Pokoati v Tetava [1978] CKHC 2; Misc 18-20.1978 (24 July 1978)

IN THE HIGH COURT OF THE COOK ISLANDS
Misc. Nos. 18, 19 and 20/78

IN THE MATTER of an election of a member
of the Legislative Assembly of the Cook Islands
held on the 30^th day of March 1978

AND

IN THE MATTER of three Petitions by
RAUI POKOATI
of Rarotonga, Politician
and other Electors of the Constituency of Mitiaro
such Petitions being numbered Misc. 18, 19 and 20/78
PETITIONERS

AND

DAVID TETAVA
of Rarotonga, Planter
FIRST RESPONDENT

AND

JAMES ALCIDE GOSSELIN
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

NGAMATA MOO
of Rarotonga,
Returning Officer of the Constituency of Maitiaro
THIRD RESPONDENT

Counsel: P.B. Temm, Q.C., V.A.T.K. Ingram, and T.C. Clarke for Petitioners
L.W. Brown, Q.C. and P. Goodfellow for First Respondent
B.H. Giles for Second and Third Respondents
D.A.R. Williams as Amicus curiae

Dates of Hearing:
Mitiaro - June 6, 1978
Rarotonga - June 8, 9, 1978

Date of Determination: 24th July 1978

DETERMINATION OF DONNE C.J.

This Electoral Court has received three petitions filed in the High Court of the Cook Islands pursuant to Section 74 of the Electoral Act 1966 the 19th April 1978. The petitions allege that in the election for the Constituency of Mitiaro on the 30th day of March 1978 at which the first respondent David Tetava was elected that the following unlawful and/or illegal practices occurred:-

(i) The said David Tetava was personally and/or by his agent and/or agents including Tareva Tareva and/or Putiare Katamiro and/or Maemo Taia and/or Rongomamae Katamiro and/or Nootai Tangapiri and/or the Cook Islands Party (Incorporated) and/or Albert Royle Henry and/or others guilty of the corrupt practice of bribery before and/or during and/or after the said election contrary to the provisions of Section 69 of the Electoral Act 1966 in that the said David Tetava:

a) Directly or indirectly gave or offered to electors any money being cash and/or valuable consideration being foodstuffs and the like in order to induce electors to vote or refrain from voting; and/or

b) Directly or indirectly made any gift and/or offer as aforesaid to persons in order to induce those persons to procure or endeavour to procure the return of David Tetava or the vote of electors; and/or

c) Directly or indirectly corruptly used public moneys in connection with the said gifts and/offers; and/or

d) Upon or in consequences any such gift and/or offer, procured or endeavoured to procure the return of David Tetava or the vote of electors.

(ii) That the said David Tetava was personally or by his agent or agents including Tareva Tareva and/or Putiare Katamiro and/or Maemo Taia and/or Rongomamae Katamiro and/or Nootai Tangapiri and/or the Cook Islands Party (Incorporated) and/or Albert Royle Henry and/or others guilty of the corrupt practice of treating before the election contrary to the provisions of Section 78 of the Electoral Act 1966 in that the said David Tetava himself or by any person on his behalf corruptly gave or provided any meat, drink, entertainment or other her provision to or for any person for the purpose of procuring his own election or for any other purpose calculated to influence the vote of that person.

(iii) The said David Tetava was personally and/or his agent or agents including Tareva Tareva and/or Putiare Katamiro and/or Maemo Taia and/or Rongomamae Katamiro and/or Nootai Tangapiri and/or the Cook Islands Party (Incorporated) and/or Albert Royle Henry and/or others guilty of general corruption of a widespread and general nature before and/or during and/or after the election in that the said David Tatava directly or indirectly corruptly used public moneys to bring about his election.

The Petitions claimed the following alternative determinations from this Court;

(a) That one Raui Pokoati (who was the candidate receiving the second largest vote) be declared elected; or

(b) that the election of the first respondent be declared void; or

(c) a determination that the first respondent was not duly elected.

At the hearing, however, senior counsel for. the petitioners indicated that only the relief mentioned under headings (b) and (c) was sought and the claim for the seat by Raui Pokoati was not pursued.

By consent of the parties the petitions were heard together occupying one day at Mitiaro and two at Rarotonga. The petitioners called 22 witnesses. No evidence was adduced by the first respondent.

On the evidence I find the following facts to be established:

On Saturday the 25th February 1978 a hurricane, called by the meteorologists "Hurricane Charlie", hit the island of Mitiaro causing damage to buildings and food crops. Radio communication with the centre of Government at Rarotonga was lost. The next day, undoubtedly due to the lack of any information on the fate of the Island and the flying conditions being satisfactory, the Premier Sir Albert Henry, the Minister of Finance the Honourable Mr. G.A. Henry, the Acting Secretary Health and other Government officials flew in a chartered plane to the Island. On arrival at the Island, the party inspected the damage and a general meeting was held at the Community Hall attended by the Islanders at which the Premier spoke. He told the people he had come because there had been no news of the Island after the hurricane. He promised that the Government would send help by way of food. Mr. G.A. Henry also. promised help after which the Premier again spoke urging his listeners to vote for him. The General Election had at that stage been announced and the sitting member Raui Pokoati, a former member of Sir Albert's political party, the Cook Islands Party, had left the party and was standing for election as an Independent. The first respondent had be nominated as the official candidate for Sir Albert's Party. After the meeting Sir Albert and his contingent went to the home of Papa Tereva and met with some Cook Islands Party officials. There was no evidence of any meeting with the Island Council and I conclude there was none.

The next day Monday the 27th February 1978 the Financial Secretary Mr. Kingi and the Treasurer Mr. Ditchburn met with the Minister of Finance at the latter's request at which meeting it was decided that supplies be sent urgently to Mitiaro. It was agreed that these supplies be consigned to the official Government officer in the Island, the Chief Administration Officer, and that they were to be distributed by the Island Council. The Department responsible for Hurricane Safety is the Department of Trade, Industries and Commerce whose Minister was the Honourable Mr. G. Ellis. The Hurricane Safety Officer is the Secretary of the Department Mr. R. Chapman. Neither of these gentlemen were at the meeting.

That Monday evening the Cook Islands Party held a meeting at the Victory Theatre at Avarua. It was broadcast over the radio and was heard in Mitiaro. Speakers at that meeting included Sir Albert Henry and the first respondent. In dealing with Mitiaro Sir Albert said:

"Mitiaro. I have been to have a look at the damages. Mitiaro tell me they want Papa Davida.Therefore he will have to wait for the time when the boat carrying the food to go to Mitiaro. That will be the time for him to go and take the food. Mitiaro-Papa stand up again. Davida Tetava."

The first respondent, Mr. Tetava, as would be expected spoke at greater length in Mitiaro which he called by its traditional name of "Nukuroa". The relevant sections of his speech are:-

"...The Premier came down from his high position and Geoffrey. They went through the hurricane to meet you Nukuroa. When they came back from Nukuroa ... this is what they said to me. Don’t you worry, Nukuroa is fine. So to you Nukuroa the C.I.P. is preparing a boat to bring you help because of your disaster. For us to stay in the one canoe, to give you help more often to you Nukuroa."

The following morning, the 28th February 1978, the Treasurer, on learing (sic) that the motor vessel "Manuvai" was sailing that afternoon for Mitiaro, notified the Minister of Finance of that fact. Later, that morning, Hr. Tom Kopa, the Stores Controller of the Treasury received two requisitions issued from the Premier's Department ordering food for Mitiaro, the first being for a total value of $850.70 and the second for $150.15. Mr. Kopa, having the authority to approve requisitions up to the value of $1,000, was the appropriate officer to deal with them. The Premier's Department was not the normal channel from which such requisitions for hurricane relief flowed, the appropriate requisition department being the Department of Labour Industries and Commerce. In this case, Mr. G. A. Henry as Minister of Finance signed his approval of the requisition as did Mr. Chapman, the Chief Hurricane Safety Officer. The first requisition for food worth $850.70 specified that the goods were "to be forwarded to David Tetava Mitiaro". The second requisition for food worth $150.15 specified that the goods were "to be shipped to David Tetava Mitiaro". Both were certified as being "items required for Government use and Finance is held" by a Mr. Matatamua who signed as "Permanent Head". I am satisfied both Mr. Henry and Mr Chapman signed the requisitions after they had been completed and certified by Mr. Matatamua. The goods were purchased on Government requisitions and by Bill of Lading were consigned to David Tetava to be forwarded to Mitiaro on the M.V. "Manuvai", the freight being payable by the Cook Islands Government. The goods consigned were:

10 sacks flour

10 bags sugar

20 tins cabin bread

5 cartons anchor milk

10 cartons fish

The goods were marked - "David Tetava. Mit".

The goods arrived at Mitiaro next day. The Chief Administration Officer was not advised by anyone in Rarotonga in Central Government of its consignment. The first respondent came with the food. He came ashore and addressed the people waiting there telling them that he had brought the food and that it was on the ship and had the name "David Tetava" on it. The Chairman of the Island Council Mr. Taei was there with the people but appears to have been ignored. He was not given the Bill of Lading for the food nor did Mr. Tetava tell him that he would be in charge of the food. When, however, it was evident that the food was wet, at the suggestion of the watersiders, he took over the task of compiling a list of all the houses on the Island. While he was doing this, the Secretary of the local Cook Islands Party, Mr. Raia, told him the people wanted the food distributed. When the Chairman had completed his listed he went to find Mr. Tetava since the latter being the consignee in and the holder of the Bill of Lading, was the only one lawfully entitled to uplift and deal with the food. He and Mr. Tetava went to the Sunday School where the food now was stacked.

There were a number of people waiting there. Mr Tetava addressed them telling them that the food was there, it cost $1,000 to buy and the Premier and his wife had donated $300 towards the cost of it, "to help you". This, of course, was not true.

The food was then distributed not by the members of the Island Council who, the evidence establishes, should have been given the task, but, by the Chairman of the Island Council, the Chairman of the Cook Islands Party Mr. Katamiro, and the Secretary of the Party Mr. Taia. I am satisfied that these two latter men were neither asked by the Chairman of the Island Council to assist nor did the Chairman have the option of getting together his Council to assist him.

In the result food was distributed to all the houses in Mitiaro.

On the evening of the day the food was distributed another Cook Islands Party Meeting was broadcast over the radio. It was held at Constitution Park in Rarotonga. Mitiaro was referred to by the Honourable Mr. G. A. Henry who said:-

"Papa Tereva in Mitiaro has said, you and Papa Arapati (Sir Albert) are not to worry. All. you have to do is to send the tins of fish. Mitiaro has confirmed you and Papa Arapati are not to worry but send the tins of fish. The tins of fish have arrived in Mitiaro. They are eating them now."

The fact that the goods were requisitioned for and consigned to David Tetava was not known to either the Financial Secretary or the Treasurer until the latter’s attention, on about the 6th March, had been drawn to an article in a newspaper called "The Weekender" alleging it. They were understandably concerned since the arrangement with the Minister of Finance was that the goods would go to the Government Official on the island, the Chief Administration officer but more so because Mr. Tetava was not a government servant. On the 6th March, the Treasurer Mr. Ditchburn instructed the accountant for the Department to investigate and report on the allegation. The investigation substantiated the allegation and in consequence Mr. Ditchburn spoke to the officer who certified the requisitions as being for Government use, Mr. Matatamua who had refused to give any information to the accountant until he had seen the Minister of Finance. However, on being confronted by the Treasurer who asked him who decided to requisition the goods for Mr. Tetava, Mr. Matatamua said he had spoken to the Premier Sir Albert Henry about the inquiry and had been told not to worry and do nothing about it.

The Treasurer informed the Financial Secretary of the result of his investigation and it was decided that the former interview the Minister of Finance when he returned to Rarotonga which was to be on the following day. At that interview the Minister acknowledged he had authorised the sending of the goods. The Treasurer then suggested that the matter should be clarified by the Minister making a public statement that the goods had been sent by the Government to be distributed as relief supplies. No such statement emanated from the Minister.

It is relevant also to record that in the case of the last hurricane which hit Mitiaro in 1967 before the recent one, relief supplies were sent to the Clerk in charge of Administration on the island and were distributed by the members of the Island Council. Also in the case of relief supplies sent to Mauke and Palmerston after this latest hurricane, then were consigned to the respective Chief Administration Officer's of these Islands and in the case of where there is an Island Council, there were specific instructions telegraphed to the Administration officer that he arrange with the Island Council to distribute the food. In these two cases, the requisitions for the food and the consignment thereof were effected by the Ministry of Labour Industries and Commerce.

Counsel for the Petitioners indicated in his final submissions that they relied, in the main, on their allegation of treating as defined in Section 70 of the Electoral Act 19 which by virtue of Section 68 thereof as a "corrupt practice". Section 70 reads as follows:

"70. Treating - Every person commits the offence of treating who, being a candidate at any election, by himself or any other person on his behalf corruptly gives or provides any meat, drink, entertainment or other provision to or for any person for the purpose of procuring his own election oron account of his having been elected, or for any other purpose calculated to influence the vote of that person."

I now direct myself to a consideration of this ground. To prove treating within the meaning of Section 70 the following elements must be established: that the first respondent by himself or any other person on his behalf:

a) Gave or provided food for electors of Mitiaro: and

b) the giving or provision of the food was for the purpose of either:

i) procuring his own election, or

ii) for any other purpose calculated to influenced the votes of the electors

and

c) such giving or providing was with a corrupt intent.

It is necessary to say a word or two about the terms "give" and "provide" which appear in Section 70 especially since senior counsel for the first respondent placed some stress in his submissions on the absence of any positive evidence proving that David Tetava either owned the goods or claimed ownership to them. Mr Brown posed rhetorically the question, "what evidence would support a belief by anyone that he did own the food"? It is important to note that Section 70 itself does not refer in terms to ownership at all. It certainly does not stipulate that the "meat, drink, entertainment or Provision" which must be given or provided to constitute the offence shall also be owned by the donor. In their ordinary meaning neither of the words "give" or "provide" necessarily involves ownership and I can see no basis at all for giving the words any special meaning in the statute. The clear connotation of the words is to supply, furnish or make available and the concept of ownership may or may not be present. This proposition can be tested by posing the hypothetical question of the consequences under Section 70 if the goods used for treating were stolen goods. Surely it could not be suggested that the alleged offender could escape responsibility simply because he had no lawful title to the goods.

As to the standard of proof required in proceedings such as these I am satisfied it is as submitted by Mr. Temm, namely, on the balance of probabilities. These proceedings are civil and while the Court is concerned with the allegation of treating which is an offence under the Electoral Act, the standard of proof is still that which applies to civil cases. However, as was stated in Hornal v. Neuberger Products Ltd. 1957 1 QB. 247; 1956 3 All E.R. 970 the standard of proof required in the circumstances such as these is high. It is put this way in the Hornal case at 258 (973):

"....the standard of proof depends upon the nature of the issue. The more serious the allegation the higher the degree of probability that is required: but it need not, civil case, reach the very high standard required by the criminal law."

Mr. Temm also correctly stressed that the burden of proof that an election was not affected by approved transgression, if such proof is indeed necessary, rests on the respondent. He cites Islington, West Division Case Medhurst. v. Lough & Gasquest (1901) 5 O’M & H. 120 at 130 where Kennedy J. delivery the judgment of the Election Court states:

"We agree with Mr. Jelf that, there being an infraction of the law in the supply of ballot papers at the polling stations in Bingfield Street, the burden of proving that this infraction did not and could not affect the result of the election rested in this case on the Respondents. We think that the gist of the judgment of Chief Justice Monaghan the case of Gribbin v. Kirker, so far as it is a decision of law and not of fact, is that in such a case as the present the Petitioner is not called upon to prove affirmatively that the result of the election was affected by the proved transgression of the law; but the Respondents must satisfy the Court that it was not and could not be affected by it."

See also The Kensington North Parliamentary Election 1960 2 All E.R. 150 at 152 (line 4) to 153 (line 6). I do not, for the reasons given below, consider there is a necessity for such proof in this case. Even if there were, the First Respondent has called no evidence nor has there been established in his counsel’s dissection of the Petitioner's evidence any proof which could discharge the burden.

On the evidence, there is no doubt that food in substantial quantities was provided by the first respondent, Mr. Tetava for the people of Mitiaro. On the instructions of the Minister of Finance and as a result of the requisitions from the Premier’s Department, food was acquired by Mr. Tetava. The goods were consigned at Government expense in his name to Mitiaro on the motor vessel "Manuvai". There is no direct evidence of the first respondent being concerned with the requisitions but in the light of his speech and that of Sir Albert Henry made at the meeting of the Cook Islands Party the evening prior to the requisitions (supra) I draw the strongest inferences of his knowledge of the plan from the beginning. He spoke of the Cook Islands Party preparing a boat to bring Mitiaro help. His leader Sir Albert also told Mitiaro that Mr. Tetava was bringing them food. Apart form this, there can be no question that the Minister of Finance who departed from the normal practice of sending such relief to the Chief Administration Officer at Mitiaro, must be considered the agent of the first respondent who, not being concerned with Government, could not requisition. That could be done only with the approval of the Minister. He is of the first respondent's political party and undoubtedly what he did and the manner of doing it was designed to implement Mr Tetava's and Sir Albert's expressed intention of the previous evening. The first respondent's subsequent actions show be fully accepted what was done by the Minister. In such circumstances he must be bound by the Minister's action. As was stated by Hosking J. in The Bay of Islands Electoral Petition [1915] NZGazLawRp 60; (1915) 34 N.Z.L.R. 578 at 585, 586:

"The entrusting to an agent of the acts to be done may either be in express terms or arise from implication. As was said in The Dungannon case, "The circumstances of each case may differ, but that implication ordinarily must arise from the knowledge which it appears that the candidate has of the part which the person is taking in the election. If that part of the business of an election which ordinarily and properly belongs to the candidate himself be done to the knowledge of the candidate by some other person it appears to me that the other person is an agent of the candidate, and the candidate is responsible for any corrupt act done by the person". In The Harwich case the law is stated thus:

"As regardsrds the seat, the candidate is responsible for all the misdeeds of the agent committed within the scope of his authority, although they were done against his express directions and even in defiance of them... The authority may be actual or it may be implied from circumstances. It is not necessary in order to prove agency to show that the person was actually appointed by the candidate. If a person not appointed were to assume to act in any department of service as election agent, and the candidate accepted his services as such, he would thereby ratify the agency, so that a man may become the agent of another in either of two ways, by actual employment or by recognition and acceptance.""

But I have no doubt Mr. Tetava knew the food for Mitiaro was provided on his behalf and he cannot evade the responsibility for that fact which I hold has been proven.

I turn now to the other elements to be proved, viz. first that the provision of the food by the first respondent was either for the purpose of procuring his election or for any other purpose calculated to influence the votes of the electors and secondly that the food was "corruptly" provided. The expression "corruptly", used in the section on which the Petitioner rely, needs some elucidation.

The proper interpretation of the word "corruptly" which clearly indicates some element of intention has been a judicial task of some difficulty. The earlier uncertainties and differences of opinion on the topic are referred to in Rogers On Elections 20th Edition 1928 Volume II (hereinafter referred to as Rogers) at 306 et. seq. and in Sir Frances Adams' treatise Criminal Law and Practice in New Zealand Second Edition 1971, paragraph 821 pp. 234-235. The authorities cited by Sir Frances, including the leading case of Cooper v. Slade [1858] EngR 546; (1858) 6 H.L. Cas. 746; 10 E.R. 1488, appear to suggest that the word adds little to the meaning of the section. Thus Willes J. in the latter case said at p.773 (1499) that the word did not mean "dishonestly" but the doing purposely of an act forbidden as tending to corrupt and he added that the word ‘corruptly’ seems to be used as a designation of the act of rewarding a man for having voted in a particular way ... rather than as part of the definition of the offence".

However, considerable assistance can be gained from the New Zealand cases which have considered the meaning of the word "corruptly" in relation to the offence of treating. These cases have defined a "corrupt" intention as an intention on the part of the person treating to influence the vote of the recipients. Thus in the Wairu Election Petition [1912] NZGazLawRp 37; (1912) 31 N.Z.L.R. 321 the Court (Williams and Chapman J.J.) said at page 326:

"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."

Reference may also be made to The Eden Election Petition 1923 N.Z.L.R. 644, 659-660 and to the earlier English cases which are in harmony with the New Zealand approach. They are listed in Rogers at 309.

In considering whether there was this corrupt intention to treat i.e. whether there was an Intention to influence the votes of the persons treated, the conduct of three of the participants in the food distribution, the first respondent, Sir Albert Henry, and the Honourable Mr. G. A. Henry, must be scrutinized. First, there can be no quarrel for the necessity for the flight to Mitiaro by Sir Albert, his Minister of Finance and the Government Party on the 26^th February last in so far as it was an exercise to assess damage and provide for relief. The situation of distress demanded it. Mitiaro had obviously "taken a beating" by the hurricane and badly needed help. Had the inspection contingent confined themselves to the task of assessment and sympathy there could be no complaint. But there is no doubt politics "raised its ugly head". The sitting member, the Petitioner, Mr. Pokoati had defected from the Cook Islands Party, and the first respondent Mr Tetava was Sir Albert's and his Party's choice. The temptation to introduce politics, which in the circumstances should have been completely forgotten, could not be resisted by Sir Albert who after he and Mr. Henry had told their listeners of the relief that would be provided, took the opportunity to urge those who attended the meeting to discuss such hurricane relief to vote for him and by that the undoubtedly meant his Party and its candidate. Leading counsel for the Petitioners placed reliance upon the Wigan Case (1881) 4 O'M.& H. 13 and in this area of the case I agree with him that the judgment of Mr. Justice Bowen is of considerable interest.

In Wigan the election was held in times of distress owing to a strike, and on the polling day breakfasts and bread and cheese were distributed among the poor. On the question of treating Mr. Justice Bowen said:-

"In the second place I wish to answer the suggestion that this was merely charity. Charity at election times ought to be kept by politicians in the background. No doubt the distress was great in. Wigan at this time, and there was probably many a fireless and breadless house throughout the town; but the politicians who ought to have relieved the distress were not the politicians of Wigan; they ought to have stood aloof; they had another duty to discharge on that day, and they could not properly discharge both duties at the same time. In truth, I think it will generally be found that the feeling which distributes relief to the poor at election time, though those who are the distributors may not be aware of it, is really not charity, but party feeling following in the step of charity wearing the dress of charity, and mimicking her gait."

While it is true that in the Wigan case the impeached. charitable distribution, which took place on polling day, had a more direct temporal connection with politics than existed nevertheless the reasoning of the Learned Judge seems to me to be apt to the circumstances of the instant case, especially the vivid allusion which concludes the passage which has been cited.

That politics were in Sir Albert’s mind is I consider shown by his preference for a meeting with his party officials on the Island before his return to Rarotonga.

The next event to be considered is the Cook Islands Party meeting at the Victory Theatre the following evening which was broadcast and heard in Mitiaro. A reasonable interpretation by listeners of the words of Sir Albert Henry and the first respondent could only be that the Cook Islands Party and the respondent the candidate for Mitiaro in particular were providing food for the Island. He was going to be the one to "take the food to Mitiaro". The candidate himself told his constituents "the C.I.P. is. preparing a boat to bring you help". He urges the Mitiaroans to "stay in the one canoe" which, of course, means to stay with the Cook Islands Party.

I have dealt already in some detail with the next sequence of events, the provision of the food for Mitiaro by the requisitions prompted by the Minister of Finance. Despite the agreement made the prior day with the Financial Secretary and the Treasurer that the goods be sent to the Chief Administration Officer, the requisitions were made out in favour of the first respondent, Mr. Tetava who wad not in the service of the Government and thus not entitled to Government property. It is significant that the Mauke and Palmerston supplies were sent to the Chief Administration Officer as has been the practice in relation to relief sent to other Islands after hurricanes. It is also significant that instead of the Department of Industries Labour and Commerce, which was the Department properly designated for the task of hurricane relief and which dealt with the Mauke and Palmerston supplies, the Issuing Authority in the case of Mitiaro was the Premier’s Department. I have not had the benefit of hearing from the Honourable Mr. G.A. Henry and in the absence of any evidence which would explain otherwise I am satisfied that the decision to alter the arrangement made with the Financial Secretary and the Treasurer when considered with the usual procedures adopted in other cases of hurricane relief was for the express purpose of projecting Mr. Tetava to the people of Mitiaro as their providor.

That the first respondent was prepared to accept that role is, I consider, borne out by his conduct when he arrived with the food at Mitiaro He ignored the Chairman of the Island Council, he made it known to the people there that he had brought the food and later told them the untruth that Sir Albert Henry and his wife had provided $300.00 towards the cost of it. His name appeared an all the packages of supplies. He certainly never disabused the people of the idea that he was the benefactor. His Party Chairman and Party Secretary took it upon themselves to distribute the food with the Chairman of the Island Council who obviously resented their interference. Even to a sophisticated thinker, in my view, there could reasonably be a conclusion drawn that the food was provided by the first respondent. To the Mitiaroan who possibly is more politically naive then, say, his Rarotongan counterpart, I have no doubt such a conclusion could be drawn In that respect it should be noted that it is not necessary for the Petitioners to prove that, in fact, such a conclusion was drawn. In this respect the earlier citation from the Wairau Election Petition [1912] NZGazLawRp 37; (1912) 31 N.Z.L.R. 321, 326 is opposite. if the reasonable and probable effect of the alleged treating would be to influence voters then that is sufficient proof of treating. It should be noted also that Section 70 is primarily, if not solely, concerned with the actions and intentions of the alleged transgressor and not the effect of the proscribed conduct on the actions of the recipient voters at the polling booth.

The part played by the first respondent in the Cook Islands Party is again emphasised by the Honourable Mr. G.A. Henry in his broadcast speech on the evening of the food distribution. This has already been referred to. Suffice it to say, I am satisfied the words used were so designed to convey that impression.

Finally, I would refer to what I consider to be a very important indication as to "corrupt" intention. This is the occasion when the Treasurer,. who having become aware of the nature of the requisitions saw the Minister of Finance, suggested that the latter make a public statement that the food supply to Mitiaro was hurricane relief provided by the Government. This was about the 9th March. The election was the 30th March 1978. No such statement was made. Again, I have not had the benefit it of an explanation from the Minister on this point, and I conclude that his failure to inform the people of Mitiaro of the true facts concerning the distribution of food was due to his intention to perpetuate the impression that he hoped they would have gained that the food was provided by the Cook Islands Party Candidate for Mitiaro, the first respondent.

These actions of the first respondent and those of, Sir Albert Henry, his leader, and the Minister of Finance the Honourable Mr. G.A. Henry, Both of whom must be held to be the first respondent’s agents, in my view, establish in the first respondent the "corrupt" intention which is an essential element in the offence of treating. I am therefore constrained to hold that there was a plan to provide the first respondent with food which he was to provide for the relief of the people Mitiaro. He acquired the food by means of the requisitions above referred to, the goods were consigned to him and he had control of them as holder of the Bill of Lading. He provided the people of Mitiaro with the food. I am also satisfied that his intention in so providing the foods was to influence the people of Mitiaro to vote for him and for the purpose of securing his election to the Legislative Assembly on the 30^th March 1978.

Before leaving this part of the case I should refer to the argument of leading counsel for the first respondent who contended that this plainly was an emergency situation where the only aim of those involved was to provide much needed assistance to the hurricane-damaged island of Mitiaro. Mr Brown inferred that such motives were the true motives of those involved in the operation n and he was strongly critical of ,the statement made by junior council for the Petitioner who contended in his opening that the f first respondent had "cynically capitalised on the hurricane". Now that phrase may be properly characterised as unduly emotive but I do not accept that the actions of the first respondent and his associates were inspired solely by a desire to assist in the relief of Mitiaro. In my view the evidence already outlined clearly negates such a conclusion. But even if I am wrong and the participants could be considered to have had the purpose for which counsel contended I do not accept that charity was the dominant objective. The question of mixed motives is considered in Rogers at page 313 where the learned author says:

"...It is submitted, whether the question relates to bribery or treating:

a) that the first question is, what at was the governing motive, charity etc or popularity;

b) that the two motives may exist together without dangerous results unless the last named predominates...."

As I have said, I f find the dominant motive to have been the achievement of political popularity and not charity. Furthermore, it may be that the "governing motive" approach 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, D.P.P. v. Luft [1976] UKHL 4; 1976 3 WL.R. 32; 1976 2 All ER 569 (H.L.) and the note thereon in 39 Modern Law Review 730, 731-732. In D.P.P. v. Luft, a criminal case under the Representation of the People Act 1949 involving allegedly illegal campaign expenditure, the House of Lord, held that in assessing the liability of the person incurring the disputed expend expenditure it was sufficient if one of the reasons which played apart in inducing the person to incur the expenditure with his desire to promote or procure the election of a candidate. Earlier cases involving a "dominant intention" test were rejected. Lord Diplock said at page 41 (574):-

"To speak of a dominant intention suggests that a desire to achieve one particular purpose can alone be causative of human actions; whereas so many human actions are prompted by a desire to kill two birds with one stone."

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

Since I have held that the first respondent acquired the food by means of Government requisitions the question of the payment therefor must be considered. I was told that Government had assumed the responsibility for payment. If that is so, there is obviously in question the use of public funds for private purposes I do not however, propose to pursue this problem.

Since, in my view, it is not a necessary element to be considered under the heading of "treating".

The petitioners, having succeeded in establishing the allegation of treating, I now turn to the relief sought in their petitions. As mentioned above, relief was sought the alternative: first, a determination that Raui Pokoati was duly elected and ought to have been so elected (petition 18/78); secondly, a determination that the election was void (petition 19/78); and thirdly, a determination that the first respondent was not duly elected (petition 20/78). However, in the course of his submissions leading counsel for the petitioners expressly abandoned the first prayer and said he would be content, in the event of the petitioners succeeding, to have a determination that the first respondent was not duly elected and that the election was void, the practical result of which would be to nullify the election and require a by election.

In view of this election made by the petitioners, the next question which falls for consideration is the proper interpretation of s 79. In the context of these petitions the following issued inevitably arise for consideration:

(a) Do the petitioners, having succeeded in establishing the allegation of treating, have to go on to show that it was an irregularity which "materially affected the result of the election"?. To put the matter in another way, does treating come within the phrase "some irregularity" in s 79(1) or is "irregularity" confined to the matters listed in s. 78?

(b) Can the petitioners avoid the need to prove that the result of the election was "materially affected" by simply asking the Court to determine under the second branch of s 79(1) that the successful candidate, the first respondent, was not duly elected. If so, how can such a determination be made effective in the sense of triggering the by-election procedures contained in Section 27. This latter question involves a close examination of Section 79(2).

The question posed under (a) was mentioned in the introductory submissions of Mr. Williams who appeared as Amicus curiae. He adverted as well to numerous other problems of interpretation arising under Part VI of the Electoral Act. Mr. Temm submitted that the work "irregularity" in Section 79(1) was all encompassing and included bribery and treating and in this he was supported by Mr. Giles counsel for the Electoral Officer. Mr Temm did not, however, argue the matter extensively nor did he address any specific submission to me on the significance of phrase "materially affected the result". He may have assumed, perhaps with same justification, that if treating was proved in this case involving as it did the provision of foodstuff to all the inhabitants of Mitiaro, then it was beyond argument that the result was materially affected in this respect I should refer also to his contention, which I have earlier accepted, that the burden of proving an election result was not affected by a proved transgression rests upon the alleged transgressor.

In view of the importance of these two questions I must, therefore embark upon my own exegesis, wearying though this may be, for the true construction of the statue has great importance to the result in this and related Petitions.

The Electoral Act 1966, in my view, can be described as a "slipshod" enactment and it harbour many ambiguities. I had occasion to grapple with some of its complexities in my Judgment last year in Tangata v. Speaker of the Legislative Assembly and Others (O.A. No. 3/77 Judgment 23 December 1977).

In a case such as this history is a teacher that is not to be ignored. This is especially so when one reflects upon the generality of the language in Part VI of the Electoral Act and the impact of Article 77 of the Cook Islands Constitution which provision, all counsel agree, had the effect of retaining at least, some of the common law principles relating to electoral malpractices. The cornerstone of the law both in England, New Zealand and the Cook Islands is Section I of the Bill of Rights 1688 which provides that "election of members of Parliament ought to be free." The detailed provisions of modern electoral codes seek to give enduring validity to this fundamental proposition concerning freedom of elections. In the great case of Fitzgerald v. Muldoon 1976 2 N.Z.L.R. 615 it was affirmed by the Chief Justice of New Zealand that the Bill of Rights was still in force in New Zealand, and, so far as the Cook Islands is concerned the combined effect of Section 615 of the Cook Island Act 1915 and Article 77 of the Cook Islands Constitution it to retain the applicability of the Bill of Rights in the Cook Islands as well, since there is nothing in the Constitution which is inconsistent or detracts in any way from this part of the Bill of Rights.

In this historical narrative it is now convenient to refer to the outline of English Electoral Law expressed with typical clarity by Lord Denning M.R.in Morgan v. Simpson 1975 1 Q.B. 151, 16l-164; 1974 3 All E.R. 722, 725-727:

"The common law method of election was by show of hands. But if poll was demanded, the election was by poll; see Anthony v. Seger. A poll was taken in this way. The returning officer or his clerk had a book in which he kept a record of the votes cast. Each voter went up to the clerk, gave his name and stated his qualification. The clerk wrote down his name. The voter stated the candidate for whom he voted. The poll cleric recorded his vote. (Sometimes the voter went up with a card on which the particulars were written, and these were written down by the poll clerk.) After the poll was concluded, the votes were counted and the result announced. But the poll book was open to inspection. Then, if required, there was a scrutiny at which a vote could be challenged, for example, by showing a voter was not qualified to vote. In that event his vote was not counted. So the result was decided according to the number of votes cast which were valid votes. Sometimes the returning officer or his clerk might refuse to record some of (sic) votes without good cause. If it were found that the rejected votes would have given a different result, the election would be vitiated: see Faulkner v Elger. If they would not have affected the result, the election was good, but the rejected voter could have an action for damages against the returning officer: see Ashby v White.

Such was the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant. These were not investigated by the courts of law. They were the subject of petition to Parliament itself. Often members were unseated and elections declared invalid. If you should wish to know what happened, you find it in Power, Rodwell and Drew’s reports of controverted elections, and in Charles Dickens's accounts of the election at Eatanswill.

In 1868 the judges were brought in for the first time. By the Parliamentary Elections Act 1868 a petition to unseat a member was to be tried by a judge of one of the superior courts. He was to make a report to the Speaker; and his report had the same effect as that of an election committee previously. After that Act, the judges tried many election petitions. Nearly all of them were for bribery, corruption and treating. Most of them will be found in O’Malley and Hardcastle’s reports. There is one relevant to our present case. It arose out of an election at Taunton in 1868. It shows that, when a petition alleged that the unsuccessful candidate had a majority of legal votes, the manner of ascertaining the truth was by a scrutiny of the votes. If, on the scrutiny, it was found that he had obtained the majority of legal votes, the sitting member was unseated and the defeated candidate returned: see Leight and Le Marchant where this proposition is better stated that in the report of the case.

Then in 1872 Parliament passed the Ballot Act 1872. It revolutionised the system of voting at elections. It provided for voting by secret ballot. It prescribed rules and set out forms of ballot papers. It contained a provision as to non-compliance with the rules. It is the forerunner of the section which we have to consider today. Section 13 of the 1872 Act said:

‘No election shall be declared invalid by reason of a non-compliance with the rules contained in the First Schedule to this Act, or any mistake in the use of the forms in the Second Schedule to this Act, if it appears to the tribunal having cognizance of the question that the election was conducted in accordance with the principles laid down in the body of this Act, and that such non-compliance or mistake did not affect the results of the election.’

Soon after that Act was passed, Leigh and Le Marchant published their valuable commentary on it. They transformed the negative into the positive in the way I have suggested:

‘A non-compliance with the provisions of the Ballot Act 1872, and schedules 1 and 2, or a mistake at the poll, will vitiate the election, if it should appear that the result of the election was affected thereby, but not otherwise, provided the election was conducted in accordance with the principles laid down in the body of the Act’.

A little later, the Act was considered by Grove J. in 1874 in the Hackney Case, Gill v Read and Holmes. In that case there were 19 polling stations but two were closed all the day, and three others were only open for part of the day. The result was that 5,000 persons (out of 41,000) were unable to vote. Grove J. held that the election was not ‘conducted in accordance with the principles laid down in the body of the Act’ and was therefore void. He said that the object of the provision was this:

‘... an election is not to be upset for an informality or for a triviality, it is not to be upset because the clerk of one of the polling stations was five minutes too late, or because some of the polling papers were not delivered in a proper manner, or were not marked in a proper way. The objection must be something substantial....’

The 1872 Act was soon afterwards considered in 1875 by the Court of Common Pleas in Woodward v. Sarsons. A polling officer made this mistake: he wrote, on each of the ballot papers, the voter’s number as it appeared on the electoral roll. That rendered the ballot papers void. There were 294 of them, 234 for Woodward and 60 for Sarsons. The returning officer, quite properly rejected them. On his count, Sarsons got 965 and Woodward 775. Woodward asked the court to declare that, for breach of the rules, the election should be declared invalid. The Court of Common Pleas had a scrutiny and went into all the alleged breaches. (There were some others besides the 294.) They found that the errors did not affect the result. Even if the polling officer had made no mistakes, the result would have been Sarsons 1025 and Woodward 1008. So Sarsons would have won anyway. The court said:

‘...the errors of the presiding officers at the polling station ... did not affect the result of the election, and did not prevent the majority of the electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void....’

But if the errors had affected the results (in other words if Woodward would have won but for the mistakes of the polling officers), the court, as I read the judgment, would have declared the election void. Whilst I agree with the passage which I have quoted, there are other passages with which I do not agree. Some of them are erroneous, as Stephenson L.J. will observe. In future, the case should be regarded as authority only for what is decided, and not by what is said.

Next comes the Islington case in 1901, Medhurst v. Lough and Gasquet. A presiding officer, in breach of the rules gave out 14 ballot papers after 8 p m, which was closing time. They were invalid and ought not to have been counted. But they were counted. Lough was declared elected by 19 votes. Medhurst, the other candidate, sought to have the election declared void. The court went into details. They said that even if all the 14 papers after 8 p m were given for Mr. Lough, there was a majority of five for him. The irregularity did not affect the result of the election. So it was not avoided.

In 1949 came the Representation of the People Act 1949."

To come a little closer to home it is to be observed that the first New Zealand statutes on the topic of electoral malpractices were enacted in 1858, namely the Corrupt Practices Prevention Act and the Election Petitions Act. Under the latter statute a petition was presented to the House of Representatives which was required to set up a committee to adjudicate upon it. The statute did not describe any electoral offences or irregularities and presumably the committee applied the common law of Parliament as it existed in England. Section 38 required the committee to decide whether "the sitting member or any other person was duly returned or elected, or whether the election is void". This language is very similar to that contained in the corresponding parts of Section 79(1) of the Cook Islands Electoral Act 1966.

The Judges were brought in for the first time in New Zealand in 1880 when a new Elections Petitions Act was introduced. From that time forward the New Zealand and English legislation runs along very similar lines, and the current statutes. The Electoral Act 1956 (N.Z.) and the Representation of the People Act 1949 (U.K.) are in pari materia in most respects so far as election petitions and electoral offences are concerned. However, the Electoral Act 1966 (Cook Islands) while containing similar definitions of various corrupt electoral practices, is not as comprehensive as the present New Zealand or United Kingdom legislation and it is this brevity which creates much of the difficulty and uncertainty to which reference has already been made. Some of the definitions in Part VI appear to be closer to the earlier New Zealand and United Kingdom provisions and the draftsman seems to have relied more upon the simulation of the 19^th and early 20^th Century than upon the current New Zealand and United Kingdom statutes. Pertinent examples of this approach will be mentioned later.

In the Tangata case (supra) at pages 12-14 I pointed out that the forerunner of the Electoral Act 1966 was the Cook Islands Legislative Assembly Regulations 1965 (N.Z. SR. 1965/17). It is not necessary for the purposes of that judgment in this case. It is sufficient to say that in relation to Section 7 of the Electoral Act 1966 the Cook Islands Legislative Assembly did not reproduce the old regulations in unaltered form nor did it follow faithfully the precedent contained in the 1956 New Zealand statute.

I now turn to consider Part VI of the Electoral Act 1966 assisted, I trust, by the historical outline I have just concluded.

Section 74 enables dissatisfied candidates or electors to demand an inquiry into "the conduct of the election or of any candidate or other person thereat". Clearly this involves an extensive jurisdiction embracing allegations of procedural irregularities as well as misconduct such as commission of any of the corrupt practices mentioned in Section 68 and defined in Sections 69 (Bribery), Section 70 (Treating), section 71 (Undue influence), and Section 72 (Personation).

Sections 75-77 relate to procedural matters which are not pertinent for present purposes. However, Section 78 requires some consideration. This provision has its counterpart in Section 167 (N.Z.) and Section 37(1) (U.K.).

The English provision has been authoritatively interpreted by the English Court of Appeal in Morgan v. Simpson (supra). I am not, at this point, concerned so much with effect, as to which see Lord Denning’s judgment at 164 (728), but with its coverage. Section 78 is in the following terms:

"No election shall be declared void by reason of any irregularity in any of the proceedings preliminary to the polling or by reason of any failure to hold a poll at any place appointed for holding a poll, or to comply with the directions contained or incorporated in this Act as to the taking of the poll or the counting of the votes or by reason of any mistake, in the use of the forms contained or incorporated in this Act, 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."

It is to be noted that "irregularity" is nowhere defined in the Act. Section 78 can only apply to the irregularities listed, i.e. an irregularity in proceedings preliminary to the polling, failure to hold a poll at any place appointed for holding a poll, failure to comply with directions in the Act as to the taking of the poll or the counting of votes, and mistakes in the use of forms. One question which immediately takes the eye is whether the phrase "an irregularity in proceedings preliminary to the polling" is intended to refer to procedural defects only or whether, on the other hand, the commission of a corrupt practice or other misconduct could amount to such an irregularity. The significance of Section 78 in the proper interpretation of Section 79(1) will become apparent in a moment when I turn to examine the latter provision but before doing so reference should also be made to Section 80.

Under Section 80 it is provided that where the Judge is of the opinion that "any irregularity has been wilfully committed" he shall direct the officer in charge of the Police in the Cook Islands to take proceedings for the prosecution of that person. On conviction such person shall unless some other penalty is elsewhere prescribed, be liable to a fine not exceeding $200 where the irregularity in the opinion of the Judge materially affected the result of the election or to a fine not exceeding $40.00 where the irregularity did not have that effect but defeated the fairness of the election. The question at once arises as to whether the word "irregularity" in this section includes "corrupt practices" as defined in Section 68. The phrase "wilfully committed" would appear to lead to a negative answer since a "corrupt practice" under Sections 69, 70, 71, or 72 undoubtedly requires mens rea and this would make the words "wilfully permitted" superfluous in relation to such "corrupt practices".

Turning now to Section 79 it is in the following terms:-

"79. Result of inquiry - (1) The Judge shall determine whether, by reason of some irregularity, that in his opinion materially affected the result of the election, the election is void; or whether the candidate whose election is complained of, or any other candidate, was duly elected.

(2) The Judge shall cause any determination under this section to be transmitted to the Chief Electoral Officer, who shall forthwith-

(a) Publicly notify any such determination;

(b) Where any election is determined to be void, declare the seat vacant pursuant to section 7 hereof;

(c) Where any other candidate is determined to be elected, declare that candidate to be elected pursuant to section 59 hereof, and revoke any warrant previously issued by him pursuant to that section which is not consistent with the determination."

Section 79 should be compared with Sections 163, 164 and 165 (N.Z) which prescribe the precise consequences of findings of corrupt practices, general corruption, and irregularities. Such helpful indicia for decision-making, which also appear in the current English statute, have no counterpart in the Cook Islands legislation thus raising the difficult question of the proper exercise of the Court’s powers where a candidate has been guilty of a corrupt practice, where there has been general treating or corruption, or where there have been "irregularities". In the absence of provisions such as Sections 163 and 164 (N.Z.) and 139 (U.K) I must decide what is the appropriate consequence of a conclusion on the evidence that a corrupt practice has been committed or that there has been general corruption, both of which are alleged in these Petitions. In so far as counsel for the petitioners urges that the word "irregularities" in Section 79(1) includes corrupt practices. I am necessarily obliged to examine that submission for if it is correct then it would seem to follow, as I have said, that the petitioners must show that such " irregularities" alleged here materially affected the results of the election. (By "result" is meant the return of the candidate and not the amount of the majority: see Rogers at 41 and the cases cited therein). On the other hand, if I am able on the findings I have made to act under the second limb of subsection (1) of Section 79 the question of "material affect" on the result of the election may not necessarily arise for decision. It seems to me that the proper interpretation of Section 74 and Section 79 of the Electoral Act 1966 can be assisted by exploring their interrelationship with Sections 78 and 80 on the one hand and Section 7(1)(b) on the other and then posing the question: what consequences flow from a determination under Section 79?

Looking at Section 79(2) it can be seen that the Electoral Officer, following a determination that either there has been some irregularity which materially affected the result or that the candidate was not duly elected, is required forthwith to:

a) Publicly notify the determinations.

b) Where any election is determined to be void, declare the seat to be vacant pursuant to Section 7. (Within the meaning of this Section and Section 79, the "election" to be considered is the particular election of the candidate as opposed to the General Election. Section 74 provides for petition for inquiry into "the result of any election held in the constituency". Section 7(1)(b) the provision opposite to the requirements of Section 79(2)(b) states that "the seat of the a member shall become vacant....if on an election petition the Court declares his election void".)

c) Where any other candidate is determined to be elected, declare that candidate to be elected pursuant to Section 59 hereof and revoke any warrant previously issued by him pursuant to that section which is not consistent with the determination.

Section 79(2)(c) does not have to relate back to Section 7 because such a declaration does not cause a vacancy. It substitutes one candidate for another as the successful candidate. Section 79(2)(b) on the other hand refers back directly to Section 7 and, as noted already, the only relevant part of Section 7 is clearly Section 7(1)(b).

Therefore if there is no substitution of candidates by a declaration and revocation under Section 79(2)(c) but the determination under Section 79(1) is that the successful candidate is not duly elected the only way that ruling can be made effective is to couple it with a holding that his election is void. A finding in such terms by the Court would automatically make the seat vacant because of the operation of Section 7(1)(b).

On this basis, the purpose of the declaration by the Electoral Officer under Section 79(2)(b) is not to cause the seat to become vacant since it would have already become vacant by the Court’s declaration that "the candidate was not duly elected and that his election was void". The true object of the declaration by the Electoral Officer is to activate the by-election procedures set out in Section 27(1). In this regard, I accept the submission of counsel for the Electoral Officer who contended that a declaration by the Electoral Officer under Section 79(2)(b) obviated the need for a declaration by the Speaker under Section 7(5). The reason for this is that section 79(2)(b) states that such a declaration by the Electoral Officer is pursuant to Section 7.

In my judgment, the significance of this somewhat tortuous analysis is that the Court can, under the second part of Section 79(1), effectively disqualify a candidate whose election is challenged and require a by-election, or alternatively substitute an unsuccessful candidate, without having to rely in any way upon the first part of Section 79(1) dealing with "irregularities" which materially affect the result of the election.

Thus a determination under the second limb of Section 79(1) (i.e. that part of the sub-section appearing after the word "or") does not necessarily require a showing that the result of the election was "materially affected" and such a determination can, it seems to me, be made virtually upon any grounds that the Court thinks sufficient because there are no express words in the second part of Section 79(1) limiting the grounds for a determination that the successful candidate was not duly elected.

Of course, the general words of the second part of Section 79(1) are not to be regarded as empty vessels into which the Court can pour anything it wishes. The Legislative Assembly may have bestowed a wide power upon the enquiring Judge but it must be employed in a way which will promote the policy and objects of the Act which are both to be determined by the construction of the Act: see the speech of Lord Reid in Padfield v Minister of Agriculture and Fisheries [1968] UKHL 1; 1968 A.C. 997, 1030; [1968] UKHL 1; 1968 1 All E.R. 694, 699.

I do not think there is any difficulty in ascertaining the primary legislative objectives of the Electoral Act 1966. As I have already mentioned, I discern the fundamental purpose of the Act to be the securing of freedom of elections. Then there is the related statutory purpose of the avoidance of corrupt practices and the creation of criminal offences in relation thereto. So the Court must commence its evaluation of the facts, in a case such as this, having clearly in mind the evident statutory objective of ensuring free election untainted by malpractices of various kinds. The Court would no doubt take action and grant relief if it felt, in the words of Lord Denning, M.R. in Morgan v Simpson 1975 1 Q.B. 151, 164; 1974 3 All E.R 722, 728 that "the election was conducted so badly that it was not substantially in accordance with the law as to elections". The Court might also have regard to the retained common law rules delineating conduct which will avoid an election. Thus the following propositions referred to in Rogers would be pertinent:-

a) Page 264:

"Corrupt practices, whenever committed, may avoid an election (citing cases)".

b) Page 290:

"A single act of bribery, however trifling the amount, may avoid an election." (This proposition was affirmed by the High Court of Australia in Crouch v Ozanne [1910] HCA 49; (1910) 12 C.L.R. 539, 541)

c) Pages 301-302: General Bribery:

"Freedom of election is at common law essential to the validity of an election. If this freedom be by any means prevented generally, the election is void at common law. An election is therefore avoided by general bribery, although not brought home to the candidate or his agents. .......An election will not be avoided upon this ground unless the bribery is shown to have been so extensive that it was not a fair and open election ....... General bribery in favour of the respondent may be divided into (1) widespread general bribery, and (2) local and partial bribery; and in the case of (1) that it must be proved that the election as a whole was not a free one, and that the numbers polled and majority are immaterial, and in the case of (2) that the onus lies upon the petitioner to prove that the result may reasonably be supposed to have been affected, which necessitates a consideration of the numbers polled, the district and majority, and that if he satisfies the Court of this the election must be avoided unless the respondent can prove that the bribery could not possibly have affected the result."

d) Pages 323-324: General Treating:

"...General treating in favour of the respondent may be divided into (1) widespread general treating and (2) local and partial general treating; and in the case of (1) that it must be proved that the election as a whole was not a free one, and that the numbers polled and that the majority are immaterial, and in the case of (2) that the onus lies upon the Petitioner to prove that the result may reasonably be supposed to have been affected, which necessitates a consideration of the number polled, the district, and majority, and that if he satisfied the Court of these the election must be avoided unless the respondent can prove that the treating could not possibly have affected the result."

The continuing applicability of these common law rules may be demonstrated by taking another route. Many of the cases from which the propositions listed under (a) to (d) are drawn were decided during the period when Section 11, paragraph 13, of the Parliamentary Elections Act 1868 was in force. This provision which is very similar in its wording to Section 79(1) of the Cook Islands Electoral Act is reproduced on page 409 of Rogers and it is in the following terms:

"At the conclusion of the trial the Judge who tried the petition shall determine whether the members whose return or election is complained of, or any and what other person, was duly returned or elected, or whether the election was void, and shall forthwith certify in writing such determination to the Speaker and upon such certificate being given such determination shall be final to all intents and purposes."

That provision remained in force until repealed by the Representation of the People Act 1949 U K. Accordingly, all of the authorities at least from 1868 onwards relating to this matter and referred to exhaustively in Rogers were based on a statutory provision identical in material part to section 79(1)

In exercising its power under Section 79 the Court will not, however, be confined to such common law doctrines in deciding whether to grant relief. Thus, by way of illustration, the Petitions allege in paragraph 2(iii) of the Petitions that the first respondent "directly or indirectly corruptly used public moneys to bring about his election." This appears to be the thrust of the last pleading in the Petitions although the allegation is made in the context of the claim that there was "general corruption", whatever be the intended boundaries of that phrase. In contrast to the Rarotonga petitions it is not necessary on the facts to consider in depth the allegation of misuse of public moneys because, as counsel for the petitioners agreed, the crux of the case lies in the allegation of treating. However, if the allegation of misuse of public moneys stood alone and was substantiated I have no doubt that the Court could, if it considered that the circumstances were sufficiently serious to warrant it, declare the successful candidate not duly elected and his election void without either (a) necessarily having to have proof that the result was materially affected, this test being primarily confined to cases where irregularities are urged, and irregularities are limited to those described in Section 78, or (b) having to have before it proof of a corrupt practice as defined in the Electoral Act 1966. (Proof that the result was materially affected appears from the citations from Rogers (supra) to be required not only in cases of "irregularities" but also in cases of local and partial general treating and local and partial general bribery).

In other words, it is my view of the statute that there may be misconduct or illegal practices which fall somewhere between the less important breaches, i.e. "irregularities" but do not reach the level of a corrupt practice or alternatively do not fall exactly within the statutory definitions of corrupt practices. Such misconduct, for the reasons I have given could, in appropriate circumstances, result in a candidate being found not to be duly elected and his election being held void or alternatively it could lead to another candidate being substituted as the successful candidate.

The lack of any restrictive list of grounds for judicial intervention in the second part of section 79(1) no doubt reflects a legislative policy not to confine the range of circumstances which could lead to a determination that a candidate was not duly elected. To paraphrase Mahon J. in Coleman v Myers 1977 N.Z.L.R. 225 at 276 the moving pageant of human affairs displays new varieties of conduct and activities which may attract liability under the Electoral Act although not squarely defined therein.

Before returning to the facts and framing what I think is the appropriate determination in this case I should perhaps endeavour to summarize the views I have expressed on these various provisions:-

1) The existing law provision of the Constitution (Article 77(1)) combined with Section 615 of the Cook Islands Act 1915 preserves the common law of elections except where the Electoral Act 1966 can be taken to have expressly or impliedly altered it.

2) In view of the statutory definitions of the various corrupt practices contained in the Electoral Act 1966 the common law definitions of bribery, treating, undue influence, and personation are no longer applicable (Whether, in any event, there is any significant difference between the common law and the statutory definitions need not in these proceedings be considered).

3) Since the Electoral Act 1966 does not define general bribery and general treating (the Mitiaro Petitions used the omnibus phrase "general corruption"), the common law definitions outlined in Rogers (supra) still apply. As stated above, general bribery and general treating are still part of the law of the Cook Islands by virtue of section 77(1).

4) Section 74 is written in very wide terms and empowers the Court to investigate all kinds of electoral malpractices.

5) In Section 78 the phrase "irregularities in proceedings preliminary to the polling" does not cover corrupt practices nor are the other types of irregularity in Section 78 capable of being so interpreted. The operation of the Section is restricted to procedural irregularities in the true sense.

6) The first limb of Section 79(1) dealing with irregularities that materially affect the result of the election relates back to, and is limited by, the kind of irregularities defined in Section 78. Contrary to the submissions of counsel for the Petitioners and counsel for the Electoral Officer the word "irregularity" in Section 79(1) again does not include corrupt practices or general treating or general bribery.

7) The second part of Section 79(1) enables the Court in appropriate cases to make a determination that the successful candidate is not duly elected and that his election is void. In other cases falling under the second part of Section 79(1) where "the seat is claimed" the Court may decide to grant the seat to the candidate having the majority of lawful votes instead of ordering a new election for the seat. Determinations of this kind, under the second part of Section 79(1) may or may not require a showing that the result of the election was "materially affected" depending upon the ground relied upon. Thus, for example, in the case of the corrupt practices defined by Sections 69, 70, 71, and 72, it appears according to the common law rules outlined in Rogers, at 264 and 290 cited earlier that the election may be avoided irrespective of whether the result was materially affected. (Cf. Section 163 Electoral Act 1956 (N.Z.) On the other hand, "irregularities" and local and partial general bribery and local and partial general treating require, according to Rogers (supra), a demonstration by the petitioner that the result may reasonably supposed to have been affected. (Cf. Section 164 Electoral Act 1966 (N. Z.)).

Determinations under the second part of Section 79(1) can be made upon any grounds that the Learned Judge thinks sufficient including inter alia:

(i) a commission of a corrupt practice, as defined in Sections 69, 70, 71 or 72 by the candidate or his agent or agents.

(ii) the existence of general bribery or general treating at the election whether brought home to the candidate or his agents or not.

(iii) proof that the election was conducted so badly that it was not substantially in accordance with the law as to elections.

(iv) proof of other serious misconduct or illegal practices which do not reach the level of corrupt practices or alternatively do not fall exactly within the statutory definitions of corrupt practices.

8) In Section 80 the word "irregularities" does not include corrupt practices. In addition to the reasons already mentioned for this conclusion earlier in this judgment the following additional reasons may be given:

i) irregularities should, I consider, have a consistent meaning and the interpretation which I have adopted as to the true meaning of Section 80 will make all the sections dealing with irregularities (i.e. Sections 78, 79 and 80) have an harmonious interpretation.

ii) the level of penalties provided is so low as to suggest that only minor matters are covered, not serious corrupt practices.

iii) the reference to "...some other penalty elsewhere provided" is not confined to the sections on corrupt practices. See for example the offences in Section 61(2) and 61(3).

iv) if a direction is made under Section 80 the Police "shall" initiate proceedings. One would think that with more serious and complex matters, such as corrupt practices and the like the Police should be left with their traditional discretion as to whom to charge and for what offences. Of course, there would be nothing to prevent the Court in an appropriate case directing that all of the evidence be handed to the Police with a view to the making of such investigations and the institution of such prosecutions as the circumstances appear to the Police to require. (Cf. S.183 (N. Z.) and S.159 the Representation of the People Act U.K. and see Halsbury’s Laws of England 4th Edition, Volume 15 paragraph 902).

Applying these propositions to the facts I make the following determinations and directions:

1) The petitioners, having established treating under Section 70, I determine under the second part of Section 79(1) that the first respondent was not duly elected and that his election is void and the election itself is void. For the reasons already given, the petitioners are not required to establish that that proven offence of treating materially affected the result of the election although I may say in passing that if the law had been otherwise the Court would have been quite entitled to draw the inference that it did have such an effect, especially in view of the absence of evidence to the contrary from the first respondent.

2) Pursuant to Section 79(2) I direct the Registrar to forthwith transmit my determination to the Chief Electoral Officer so that he may attend to the public notification under Section 79(2)(a) and make the necessary declaration that is required by Section 79(2)(b). The consequence of these steps by the Chief Electoral Officer will be, pursuant to Section 27, that a by-election will be held at a date and time to be fixed by the Chief Electoral Officer. (Of course, as pointed out earlier, the result of the determination I make today is, by the operation of Section 7(1)(b), to immediately vacate the seat of the first respondent.)

3) In case the Chief Electoral Officer should require any ancillary orders as to the conduct of the by-election which will follow this determination, I reserve to him and his counsel liberty to apply for directions.

4) Since I did not have the benefit of any submissions on the question of costs I reserve the rights of the parties to make submissions thereon. I should make it clear, however, that I am not prepared to receive any submission that an order for costs should, pursuant to Section 81, be made against the second or third respondent because I consider that they carried out their duties in an exemplary fashion and cannot be criticised in any way. Submissions on costs shall be made in writing in the first instance. If I desire to hear counsel I will advise accordingly.

5) Pursuant to Section 81(2), I direct that the deposits accompanying the Petitions shall be returned to the persons who paid the same.

6) In so far as counsel for the petitioner urged that I order pursuant to Section 80 that the Police initiate a prosecution, I am not prepared to make such an order. I understand that the Police, at the suggestion of the Electoral Officer, earlier investigated the circumstances of this case. It may be thought to be somewhat unusual that while the Police apparently decided that a prosecution was not warranted I have today determined that the office of treating was made out. However, it could very well be that the Court in these Petitions was supplied with more evidence that was able to be gathered together by the Police. But the primary reason for the refusal of an order under Section 80 is that the transgressors here have, it seems to me, committed the offence of treating under Section 70 and therefore the Court is not concerned with the kind of "irregularities" which I have held are covered by Section 80. Nevertheless, it is clearly the intention of the Legislature that breaches of the electoral laws should not pass unnoticed by those responsible for law enforcement and I feel it is my duty to direct that the whole of the evidence and the exhibits be handed by the Registrar to the Superintendent of Police for further consideration. It will, as always, be a matter solely for the Police, in consultation with their legal advisers, to decide whether to launch prosecutions under Section 70. In such proceedings a different standard of proof will, of course, apply and the determination I have made on these Petitions is not to be interpreted in anyway as foreclosing the independent evaluation and consideration of the matter by the Police.

DONNE C J.

Solicitors for the Petitioners: Short & Tylor, Rarotonga
Solicitors for the First Respondent: J.G. Collinge, Auckland
Solicitors for the Second and Third Respondents: Russell McVeagh McKenzie Bartleet & Co, Auckland