Robati v Piho (No 2) [1994] CKCA 7; CA 194 (7 July 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
C.A. NO.1/94

IN THE MATTER
of Sections 74 & 82 of the Electoral Act 1966
and the Constituency of Rakahanga (No 2)

AND BETWEEN

PUPUKE ROBATI
APPELLANT

AND

PIHO RUA PIHO,
A Candidate and five electors of the Constituency of Rakahanga
FIRST RESPONDENT

AND

TERE MATAIO
Of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

SOLOMONA ELIKANA
Returning Officer for the Constituency of Rakahanga
THIRD RESPONDENT
(No 2)

Coram: Sir Ian Barker (Presiding)
Hillyer JA
Henry JA

Counsel: W.D. Baragwanath QC & M.C. Mitchell for Appellant
S.B.W. Grieve & T.G. Nicholas for First Respondents
Solicitor-General, J. McFadzien for Second & Third Respondents

Hearing: 6, 7 July 1994
Date of Judgment: 7 July 1994

(ORAL) JUDGMENT OF THE COURT DELIVERED BY SIR IAN BARKER

The judgment which I now give is the judgment of the Court. We are giving a decision now because a by-election has been called for later on in this month and it is therefore necessary to have a speedy determination of the question of the case stated. We shall give detailed reasons for our judgment in due course.

This is an appeal by way of case stated pursuant to section 82(2) of the Electoral Act 1966 ('The Act'). It is an appeal from the judgment of Dillon J given in the High Court of the Cook Islands on 31 May 1994. The Judge was concerned with an election petition in the Constituency of Rakahanga.

We find errors of law as follows:

1. In holding that it was not lawful for the presiding officer to apply in the case of illiterate persons at the polling booth the procedure prescribed by the Manual of instructions for blind voters.

2. In investigating without leave having been given and without reasonable notice having been given a ground of complaint not specified in the petition - i.e. alleged irregularities relating to house votes.

Section 74(4) requires notice of any ground to be given either in the petition or in an amendment duly made before jurisdiction exists for investigating any alleged irregularity. Looking at the determination of the Court, we find that it has not been established that there have been serious breaches of the secrecy provisions of the Act. We also determine that the election of the appellant and the election for the constituency itself cannot be said to be void because of the breaches of the secrecy provisions.

We are not satisfied however, on the information presented before us that the Judge is now functus officio. The petition would therefore appear to remain extant and requiring determination of the remaining complaints alleged in the petition.

We are conscious of the practical difficulties which result if this is the case but this Court's jurisdiction is limited to making the determination just given because of the restrictions on the right of appeal laid down in the 1993 amendment to the Act. We direct the Registrar to inform the Chief Electoral Officer of this judgment. The by-election called for the 28 July 1994 may or may not now proceed depending on any further action taken on the petition.

We invite memoranda from Counsel as to costs. Our determination on costs will be included in the reasons for judgment to be delivered.

BARKER JA
HILLYER JA
HENRY JA