency in the previous Parliament prior to it being dissolved. The Respondent is the successful candidate at the March 1994 election.

The Petitioner has now filed an Electoral Petition pursuant to the provisions of Section 74 of the Electoral Act 1966. This Petition is limited to and has application only to the Overseas Constituency.

There were four candidates all nominated for the Overseas Constituency and the number of votes each received were as follows:

Dr Williams 357

Mr Arthur 132

Mr Quarter 62

Mr George 39

The grounds of the Petition are as follows:

(1) the nomination of the said Joseph Williams was invalid;

(2) the said Joseph Williams or his agents interfered with the electoral process;

(3) votes were cast which your Petitioners say were invalid.

On 21 April 1994 Counsel for the Petitioner advised the Solicitor General that the first ground of the Petition was abandoned. At the same time further particulars were provided to the Solicitor General as to the substance of the grounds (2) and (3) which the Petitioner intended to pursue. These further particulars are as follows:

Ground (2)

"In respect of Ground 2(2) it is alleged that Mr Vaka Akatika, an agent for the First Respondent, personally delivered the postal vote envelope of a registered voter namely Turangakino Kirimangeo to that voter's address in Mangere. It is alleged that Mr Akatika instructed the voter to put a cross next to the name of the First Respondent. It is further alleged that the same person entered the residence of Mr Teremaki Munokoa and his wife with the postal envelope containing the voting paper. It is further alleged that the same Vaka Akatika travelled to Australia after the postal votes had been dispatched to Sydney, Melbourne and Brisbane and interfered with the postal voting process in that country.

It is further alleged that the Campaign manager for the First Respondent a Mr Joseph Kaa interfered with the electoral process by giving dubious advice to officials and others as to the qualifications necessary in the overseas constituency. A copy of that advice is attached. It is alleged that this misleading advice lead to voters being encouraged to enrol who were not qualified. The petitioner complains that it is evident that from the enquiries made in the short time available prior to election day under the objection process, that a very high percentage of registered voters were not in fact qualified to be registered. The petitioner says that under Section 12(2) of the Electoral Act the Registrar in charge is required to make "due enquiry" before entering the name of an applicant on the role and that such enquiries were not made, the assertions on the application for registration form being accepted at face value.

The Petitioner therefore requires to be produced at the hearing all persons from the Electoral Office who were involved in accepting, scrutinising, or otherwise dealing with all applications for registration of voters in the oversees electorate."

Ground (3)

"As to ground 2(3), I am unable to provide, at this stage, the names of the voters who are being challenged. You will see that the challenges mounted on the somewhat broader footing - namely that the petitioner alleges that electoral officers and others were mislead as to the requirements for registration on the oversees roll. Further, the number of successful objections in the short time available suggests that the entire roll is tainted because of the alleged acceptance by the electoral officers of the statement made on the applications for registration and the lack of enquiries made by them in that regard.

Such is the wide-ranging nature of this petition that I have made an application to the High Court for all the electoral documentation to be made available at Auckland."

I shall firstly deal with Ground (2). Mr Mitchell called six witnesses - two were electoral officers; two were witnesses who supported the Petitioners' allegations; and two were witnesses who contradicted the allegations in the Petition - a very strange mix of evidence indeed for the Court to try and decipher. I shall now consider the evidence submitted by these witnesses.

Firstly was Mrs Kiri Turangakino. She alleged that when she came home on 21 March 1994 she met her relative, her very good friend, and an Ora Metua, Mr Vaka Akatika. He enquired of her if she had received her voting papers; when advised by Mrs Turangakino in the negative he indicated to her that they would be arriving in that afternoon's mail. In fact she confirmed papers did arrive later in the day. Mr Akatika returned in the afternoon of the same day and went through the papers with her. She believed, so she said, that these were papers other than voting papers. She believed that because she claimed that Mr Akatika had told her she would receive the actual voting papers later in the week. As a result of this information she signed the papers as directed by Mr Akatika and despite hesitation initially she again did what Mr Akutika told her and signed another paper on behalf of her husband.

It is acknowledged that Mr Turangakino did not cast his vote at the election; he is however recorded as having voted; Mrs Turangakino acknowledges that she signed the voting papers on her husband's behalf; and that she herself is recorded as having voted at the election.

It is on the basis of that evidence that the Petitioner claimed that Mr Akatika as a supporter and agent of the First Respondent collected the postal voting paper posted to Mr and Mrs Turangakino; instructed Mrs Turangakino to vote in favour of the First Defendant; and further coerced her into illegally voting for her husband again in favour of the First Respondent.

However, of equal significance it is on the basis of that evidence that the Petitioner now alleges that Mr Akatika carried out the same or similar activities in New Zealand and in Australia without however identifying in any way whatsoever the name or names of the voters so alleged to have been interfered with. These are most serious allegations that have been made against Mr Akatika and as a consequence both demand and justify critical examination.

As a result of the evidence given by the two electoral officers called by the Petitioner it has been established that postal votes in the Auckland area were posted to registered electors by ordinary post on 15 March 1994. Mrs Turangakino would have received her voting papers on either 16 or 17 March. However she was most insistent in giving her evidence in chief that she received her papers on 21 March but conceded it may have been on 22 March. It was, however, she claimed, one of those days.

Now Mr Akatika, in the course of giving his evidence, was able to establish that he went to Australia on 17 March 1994. He produced his passport to establish that fact. His evidence was not unnaturally a most serious impediment to the evidence provided so confidently by Mrs Turangakino. Mr Mitchell, for the Petitioner, in conceding that the dates given by Mrs Turangakino clearly could not be sustained submitted by way of explanation that she "plainly got the date wrong". However the significance of Mrs Turangakino's evidence is fundamental to the claim by the petitioner that "(2) the said Joseph Williams or his agents interfered with the electoral process" because it is on the basis of the evidence of Mrs Turangakino that Mr Mitchell makes the following generalised submissions in his final summation, viz.:

(a) "Your Honour is entitled to draw an inference from these facts - namely that Mr Vakatika made it his business both here and in Australia to visit voters after they had received their voting papers for the purpose of influencing their votes. We will never know how many were so visited. Mrs Turangakino said twice in her evidence that he said to her that he (Mr Vakatika) was busy and had to see others for similar purpose. She also testified that he had brought the voting paper to her and that he took it (them) away with him."

(b) "Although in the present case we are not concerned with a "corrupt practice" as set out in Section 68 nevertheless a corrupt intention was manifestly present on the facts with an obvious motive."

However what does a close examination of Mr Akatika's evidence reveal. First it must be remembered that he was called by the Petitioner as the Petitioner's own witness. His evidence therefore was intended to support the evidence given by Mrs Turangakino. Because it didn't Mr Mitchell labels the Petitioner's own witness as a cheat; as a person determined to influence electors both in Australia as well as in New Zealand to vote for the Respondent.

But before considering these generalities of Counsel based on what he asserts as unacceptable evidence because it is contrary to the interests of the Petitioner he is promoting, it is necessary to consider the actual evidence given by Mr Akatika when called by the Petitioner and when cross examined by Counsel for the Respondent.

He said that the purpose of his visit to Australia on 17 March 1994 arose very suddenly and was completely unplanned. It related to a radio station crisis in Sydney and in which he had an interest and which he had been asked to attend to in the emergency situation which had arisen. He claimed that all or any visits that he made to Mrs Turangakino were related to Church affairs. He was a Deacon in the Church; they were members of the same Church; and they were related. He strenuously denied saying anything about the voting papers she had received; and he denied taking the voting papers away with him. He said - "she must have made that up" and "she is lying" when asked about the evidence that Mrs Turangakino had given.

Mrs Turangakino in her evidence related how Mr Akatika had told her that he was going to Australia. When questioned about this Mr Akatika admitted visiting Mrs Turarigakino on 12 March - on that date he dropped off to her a newsletter. He admitted calling on her again on 15 March; and departing for Australia on 17 March. Now the significance of those dates is that Mr Akatika says he didn't know about Australia until late on the morning of 17 March and Mrs Turangakino therefore could not know anything about Australia following his visit to her on 15 March. That of course would be correct. But Mr Akatika admits seeing Mrs Turangakino with the voting papers and these were only posted out on 15 March. It would appear that Mr Akatika is mistaken when he says that the second visit was on 15 March since Mrs Turangakino could not have had the voting papers which Mr Akatika admits he saw that she had received. On the other hand it is clear that Mrs Turangakino is mistaken when she says that the meeting with Mr Akatika was on 21 or 22 March. This was because Mr Akatika went to Australia on 17 March and did not return until 23 March.

In answer to Mr Mitchell's close questioning which was more in the nature of the cross-examination of a hostile witness (undeclared), Mr Akatika said:

"I did not tell her I was going to Australia.

I did not take the voting papers."

In cross-examination by Mr Puna he said:

"I did not pick up voting papers from her letter box.

I did not interfere in any way with her voting."

Summarising the evidence given by Mrs Turangakino and Mr Akatika, two of the witnesses called by the Petitioner, it is simply not possible to determine how those two votes were exercised by Mrs Turangakino. There is no doubt that she foolishly signed both her own and her husband's voting papers. Whether Mr Akatika prompted or influenced her to do that foolish act it is not possible to determine from the evidence presented. Mrs. Turangakino says she was so influenced. Mr Aratika says she is lying. There is of course the third possibility. That is that Mrs Turangakino having illegally completed her husband's voting paper now seeks to avoid responsibility for that indiscretion and for the dire consequences as related by her husband by laying the blame on Mr Akatika, who on oath has denied any responsibility. The difficulties facing the Court in arriving at a definitive conclusion given this conflicting evidence are obvious.

The second witness called by the Petitioner was Mr Teremaki Munokoa. He claimed that while he was alone at home on 17 March 1994 he was visited by Mr Akatika who asked if Mrs Munokoa had yet voted. When advised that she had not, Mr Munokoa gave evidence of the following conversation between them:

"He said his job was to go after people who were going to vote and to explain. I said - good on you. He asked for the papers. I said - on the table. He asked for the white envelope to put the number in his book. My wife had opened the envelope the day before. He got the white envelope out - opened it - and wrote the number down. He then asked me to fill out the papers for my wife. I told him it was my wife's and not mine. He did not tell me which party to vote for. He said when your wife comes home get her to vote - no."

Mr Munokoa is not an elector - his wife is. When questioned about this evidence Mr Akatika stated as follows:

"I didn't ask to see the voting papers.

He didn't push the papers over to me. I just advised general instructions. I did not write down a number in his house.

I did not ask him to fill in his wife's vote.

I did not see the voting papers."

In summary the evidence of Mr Munokoa, a non- voter - is not corroborated in any way - and in fact is denied by Mr Akatika. However one must ask whether the evidence of Mr Munokoa even if unchallenged justifies a finding of electoral malpractice, warranting a declaration that the election be declared void; that the Petitioner be declared elected; or that alternatively that a new election be ordered as prayed for in the Petition.

The final witness called by Mr Mitchell on behalf of the Practitioner was a Mr Joseph Kaa who was the campaign manager for the Cook Islands Party in the Overseas Electorate, i.e. the party to which the First Respondent, Dr Williams, belonged.

Mr Kaa. was questioned very closely on a set of instructions that he had prepared for the guidance and assistance of his campaign workers. He said a total of about 30 copies wore printed and lie thought about eight had been distributed, Mr Kaa impressed with his understanding and appreciation of the differences that applied to applications for registration in a Cook Island electorate, and in the Overseas electorate. The only criticism Mr Mitchell endeavoured to support was the inclusion of the requirements or qualifications for Cook Islands electorates in, the instructions to Mr Kaa's assistants working in the Overseas Electorate. In other words -not that the information included was wrong - rather too much information that was factually correct, had been included.

All those witnesses as I have previously were, called by the Petitioner. The Respondent called no. evidence. Nor did the Second or Third Respondents call additional evidence, although of course they were each called by the Petitioner to give evidence.

I turn now to the third ground of the Petition, viz. "votes were cast which your Petitioners say wore invalid". While Mr Mitchell made general submissions in support of that unidentified and unspecified complaint, no evidence, at all was called to support the allegations. It was acknowledged that the Petitioner had the opportunity before the closing of the Rolls to object to any electors he considered to be unqualified or wrongly included in the Overseas Electorate for whatever reasons. The Petitioner did in fact exercise those rights prior to the closing of the Rolls. For those obvious reasons, no evidence was produced by the Petitioner to support the general allegations included in the third ground of the Petition.

It is on these facts that the Court must now apply the law relevant to the evidence presented and to the circumstances described. The is ample authority upon which the court can rely. Elections in the Cook Islands have in the past been prolific in the numbers of Electoral Petitions for the Court to determine following this 1994 general election

This Petition has been filed by the Petitioners pursuant to the provisions of Section 74 of the Electoral Act 1966. Section 77 of that Act details the "powers of Judge on enquiry". However S.78 provides that in exercising those powers a Judge may disregard certain irregularities - this section states as follows:

"No election shall be declared void by reason of any irregularity ... if it appears to the Judge that the election was conducted in accordance with the principles laid down in and by this Act and that the irregularity, failure or mistake did not affect the result of the election."

However Mr Mitchell asserts that the irregularities he asks the Court to infer cannot be cured by being disregarded tinder the provisions of Section '78. He associates the evidence presented and the inferences he asks the Court to draw, as equating with the findings of this Court in the Mitiaro Electoral Petition (1979) 1 NZLR 1. He goes oven further and says that while he does not allege corruption, a corrupt intention was nevertheless manifestly present from the facts or to be inferred from them. He suggested from the evidence that the election was conducted so badly that as a result it was not hold substantially in accordance with the Electoral Act and must therefore be declared invalid and void.

Mr Mitchell has also referred to the cases of re Te-Au-O-Tonga Election Petition (1979) 1 NZLR 29; and Masters v Arthurs (1989) an unreported Judgment of Roper C.J.

I accept without question the principles enunciated in those three Judgments. But each of those judgments have as their source findings of fact which fully justify the application of the principles and the reasons for the Judgments that followed.

In this case, however, the Petitioners have presented two witnesses - one is an elector, whose uncorroborated rated evidence is challenged; and who admits to forgery of her husband's voting papers. The second is a non-elector whose uncorroborated evidence is once again challenged.

That is the extent of the Petitioner's evidence from which the Court is asked to infer widespread corrupt practices throughout Australia and New Zealand.

This the Court will not do. There is absolutely no basis on which. to draw the inferences suggested or to apply the legal principles from the Authorities cited.

The Petition is disallowed and consequently is dismissed.

All questions as to costs are to be the subject of Memoranda from Counsel

DILLON J