Wigmore v Matapo [2005] CKCA 1; CA 14.2004 (19 August 2005)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
(CIVIL DIVISION)

C.A. NO. 14/2004
(MISC.NO. 74/2004)

IN THE MATTER

of Section 102 of the Electoral Act 2004 and
Section 54 of the Judicature Act 1980-81

BETWEEN

ROBERT WIGMORE
Appellant

AND

TIKI MATAPO
First Respondent

AND

NOOAPII TEAREA
Second Respondent

AND

ANI PIRI
Third Respondent

AND

TAGGY TANGIMETUA
Fourth Respondent

AND

BRIAN TERRANCE HAGAN
Fifth Respondent

Coram: Barker JA (presiding)
Henry JA
Smellie JA

Counsel: R E Harrison QC and C Little for Appellant
W Akel for Respondents

Hearing dates: 10, 11 August 2005
Date of judgment: 19 August 2005

JUDGMENT OF THE COURT

Solicitors: Charles Little PC (Avarua)
T Arnold (Avarua)

Introduction

[1] This appeal and cross-appeal are from judgments of Hingston J given in the High Court at Rarotonga on 9 and 10 December 2004. The Judge was dealing with a petition in respect of the election of a Member of Parliament for the Titikaveka constituency as part of the Cook Islands general election held on 7 September 2004. The second, third, fourth and fifth respondents have indicated to the Court that they will abide its decision.

[2] Three candidates stood for the Titikaveka constituency, the appellant, the first respondent and an independent candidate. The appellant was the sitting member and a Cabinet Minister in the previous Government. The declaration of result of poll, pursuant to s 78 of the Electoral Act 2004 ("the Act"), was that the appellant had won by 6 votes.

[3] The first respondent challenged this outcome by electoral petition pursuant to s 92 of the Act. His original petition was dated 21 September 2004. His amended petition was dated 29 September 2004. Broadly, the amended petition fell into two parts. Sections A-E challenged both the official conduct of the election, and the votes cast by named electors. Sections F-G alleged corrupt practices of treating and bribery by the appellant. The petition sought in effect that the seat be declared properly held by the First Respondent.

[4] The amended petition alleged the "treating" of individuals on election day by the provision of food and drink to voters before they had voted. It further alleged bribery in 4 specific respects. Hingston J, in the decision delivered on 10 December 2004 ("the second decision"), rejected the allegation of treating. Three out of the four allegations of bribery were likewise rejected, but the allegation of bribery of certain piggery owners whose properties were within the constituency was upheld. The ultimate outcome was that the election of the appellant was declared to have been void. This finding of the Judge is the principal matter raised in the appeal. If the appeal on the bribery issue fails, then the allegations regarding individual voters and their qualifications will become irrelevant.

[5] The bribery allegation was amended at the commencement of the hearing of the petition to "bribery by improper use of Government money". There was no direction that the first respondent file a second amended petition recording the effect of the various amendments from time to time. However, it seems quite clear that the parties and the Judge knew what were the issues involved at the hearing. No disadvantage resulted from any failure of the first respondent to file a second amended petition.

[6] The amended petition distinguished between various categories of case and grounds of challenge to the particular electors whose votes the first respondent wished to challenge. The first and most extensive ground of challenge was headed "A. Objection Procedure". It complained in various respects about the decisions and/or inaction of the Chief Registrar of Electors ("the Registrar") in respect of purported objections by the first respondent to the presence on the roll of names electors, lodged by the appellant pursuant to s 24 of the Act. The electors named in Section A of the amended petition included Donna Engu, Rima Rimamotu, Shannon Rimamotu and Rouru Ringia, but did not include Jill Robertson (who was not on the roll for the constituency and who had voted by declaration).

[7] After outlining the complaint about the Registrar’s alleged defaults in Section A, the amended petition, in Sections B-E, directly challenged the qualifications to vote of named individuals under separate and distinct headings. Specific challenges to enrolled electors on the grounds of alleged lack of qualification to vote were advanced in Sections B and C. A separate specific challenge to certain votes by declaration on the grounds of lack of residential qualification to vote was set out in Section D (being the sole reference to Jill Robertson by way of a challenge to her declaratory vote).

[8] The first respondent, at the commencement of the hearing of the petition, withdrew numerous allegations relating to individual electors. These were later reinstated in respect of a group of 11 electors, including Donna Engu, Rima Rimamotu, Shannon Rimamotu and Rouru Ringia.

[9] Hingston J’s findings in the decision of 9 December 2004 ("the first decision") in relation to particular voters can be summarised as follows insofar as it relates to issues before this Court.

[10] In respect of Rouru Ringia, Hingston J treated her as having re-qualified to vote in the constituency by the time she cast her vote, by virtue of s 22 of the Act. He invalidated her vote nonetheless because an objection to her being on the roll was well-founded at the time it was made and that "Mr Matapo took the proper steps and was let down by the system". In respect of Rima Rimamotu and Shannon Rimamotu, whose registrations were invalid when made but who may have been entitled to a special vote by declaration on polling day, the Judge applied his s 99 reasoning and invalidated their votes. The appellant appeals against the Judge’s findings in respect of these three electors.

[11] Hingston J rejected a direct challenge on residential grounds to the vote cast by Donna Engu. His judgment does not deal at all with the pleaded challenge to the declaratory vote of Jill Robertson. The first respondent cross-appealed in respect of both those electors.

[12] The overall outcome was that Hingston J declared invalid the votes of 8 electors, giving the first respondent an effective majority, on a notional recount, of 2 votes (on the assumption that those disqualified by Hingston J had voted for the appellant).

Appeal and Cross-Appeal

[13] Section 102(2) of the Act confers a right of appeal by way of case stated "on a question of law only". Although the notice of appeal was filed on 20 December 2004, leave to appeal was not given by the High Court until 10 May 2005. The case stated was signed by Hingston J on 15 June 2005.

[14] The appellant sought an urgent hearing of the appeal on the grounds that it was concerned with the identity of the proper member of Parliament for the Titikaveka. If the appeal were to succeed, then the identity of that member would change with the appellant being no longer disqualified from acting in that role. A deferral of the case until the next scheduled setting of the Court in Rarotonga in November 2005 was to submitted to be not in the public interest.

[15] After hearing counsel at a telephone conference, Barker JA, sitting as a single Judge of Appeal, granted the application for an urgent fixture. At a subsequent conference with Barker JA in Auckland, counsel for the first respondent, who had not been fully instructed at the time of the telephone conference, indicated that his client wished to cross-appeal in respect of Hingston J’s treatment of the voters Engu and Robertson referred to earlier. The appellant did not object to the filing of a cross-appeal which is authorised by the Judicature Act. Counsel agreed that it was not necessary to seek an amended case stated from Hingston J, since all relevant material would be before this Court. By consent, the appeal was heard in the courthouse of the High Court of New Zealand at Auckland on 10 and 11 August 2005.

[16] The Court has serious reservations about the form of the case stated. It comprised what appears to be extracts from the two decisions and described as "reasons and findings by way of summary only", preparatory to formulating a series of questions. Annexed as part of the case was the entire High Court record, including material of no relevance to the appeal issues. That approach is quite unacceptable, and we draw attention to the responsibility of a trial Judge and counsel to ensure the proper procedure is followed.

[17] The framing of the questions of law also left much to be desired. In respect of the first decision relating to the eligibility of voters, eight separate questions were posed, which properly could have been represented by two or possibly three concise questions identifying the real legal issues. In respect of the decision on bribery, there were 10 questions, some of which also contained alternative formulations and had a degree of repetition and prolixity. The matters effectively raised could have been reduced to a few concise propositions of law. This has necessitated a re-framing of what we see are the issues determining the appeal.

[18] This Court earlier drew attention to the requirements of the case stated procedure in Puna v Woonton (Appeal 10/04), approving the discussion by Fisher J in Auckland City Council v Wotherspoon [1989] NZHC 705; [1990] 1 NZLR 76. At p 87, Fisher J approved the dictum of Henry J in Conroy v Patterson [1965] NZLR 790, 791 which bears repeating as an indication both of the way in which this Court must approach a case stated appeal and of the way in which a case stated should be drawn:

The case on appeal should accordingly contain all findings of fact relevant to the question of law, which question should itself be properly defined together with the grounds upon which that question was determined. In the present case a copy of the points of law raised by counsel for the appellant have been appended together with a copy of the Magistrate’s notes of evidence and a copy of his judgment. These appendages should not be made part of the case on appeal. The position is different in a general appeal under s 119 which is a rehearing and so requires a copy of the entire record. Provision has been made accordingly under that section for the record to be placed before the Supreme Court.

"On an appeal by way of case stated on a point of law only the Court is concerned with the relevant facts as found and the grounds for determining the particular question of law, which question itself must be properly stated. The Supreme Court is not further or otherwise concerned with the evidence or the other findings which were made. In my respectful opinion, the position is correctly stated by Paull J in McGee v George (1964) 108 SJ 119, where the learned Judge says that the object of appeal by way of case as stated is that the Court should look only at the case stated and the facts as found. Reference may also be made to 25 Halsbury’s Laws of England, 3rd ed, p 254, para 476. The evidence as a whole is not material except in rare cases where the question is whether or not the finding was supported by the evidence. Even in that event, if there be a conflict of evidence or some of the evidence has not been accepted by the tribunal determining the facts, such evidence is irrelevant to the appeal and should not be included. The Court on appeal is concerned only with the facts which have been found by the tribunal from which the appeal is made. The parties and the Supreme Court are bound by such findings of fact, so any other evidence of and reference to facts not found are outside the scope of the appeal and should not be included in the case stated."

[19] Counsel for the appellant justified the inclusion of the notes of evidence as part of the case stated claiming this was what was called by Henry J in the above citation, as a "rare case". That is, counsel submitted, that Hingston J’s decision on the bribery allegation had no evidence to support it. The limitations on this ground were expressed by Fisher J in Wotherspoon at 88 as follows. We agree with the learned Judge:

The ground is limited to the question whether there is any evidence to support a positive factual finding in favour of the defence. It is not concerned with the question whether the Court at first instance had correctly chosen between conflicting items of evidence, rejected evidence on a matter of credibility, declined to make a positive factual finding as to primary facts, or made a positive finding as to primary facts in circumstances where, had it been approaching the matter de novo, the appellate Court might have regarded the evidence as insufficient as a matter of weight. In particular, it is important to distinguish between the situation in which there had been no evidence to support the original Court’s finding and the situation in which there is merely argument over the sufficiency of the evidence which was in fact adduced. That principle was expressed by Prendergast CJ in Nankivell v O’Donovan (1895) 13 NZLR 60 at pp 61-62 as follows:

"In substance, the question is whether the sufficiency of the evidence adduced in support of an issue is a question of law. Certainly it is not: it is a question of law whether any evidence has been adduced upon which a Magistrate’s finding could be based, but it is not a question of law that, such evidence as was adduced being all one way, and tending to prove a fact, the Magistrate was bound to accept it as sufficient." (Emphasis added.)

[20] Because of the "no evidence" claim, the Court permitted counsel to refer to the evidence relevant to the impugned factual findings.

Appeal against the finding of bribery

[21] Appeals to this Court are confined to errors of law (s 102(2)).

[22] In the forefront of the appellant’s challenge to the bribery determination is the contention that there was no evidence upon which certain crucial findings of fact could be made and/or no proper basis upon which certain inferences adverse to the appellant could be drawn. If there was no evidence or it is inconsistent with and contradictory of the determination then errors of law would be established: see Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 at 36 per Lord Radcliffe.

[23] The Supreme Court of New Zealand in the as yet unreported case of Bryson v Three Foot Six & Ors SCIV 24/2004 [2005] NZSC 34 Judgment 16 June 2005 (Elias CJ, Gault, Keith, Blanchard and Tipping JJ), reasons given by Blanchard J, the correct approach to appeals on questions of law is discussed. At paragraph 21 of the judgment it is stated:

Other than in the exceptional situation to which Lord Griffiths refers, the task which the lower court is engaged upon is the application of the law to the facts before it in the individual case.

It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision-maker misdirects itself on the law.

And later, at paragraphs 27 and 28 the following appears:

[27] It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe’s preferred phrase, "the true and only reasonable conclusion contradicts the determination", faces a very high hurdle. It is important that appellate Judges keep this firmly in mind. Lord Donaldson MR has pointed out in Piggott Brothers & Co Ltd v Jackson the danger that an appellate court can very easily persuade itself that, as it would certainly not have reached the same conclusion, the tribunal which did so was certainly wrong:

It does not matter whether, with whatever degree of certainly, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal. If it cannot do this, it should re-examine with the greatest care its preliminary conclusion that the decision under appeal was not a permissible option ...

[28] It should also be understood that an error concerning a particular fact which is only one element in an overall factual finding, where there is support for that overall finding in other portions of the evidence, cannot be said to give rise to a finding on "no evidence". It could nonetheless lead or contribute to an outcome which is insupportable.

[24] In Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374, the Privy Council expressed the same view when it recorded, at p 385 of the report:

The decision will depend upon the evaluation of many facts and there will be many borderline cases in which similarly instructed minds may come to different conclusions. It is in such situations that an appeal court must not interfere and it is in this sense that the decision is said to be one of fact.

[25] There are other formulations of the approach to be adopted, all to the same effect, such as that given by Viscount Simonds, also in Edwards v Bairstow at p 29, that what was necessary was "a view of the facts which could not reasonably be entertained".

[26] We apply the law as expressed in these leading authorities to our consideration of the bribery issue.

[27] The background to this part of the appeal is set out in the following paragraphs from the second decision:

From 2003 through to 2004 complaints of eye infections occurring after people used or bathed in the lagoons fronting the Titikaveka electorate area were becoming common. The general public in the area were becoming concerned and publicity mounted to the extent that the Prime Minister, other Ministers and Government officials attended a public meeting at the Kent Hall in Titikaveka on 21 June 2004 to discuss pollution by the various pig farms in the Titikaveka area. After the meeting a ban was placed on swimming within 200 metres of the Akapuao Stream.

Previous Government action had resulted in overseas scientists being consulted as to water quality and health problems with a view to identifying the source of the problem. A task force had been put in place and one aspect that was mentioned was the effect of waste from warm blooded animals. This turned the focus towards the many piggeries in the Titikaveka area particularly as some were discharging waste directly into adjacent streams, these streams flowing into the lagoon.

The outcome of the meeting was Dr Woonton Prime Minister publicly announced that Mr Tom Wichman a local consultant had been commissioned by the Government to look into the pig waste issue checking the location and size of piggeries in Titikaveka, Tikioki and Vaimaanga areas. Water quality in the lagoon and other sites around Rarotonga was being monitored samples being sent to New Zealand for testing.

Mr Wichman contended that some piggeries needed digesters and he proceeded without Government finance to erect a digester on the property of Walter Marearai. The Government was concerned by what was happening and authorised Mr Wichman to proceed with the erection of digesters where needed to process the pig waste; to this end the Minister of Finance in a memo to Cabinet requested a $40,000 transfer of appropriation from the M.O.W. Social Responsibility Fund to fund the erection of digester. The $40,000 was transferred from the $120,000 allocated to "Te Puka Septic Tanks", each was to cost in the vicinity of $6,000. These digesters were to be supplied at no cost to the piggery owner.

It is this transfer of funds for this project and the disposal of same that the Petitioner relies upon in his allegation of bribery of the piggery owners to gain their vote.

[28] The passages of the judgment under appeal in which the appellant says the errors of law occur are pp 10, 11, and 12 of the second decision, reading as follows:

The evidence before me dealing with this public health issue does not establish the pig waste has or had any connection with the health/eye problems; this is confirmed as late as 25 September (see report on Piggeries, Cook Islands News Exhibit "F" Mr Ata Hermon’s evidence, exhibit "J" produced to the Court on 12.10.04). Having found no connection other than general acceptance that animal waste causes pollution, I ask myself why the concerted effort to get these digesters built in the period leading up to the election. To answer this question I make the following observation. The health problem had been in evidence since 2003 but it was much closer to the elections when some Titikaveka people engendered publicity. This resulted in a committee getting under way in Government and the attendance of the Prime Minister, Deputy Prime Minister, and three members of Cabinet at a meeting in Titikaveka, where piggery owners were told the Government would take whatever steps were needed to deal with the waste problem. The end result of this was the digester scheme. The evidence before me demonstrated that the Government and Mr Wigmore were under pressure on this issue.

I am of the view that the actions of the Government was [sic] a response to the pressure and publicity about the health/water problems. However, the absence of proper identification of the cause of the problem means there was nothing to justify the spending of $40,000 on the digester. There was no credible explanation given for this spending. It follows that there may have been another reason for the spending. I believe that the spending of the $40,000 was to lessen the pressure and adverse publicity which could have impacted on a very marginal seat. I note that the $40,000 was not approved for transfer until late July. The elections were some six weeks later. I believe this cynical use of power to be one of the very corruptions that s 88 of the Act requires the Court to address.

And on p 12, the Judge added:

I believe it was intended that the spending on the digester’s project was to have effect on more than the six recipients; my findings above demonstrate my beliefs that it was aimed at the wider voting public of Titikaveka to ease the pressure and show the electorate as a whole that the Government, and by inference their Member of Parliament, was doing something.

This being my view, I find that the provision and disposition of the $40,000 paying for the erection of the digesters for six piggery owners, was part and parcel of corrupt bribery insofar as it affected each of the recipients of free digester. This was a corrupt practice committed in relation to the election for the purpose of promoting and procuring the election of Robert Wigmore and could have affected the whole electorate. It so extensively prevailed that it is reasonable to suppose the result of the election was effected [sic] in terms of S 98(2).

[29] On the issue of fact-finding, counsel for the appellant contended that the trial Judge ignored the background. In particular the piggery pollution problem, which might have been the cause of the eye/health problem and was the most likely explanation for the pollution of the lagoon which was adversely affecting tourism. Further, that the problem had been getting progressively worse since first identified in 2003. The passages from the judgment, set out in paragraph [27] however, provide a summary of all those issues, which summary Mr Harrison accepted as accurate.

[30] The facts referred to by the Judge as leading to the inference of bribery can be summarised. There was rising publicity and pressure to do something about the lagoon/health problem. On 15 June, the date of the general election was announced as being 7 September. On 21 June, a public meeting was held as a result of which Mr Wichman was commissioned to look into the pig waste issue. He concluded the piggeries needed digesters. He was authorised to proceed. On 28 July, $40,000 was allocated by Cabinet to be spent on providing the digesters at no cost to the land owners. There was no evidence that the pig waste in fact was the cause of the health/eye problem and therefore there was no compelling urgency at that time to provide digesters to alleviate the specific problem.

[31] That view of the facts clearly was open to the Judge. Mr Harrison did not seriously contend otherwise, apart from stressing that there was a problem with pollution which needed to be addressed and that pig waste obviously was a contributing factor to that. The Judge, however, was alert to that and his reasoning effectively was that in the absence of an established causal connection between the pig waste and the eye/health problem, the need to provide and effect a gift of some $6000 to each of six electors at that time was unexplained. That was the underlying basis for drawing the final adverse inference.

[32] Although the Judge’s conclusions could have been expressed more felicitously, nonetheless having been taken to the relevant passages in the record by counsel for each party, we are satisfied that there was evidence to support the basic facts relied upon by the Judge.

[33] The critical issue in the appeal, however, concerns the inference that the Judge drew to the broad effect that the reason (expressed almost as the only and dominant one) for the expenditure was not to address the problem but "to lessen the pressure and adverse publicity which could have impacted on a very marginal seat", and it was on that basis he characterised it was a " ... cynical use of power", and "one of the very corruptions that s 88 of the Act requires the Court to address".

[34] Before proceeding to examine the validity or otherwise of the inferences the Judge drew, we deal first with the question of whether (as Mr Harrison submitted) the wrongful intention or motive must be the dominant one.

[35] Donne CJ in Mitiaro Election Petition [1979] 1 NZLR S1, discussed the issue, but because he had already found a dominant motive to be present, what he had to say was obiter dicta. The passage is to be found at p S12, and reads as follows:

As I have said, I find the dominant motive to have been the achievement of political popularity and not charity. Furthermore, it may be that the "governing motive" approach outlined in Rogers puts the matter too favourably to the first respondent since there are recent decisions of high authority holding, in comparable fields of electoral law, that it is sufficient in cases of mixed motives if one of the purposes of the scheme was the designated illegal purpose: see, for example, Director of Public Prosecutions v Luft [1976] UKHL 4; [1976] 3 WLR 32; [1976] 2 All ER 569 and the note thereon in (1976) 39 MLR 730, 731-732. In Director of Public Prosecutions v Luft, a criminal case under the representation of the People Act 1949 involving allegedly illegal campaign expenditure, the House of Lords held that in assessing the liability of the person incurring the disputed expenditure, it was sufficient if one of the reasons which played a part in inducing the person to incur the expenditure was his desire to promote or procure the election of a candidate. Earlier cases involving a "dominant intention" test were rejected. Lord Diplock said:

"To speak of a dominant intention suggests that a desire to achieve one particular purpose can alone be causative of human action; whereas so many human actions are promoted by a desire to kill two birds with one stone" (ibid, 41; 574).

I have no doubt, as stated earlier, that the dominant purpose of the venture was to gain political support: but on the authority of Director of Public Prosecutions v Luft it appears that so long as the "political" purpose was one of the objectives, that, in terms of s 70, would be enough and that this existed here is something of which I am certain.

[36] We have considered the decision of the House of Lords in the Luft case and find that the leading judgment delivered by Lord Diplock and was concurred in by the four other law lords, being Lords Salmon, Edmund-Davies, Fraser of Tullybelton, and Russell of Killowen. Lord Fraser of Tullybelton, in a short supplementary judgment, said that he would be of the same view even if the intention to prevent the election of a particular candidate was "but an insignificant part of a person’s motives in persuading electors not to vote for that candidate".

[37] We, of course, would not be bound by the Mitiaro decision, even if the views expressed by the learned Chief Justice had been part of the ratio decidendi. We are persuaded, however, by the logic of Lord Diplock’s approach in the Luft case, and by a parity of reasoning hold it to be the law of the Cook Islands, that in a case such as this where there may well have been mixed motives (on the one hand to address the pollution problem, but on the other, to advance the prospects of re-election of Mr Wigmore), it is sufficient if one significant purpose was political.

[38] Having disposed of that matter, we now return to a closer consideration of the appellant’s contention that there was no basis upon which the Judge could draw the inference that a purpose of the expenditure offended one of the provisions of s 88 and was thus corrupt (s 2 definition of "corrupt practice").

[39] In his written submissions, counsel for the appellant (at paragraph 31) said:

There can be no doubt, the election and timing of the decision aside, the Cabinet decision under attack was entirely lawful and for what could otherwise be an entirely proper, if not indeed compelling, public purpose.

[40] Mr Akel, for the first respondent, met that submission by contending that "the election and timing of the decision" is in fact crucial. Halsbury and authorities cited to us support the stance that Mr Akel took on this matter. For example, in 15 Halsbury’s Laws of England (4th ed REI), dealing with Elections at paragraph 689, the following appears:

The imminence of an election is an important factor to be taken into consideration in deciding whether a particular act of charity amounts to bribery. A charitable design may be unobjectionable so long as no election is in prospect, but if an election becomes imminent the danger of the gift being regarded as bribery is increased. It has been said that charity at election times ought to be kept in the background by politicians. The question is one of degree. An isolated small donation on the occasion of a birth or death may not be bribery, although such gifts on an extensive scale would lead to the inference that they were given to influence voters.

[41] To the same effect is the statement of Ridley J in Kingston-Upon-Hull Central Division Case, (1911), 6 O’M v H 372 at 374, where the Judge said:

... You assume for the moment that a man forms a design which at the time is unobjectionable because no election is in prospect, for that is the point; yet, if circumstances alter, and an election becomes imminent, he will go on with the design at his risk, and if he does so he will be liable to be proved guilty of corrupt practices; that is to say that he has done a thing which must produce an effect on the election contrary to the intention of the Act of Parliament.

[42] That case was cited with approval in the pertinent Australian authority of Scott v Martin [1998] 14 NSWR 663. The facts in that case bear some analogy to the present case in that the money which was distributed in the run-up to the election was made available by the executive of the Government. But there is a difference in that the candidate in question criss-crossed his electorate handing out cheques to all manner of charitable organisations within days of the poll. In that case, the Judge said this, at p 672, lines (e) to (g):

At all material times he was a candidate for election. He had no official position in Government. In the ordinary case no criticism can be levelled at a man who makes submissions and requests for funds for community associations. It is for the Government, through its ministers, to decide whether those requests should be met. In making those decisions the social needs should be uppermost in the mind of the person who makes the decision.

This was not an ordinary case. All of these grants were made during the election period, after the writs had issued. The issue and delivery of the cheques had an air of urgency – Port Stephens, according to a Government file, was one of the "special" electorates. One infers that its speciality resulted from the projected closeness of the coming election. In those circumstances, the use of public money by a candidate of the same political party as the Government (a gift not open to his opponents) involved a risk of breach of the Act. [Underlining added.]

[43] We would also refer to an early New Zealand case that was relied on by Donne CJ in the Mitiaro case. The decision is the Wairau Election Petition [1912] NZGazLawRp 37; (1912), 31 NZLR 321. There the Court (Williams and Chapman JJ) said:

A corrupt intention is an intention on the part of the person treating to influence the votes of the persons treated. The question of intention is an inference of fact which the Court has to draw ... If in any case, looking at all the circumstances, the reasonable and probable effect of the alleged treating would be to influence the result of the election or to influence the votes of the individual voters, it might well be inferred that it was the intention of the person treating that this effect should follow.

[44] To similar effect is the decision of Hosking and Stringer JJ in the Eden Election Petition [1923] NZLR 644. At p 659, the Court endorsed a statement in Halsbury, a portion of which reads:

A corrupt act is not less corrupt because it is done a long time before the election; but in determining whether it is reasonable to conclude that an act is done with a view to influencing votes the element of timing becomes exceedingly material.

[45] Bearing in mind these authorities and given Hingston J’s factual findings, we reject Mr Harrison’s contention that the inferences drawn were insupportable. On the contrary, we are of the view that it was well open to the Judge to conclude that a significant motivation in respect of the expenditure was to influence the outcome of the election in the Titikaveka electorate. In reaching this view, we have taken into account the evidence relied upon by counsel in making their respective submissions on this "no evidence" point, as well as the factual background we have earlier discussed.

[46] It follows that we also endorse the conclusion expressed in the passages from page 12 of the judgment recorded earlier (paragraph [3] above). Section 98(2) of the Act referred to there reads:

Where it is found by the Court at the hearing of an election petition that corrupt or illegal practices committed in relation to the election for the purpose of promoting or procuring the election of any candidates thereat have so extensively prevailed that they may be reasonably supposed to have affected the result, the candidate’s election shall be void.

[47] The waste from the piggeries was, at the time, a suspected source from which the pollution of the lagoon (with its adverse affect on tourism and possible health hazards), emanated. The six pig farmers each received a free capital asset but the electorate as a whole, it "may be reasonably supposed", welcomed the action taken.

[48] Next, we address the contention of counsel for the appellant that the Judge failed to direct himself on the onus and standard of proof.

[49] The complaint regarding the onus of proof is based primarily on the passages recorded above and in particular the Judge’s statement commencing at the top of p 11 of his judgment, re:
:

I am of the view that the actions of the Government was [sic] a response to the pressure and publicity about the health/water problemwever, the absence of proper identification of the cause ofse of the problems means that there was nothing to justify spending $40,000 on digesters. There was no credible explanation given for this spending. It follows that there may have been another reason for the spending.

[50] Mr Harrison, referring to that passage at paragraph 21.6 of his written submissions, said:

• 21.6 This reasoning effectively placed an onus on the appellant, not merely to "justify" a Cabinet decision (which he had not himself initiated), but indeed to identify and prove "the cause of the health/water problems". This is tantamount to holding that the established causal relationship between the discharge of waste from piggeries and the pollution of certain streams and the lagoon – a proved serious and long standing pollution problem, if not a proved cause of health problems in the area – was, for some unexplained reason, entirely to be ignored as a potential justification for the Cabinet’s decision.
  

[51] We do not think the decision is to be read in that way. In a situation where dual or mixed outcomes are intended from a particular action, the legitimate and prohibited purposes exist side by side. The trial Judge was entitled to look for a reason that would rebut the inference arising from the timing and lack of justification (in that the piggery discharges had not been identified as the cause of the health problem), for this expenditure six weeks out from polling day. That approach did not involve a shifting of the overall evidential burden.

[52] Although the way the judgment is worded, on a first reading, could open itself to the onus point being taken, we are satisfied that read as a whole, there is no basis for contending that the onus was improperly placed on the appellant.

[53] It was simply a situation where, on the evidence the Judge was prepared to accept as credible, he drew the inference that a significant reason for the expenditure was political.

[54] That finding of fact inevitably led to the finding of a corrupt practice.

[55] Had the Judge been persuaded that the situation was so serious and urgent that remedial action had to be taken immediately and that was the sole reason for the expenditure, the inference would not have been drawn. In that event, the petitioner would have failed to prove his complaint. But that was not the way the Judge saw it. Having been taken to the evidence, we can see why, and although our approach differs from his, we are not persuaded that he fell into error in relation to the onus of proof.

[56] Dealing next with the standard of proof. Mr Little, who appeared with Mr Harrison and represented the appellant at first instance, confirmed that he made submissions on the standard of proof, pointing out the need for a high standard in relation to a serious charge like bribery. The Judge said, at p 10 of his judgment:

I have carefully weighed up the submissions of counsel as well as the evidence before the Court.

He had earlier recorded that counsel had argued that the petitioner had not adduced evidence to the required standard in law.

[57] Although it may have been preferable for the Judge to have expressly directed himself on this point, we are left with no concern that he failed to apply the correct standard.

[58] It was also contended that the Judge’s conclusion that there had been breaches of the provisions of s 88(b) and (c) of the Act was wrong.

[59] Sections 88(a)(b) and (c) read as follows:

Bribery – Every person commits the offence of bribery who, in connection with any election –

(a) directly or indirectly gives or offers to any elector any money or valuable consideration or any offers of employment in order to induce the elector to vote or refrain from voting; or

(b) directly or indirectly makes any gift or offer to any person in order to induce that person to procure or endeavour to procure the return of any candidate or the vote of any elector; or

(c) upon or in consequence of any such gift or offer, procures or endeavours to procure the return of any candidate or the vote of any elector;

[60] For the sake of completeness, we also mention s 87 of the Act which deals with corrupt practices and provides in subs (1):

Every person is guilty of a corrupt practice, who in connection with any election, is convicted of bribery ...

[61] And the definition of "Corrupt Practices" found in s 2 of the Act:

means any of the offences specified in s 87.

[62] In his judgment, Hingston J, having set out s 88(a)(b) and (c) on page 11, said at the top of page 12:

In terms of ss(b) and ss(c) of s 88 of the Act I find there was an offer or gift of the money necessary to erect the digesters to each of the six recipients and that such gift or offer in terms of s 88(c) was an endeavour to procure the return of Robert Wigmore to the Titikaveka seat.

[63] Mr Harrison submitted that the facts as found did not fit s 88(b) and the Judge was wrong in law to so hold. At paragraph 48 of his written submissions, counsel argued:

... Section 88(a) deals with gifts or offers to an individual elector of money or things in order to induce that elector to vote or refrain from voting. What s 88(b) deals with is gifts or offers to "any person" so as to enlist that person’s support in procuring the return of any candidate or the vote of any elector. In short, conferring a benefit on an elector to buy that elector’s vote is covered by s 88(a). Conferring a benefit on someone (whether an elector or not) in order to enlist his or her efforts or services to procure the candidate’s return or the vote of some other elector, is what is covered by s 88(b).

[64] With respect, we agree. Hingston J was in error in basing his conclusion on ss (b) and ss (c) of s 88. But the facts he found support the same conclusion relying upon ss (a) and ss (c) of s 88.

[65] Counsel for the appellant argued, however, that the reference to "any such gift or offer" in s 88(c) could refer only to the "gift or offer" in s 88(b) and that therefore s 88(c) could not apply. We do not agree.

[66] What happened here "in connection with (this) election" was that the appellant, along with his Cabinet colleagues, "indirectly" gave or offered to each of the six piggery owners a digester worth approximately $6000, thereby offending s 88(a). gifts or offers fits fit the description of "any such gift or offer" in both s 88(b) and (c).
[67] So ] So an erroneous point of law is established heut it is not one which in our judgment should properly resu result in the finding of bribery being reversed. Rather, it is the very kf situation which s 102(3) 2(3) of the Act envisages when it invests this Court with jurisdiction to "modify ... the decision appealed against or any part of that decision". The modification we make is to simply substitute ss (a) for ss (b) in the passage from the top of page 12 of the judgment quoted above.

[68] Associated with this aspect of the appeal was a submission that the Judge had wrongly failed to address one particular element of the offence of bribery, namely whether Mr Matapo had acted corruptly. The elements of bribery are contained in s 88. If, fample, there is anis an offer of money to an elector made in connection with an election and in order to induce the elector to vote, the offence is complete. That then becomes a corrupt practir the purposes of s 87. The. There is no additional element of acting corruptly – the mere commission of the acts are declared to be corrupt. This construction is confirmed in the Borough of Limerick case (1869) 1 O’M & H 260 in the judgment of Mr Baron Fitzgerald, cited to us by Mr Harrison at 261:

Every forbidden act done for the purposes mentioned in this Act is to be regarded as done for a corrupt purpose, and once show that a forbidden act is done for any of the purposes mentioned in the Act it immediately becomes a corrupt act, though it would otherwise have been a purely innocent one; that is to say, in some cases the act itself affords grounds for reasonable inference of the intention with which the act is done, and there the legislature has not introduced the word ‘corrupt;’ and if the act is simply proved to be done, the Court is allowed to draw from it the ordinary reasonable inference prima facie that it was done for a corrupt purpose. But there are other cases in which the legislature, for some reason or other, appears to have thought the inference not so strong, and in these cases it introduces the word ‘corruptly’ for the purpose of showing that it did not intend the ordinary inference of intention to be relied upon.

[69] Finally, on the issue of bribery, we consider the point raised in question 9(c) as framed by Mr Harrison and accepted by the trial Judge. 9(c) reads:

Did I err in law in treating an otherwise lawful Cabinet decision to authorise public expenditure as requiring for the purposes of the petition to be justified (by the appellant) on its merits and/or by "credible explanation" to the satisfaction of the Court, having regard to the Constitutional separation of powers and the principle (for which the appellant contends) that Executive decision making as to expenditure of public moneys is non-justiciable by the Courts or (in the alternative) is entitled to substantial deference upon any review by the Court of Executive decision- making?

[70] Speaking to his written submissions, counsel for the appellant submitted that he had found no case in which an otherwise lawful Cabinet decision had been perceived as bribery because made during an election campaign.

[71] Although counsel had found no case, he recognised that Cabinet decisions could not be entirely immune from judicial review or scrutiny. In written submissions at paragraph 35, this was acknowledged and counsel added:

Plainly at the very least [the Cabinet decision] was reviewable if shown to have been taken in bad faith, or corruptly (in terms of a bribery allegation).

[72] That concession, along with the conclusions we have reached as recorded above upholding the Judge’s findings of fact and the inference he drew, together with our rejection of the standard and onus of proof arguments and the modification made to the s 88 ruling, really disposes of this final point.

[73] But the issue of principle involved is important, especially in this jurisdiction where the numbers of electors per constituency is very small by international standards and the result can depend on a handful of votes in marginal seats. For that reason and because the 2004 elections threw up two instances in Manihiki and Titikaveka directly in point, we add the following.

[74] First, the case of Scott v Martin (supra), a decision of Needham J sitting in the Court of Disputed Returns, is a helpful authority. A general indication of the nature of the case was given earlier. Point 1 of the head note reads:

Held:

(1) Where grants of money were made to community groups during an election period after the writs had issued and the results of the election were predicted to be close, that use of public money by the candidate of the same political party as the Government was a breach of s 147 of the Act because in the circumstances the grants were made with the purposes of producing an effect on the election.

[75] Within the judgment itself, the learned Judge, having recorded that he declared the election void, added (at page 673, paragraphs (f) to (g):

I do so with regret, not only because of the inconvenience occasioned by such a declaration, but also because of its effect upon the respondent. The respondent’s actions were not, in my opinion, corrupt in the ordinary accepted meaning of the word; unfortunately, in modern times, there seems to be an accepted view that public moneys are in the unrestricted gift of those in power. In some cases the temptation is to use such resources for purposes of party political advantage. That, in my opinion, is what has been done in the present case, and the respondent was but one of those involved.

[76] Secondly, to accord a Cabinet decision which breaches, or is alleged to breach, s 88 of the Act, some al priv privilege or protection against investigation would be to encourage the kind of corrupt practices which occurred in July 2004 to the detriment of the two electorates referred to above and the nation as a whole.

[77] We hold that Cabinet decisions made after the writs have issued and before polling occurs enjoy no special status or immunity. If they offend s 88 – which may occur, as here indirectly, they will result in the election of the candidate they were intended to assist being declared void.

[78] On analysis, the real complaint made under this head is that the Judge failed to give any or sufficient weight to the fact that the allocation was the result of a Cabinet decision and that what had effectively been done by the Judge was to "second guess" or review an executive decision. We do not think the Judge’s reasoning can be characterised in that way. He did not purport to review Cabinet but simply held, as we have earlier observed, that there was no reason disclosed for the immediate installation of digesters on private property. That approach discloses no error of law.

[79] For the above reasons we are not persuaded that the true and only reasonable conclusion from the facts set out in the decision and relied upon by the Judge was that the allocation was unrelated to the election and did not have the purpose of inducing electors to vote.

Eligibility of electors

[80] As earlier noted, the case stated sets out eight "questions of law" seeking the opinion of this Court in relation to the decision of the Judge declaring the votes of three electors invalid. In respect of each elector, the first respondent had lodged an objection under s 24(1) of the Act challenging their entitlement to be on the Titikaveka roll. The Judge found that the Registrar had failed to make any decision on the objections and, having reviewed their respective qualifications for registration, held that had the necessary actions been taken by the Registrar, those names would have been removed from the roll. He concluded that it was proper to invalidate the votes, referring to the "real justice" in terms of s 99 of the Act.

[81] For the appellant, Mr Harrison propounded three arguments of general application to all three electors.

[82] First, it was submitted that the petition in its final amended form was what counsel described as an "indirect" challenge to validity, namely the failure by the Registrar to remove the names from the roll under s 20(4) of the Act. It was contended that there was no "direct’ challenge to the respective residential qualifications of the electors to vote. We do not agree.

[83] The form of the petition expressed the reasons for dissatisfaction with the election under four headings. Heading A was "Objection procedure", and heading C "Disqualified persons". The three electors concerned were named under heading A. The first complaint made in respect of them related to the Registrar’s failure to act in accordance with statutory obligations, resulting in a denial of the petitioner’s rights to have ineligible persons removed from the roll. Under a separate sub-paragraph, the petitioner pleaded:

Alternatively, the Petitioner says that the votes of the following persons who were listed in the Petitioner’s objection, and upon which the Registrar made no decision, should be removed from the total votes cast, and all the remaining votes should be recounted, and the successful candidate declared accordingly:

c. 20/11 RINGIA Rouru – recently arrived in Cook Islands from Overseas and does not meet the 3 months requirement.

e. 20/6 RIMAMOTU Rima Junior, and

f. 20/7 RIMAMOTU Shannon Diane – both reside in Ngatangiia Constituency.

[84] Although the three electors are not also named under heading C, we are satisfied that the substance of this complaint is that the electors lacked the requisite constituency residential qualifications – indeed this was the very basis upon which the objections were based. Mr Harrison also contended that the petition did not comply with s 92(4) of the Act in that the specific grounds of challenge were not specified.

[85] For three reasons, we are not prepared to hold the petition invalid in this respect so as to prohibit the Court from inquiring into the qualification of those electors to vote.

[86] First, no such issue was taken in the High Court.

[87] Second, the question of qualification was addressed in detail at the hearing by way of evidence and by way of submissions.

[88] Third, we consider that there was sufficient specificity and no possible prejudice or disadvantage to the appellant resulted. The situation is far removed from that which faced this Court in Tataitau v Rasmussen C.A. 7/04, and Robati v Rua C.A. 8/04, Judgment 1 December 2004.

[89] The second argument, although not separately expressed in the written submissions to this Court, we discerned as being a contention that because the Judge had based his conclusions on the Registrar’s failure to carry out her statutory functions, that somehow confined this Court to a consideration of the so-called indirect challenge, and that is reflected also in the questions posed in the case stated. We do not see ourselves as so constrained. As acknowledged in counsel’s written submissions, there was effectively at trial a direct challenge to qualifications which the Judge necessarily considered in reaching his decision in each case. The real issue before this Court is as framed in the final question posed in the case stated in this respect: whether the Judge erred in law in declaring the votes invalid. Section 102(3) is also relevant, providing the Court with the power to confirm, modify, or reverse any part of the decision appealed against.

[90] The third argument concerned the validity of the objections lodged by Mr Matapo under s 24 of the Act. The primary attack was that the forms did not comply with s 24(3)(b)(ii) in that adequate reasons for an objection were not stated. We do not propose to consider this issue in detail. Section 96(1) of the Act provides:

Subject to this Act, the Court shall have jurisdiction to inquire into and adjudicate on any matter relating to the petition in such manner as the Court thinks fit.

[91] As Mr Harrison accepted, the failure to lodge an objection against the eligibility of a particular elector, and logically also the lodging of an invalid or null objection, cannot prohibit the Court from carrying out its statutory jurisdiction. If a challenge to the validity of a particular vote is properly mounted under a petition brought pursuant to the Act, then the Court is under an obligation to inquire into and adjudicate on that challenge.

[92] We also note that this submission was not advanced in the High Court, and therefore was not addressed there either in argument or in the decision. An appellate court can, in the interests of justice, entertain a new point of law upon facts either admitted or uncontroverted (Perkowski v Wellington City Corporation [1959] NZLR 1). The power, however, is discretionary.

[93] As Mr Akel noted, under s 24(4) it is the Registrar who is required to make a decision as to the sufficiency of the stated grounds and reasons set out in the objection. If the issue had been raised at trial, it may well be that some evidence would have been adduced, particularly as in the case of the Rimamotus the Registrar did embark on a consideration of the objections. The issue at trial concerned the failure of the Registrar to make a final decision either allowing or disallowing the objections. Furthermore, we are far from persuaded that the objections in question are so defective as to be nullities incapable of being acted upon by the Registrar.

Rouru Ringia

[94] This elector was duly enrolled in the Titikaveka constituency in 1999. After that date, she left the Cook Islands and resided in New Zealand for some two years. She returned to reside in the constituency on 1 June 2004. Under s 7(4) of the Act, she became disqualified as an elector once she had been absent from the constituency for a continuos period of three months. However, under s 7(5) she re-qualified as an elector for the constituency following her return and residence in Titikaveka for a period of three months. Her re-qualification in terms of the statute was therefore effective as at 2 September 2004, prior to the election but subsequent to the closing of both the main and the supplementary rolls. Her eligibility to vote turns on s 22 of the Act, which provides:

Certain persons deemed re-enrolled – Where a person who has been enrolled as an elector of a constituency becomes disqualified pursuant to section 7(4) and requalifies as an elector for the same constituency pursuant to section 7(5), that person is not required to re-register as an elector for that constituency if his or her name has not been removed from the roll during the period that the person was disqualified, and that person shall be deemed to be validly enrolled upon such requalification.

[95] In the High Court, it was common ground that s 22 operated in Mrs Ringia’s favour but the Judge, relying on s 99 of the Act, held that in terms of real justice, it would be proper to invalidate the vote. He noted that Mr Matapo had taken proper steps which should have resulted in the removal of Mrs Ringia’s name from the roll, but had been let down by the system. Section 99 provides:

Real justice to be observed – At the hearing of any election petition the Court shall be guided by the substantial merits and justice of the case and the Court may admit such evidence as in its opinion may assist it to deal effectively with the case, notwithstanding that the evidence may not otherwise be admissible in the Court.

[96] We doubt whether the section was designed to equate the equity and good conscience provisions often found governing the jurisdiction of inferior courts. The section appears to be directed, as Mr Harrison submitted, rather to the hearing process and the reception of evidence. That apart, the Court is bound to give effect to the dictates of the Act itself. If s 22 applied, then Mrs Ringia was deemed to be properly on the roll and entitled to vote. Mr Akel accepted her eligibility to vote, but contended it was only by way of a declaration pursuant to s 59(1)(b) of the Act. That srovision applies to persons who, since the closing of the rolls, have acquired the necessary residential qualification. Mr Akelitted that because the roll had closed, Mrs Ringia, at the time of re-qualification, could ould not be registered. We think that approach ignores the clear meaning and intent of s 22. It matters not why the elector’s name has not been removed from the roll. Once re-qualified, the elector is deemed to be validly enrolled. On election day, if Mrs Ringia’s name was on the roll, and she is deemed to be validly enrolled, then by virtue of that enrolment she was entitled to vote. There is simply no room for s 99 to operate. The decision to invalidate her vote was therefore wrong in law.

Rima Rimamotu and Shannon Rimamotu

[97] Both these electors applied to enrol in the Titikaveka constituency, on 11 May 2004 and 12 May 2004 respectively. It is common ground that neither was entitled to do so, not having achieved the necessary residential qualification in the constituency. They had only arrived in Titikaveka on or about 7 May 2004, although their applications declared that they had been resident there for "months". The declarations were therefore false. Objections to both were lodged by Mr Matapo in the knowledge that they were not eligible at the time of closure of the rolls.

[98] In his decision, the Judge said he was adopting the same reasoning as he had for Mrs Ringia, noting that the electors were not qualified when they were placed on the roll, that there had been an objection but no decision by the Registrar, with the only recourse available to Mr Matapo being the petition to the High Court. He accordingly declared the votes invalid.

[99] Although these two electors had therefore been in residence in the constituency for in excess of three months at the time of voting in the election, s 22 had no application to their position. Mr Harrison submitted, however, that because they had achieved residency qualification, they were entitled to vote and it did not matter that they had done so as enrolled voters, rather than by declaration under s 59(1)(b). It is necessary to examine the structure of the constitution and the Act to determine whether that is so.

[100] Article 28 of the Constitution defines who is qualified to be an elector. It is not concerned with eligibility to vote in a particular constituency, nor with registration. That is governed by the Act. The Act provides for registration of an elector for a constituency. Registration is compulsory for qualified persons. Rolls for each constituency must be kept. Part 5 of the Act is directed to voting. The scheme is to provide a means for all qualified voters to cast a vote. Three categories of persons are contemplated:

- those who are qualified and registered when the rolls closed;

- those who are qualified and have made application for registration but whose name does not appear on the roll (s 59(1)(a));

- those who since the closing of the rolls have become qualified (s 59(1)(b).

[101] These two electors come only within the third category – at the time of voting they were not validly registered and their names were on the roll improperly. Their subsequent residential qualification did not validate that registration, there being no provisions such as s 22 which could be called into assistance. Their right to vote, therefore, arose only under s 59(1)(b) by way of declaration, with the need for certification by the registrar before their votes could be counted. Neither of them was entitled to vote, as they claimed to have done, as being a duly qualified and registered elector. If this resulted in their disenfranchisement, that arose not from any deficiency in the electoral process or the conduct of any other person involved in that process. It resulted simply from the making of a false declaration and, by reason of that, being wrongly entered on the roll. Recourse to s 99, if inferentially that is what the Judge did, was unnecessary. The late residential qualification of these two electors did not cure the defective basis upon which they voted. The Judge was therefore right to declare the votes invalid.

The Cross-Appeal

[102] In his cross-appeal, Mr Matapo sought to have reinstated the disallowed votes of two electors.

[103] In respect of Donna Susan Engu, the Judge concluded that Mr Matapo, as petitioner, had not established on the balance of probabilities that over the last eight years this elector had not resided continuously in the Cook Islands for not less than 12 months and she was therefore validly on the roll. The only question of law posed for this Court is whether the Judge erred in placing the burden of proof on the petitioner.

[104] Mr Akel submitted that once the challenge had been made, the burden of proof of establishing eligibility passed effectively to the elector or, in this case, the appellant, who was opposing the challenge. Mr Akel relied on a judgment of Greig CJ in Kairualomona O/i> OA14/2004. That case concerned an application under s 28 of the Act to the High Court to review a Registrar’s decision rejecting an objecto an elector’s eligibility to be on the roll. The Chie Chief Justice noted that under s 27 an elector who had been given notice of an objection must respond within seven days and satisfy the Registrar as to eligibility. The section also provides that in the absence of a response, the elector’s name is to be removed from the roll.

[105] Grieg CJ held that, on review, the burden remained on the elector. That, however, concerned a statutory process which initially required determination in a very summary way, including a default provision, and with a right of a review of any decision. Whether or not the Chief Justice was right in holding that on review the burden remained on the elector does not call for decision here, and if the task was undertaken could require consideration of the true nature of a s 28 review. Challenges under a s 92 petition following an election are not governed by any provision equivalent to s 27. A petition is quite different from the administrative function of establg the roll. It makes allegations, possibly of a wide varietariety, which are enquired into by the Court. We can see no good reason for passing the evidential burden from the person making the allegation to the person defending it in respect of one claimed area of dissatisfaction (eligibility) and not another (bribery). The ordinary rule must apply – the person who makes the assertion has the burden of establishing it. That that should be so becomes clear on analysis. An elector whose vote has been counted has already gone through the process of enrolment, with the objection procedure having been completed. Prima facie the elector is eligible and the vote valid. The mere making of a challenge in a petition presented after the election cannot alter that.

[106] Accordingly, the Judge did not err in law in his application of the burden of proof.

[107] The second person the subject of the cross-appeal was Jill Robertson. Her eligibility was challenged in the petition, but a determination on it was overlooked in the Judge’s decision. In the normal course it would therefore be appropriate to remit the challenge to the High Court, but in the light of our finding on the issue of bribery and the consequences of that, such a course becomes unnecessary.

Conclusion

[108] As already noted, the case stated was not appropriately drafted. The Court does not consider it desirable to attempt to answer the questions as framed. The findings of the Court on the questions of law and properly identified as necessary for the determination of the appeal and cross-appeal can be summarised as follows:

• [a] There was evidence upon which the Judge was entitled to find that the first respondent was guilty of bribery;
• [b] The Judge did not err in applying the burden or standard of proof or in addressing the elements of the offence of bribery;
• [c] The Judge did not err in improperly conducting or attempting to conduct a curial review of a Cabinet decision;
• [d] The Judge was wrong in law to apply s 99 to invalidate votes which were validly cast;
• [e] The Judge did not err in applying the burden of proof in addressing challenges to voter eligibility.
  

Result

[109] The appeal is dismissed as is the cross-appeal. This means that the first respondent is confirmed as the member for Titikaveka.

[110] Costs to the first respondent of $3000, plus disbursements as fixed by the Registrar, payable by the appellant.

Barker JA
Henry JA
Smellie JA