In re Constituency of Teenui-Mapumai v Simiona [1983] CKHC 10; HC MISC 24.1983 (20 May 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT ATIU
MISC. 24/1983

IN THE MATTER
of an election of members of the Parliament of the Cook Islands
held on the 30^th day of March 1983

AND

IN THE MATTER
of the Petition by a Candidate and
Electors of the Constituency of Teenui-Mapumai
PETITIONERS

AND

TANGATA SIMIONA
FIRST RESPONDENT

AND

ANDREW TURUA
SECOND RESPONDENT

AND

TEURA MAKA KEA
THIRD RESPONDENT

Messrs Matheson and Mayne for Petitioners
Mr Ingram for the First Respondent
Messrs Mitchell and Manarangi for the Second and Third Respondents

Dates of Hearing: 19^th & 20^th May 1983
Date of Judgment: 20^th May 1983

DECISION OF SPEIGHT C.J.

This is a decision in respect of the second of the two petitioners received over the last General Election and concerning the Atiu West seat, with the first respondent being Mr Simiona. The case was brought on two grounds. First on bribery under section 69 and second on treating under section 70. They were two separated incidents one relating to the Seventh Day Adventist school and the other relating to the new airfield.

I propose to deal with the second one, the allegation of treating, first because it can be disposed of quite quickly. The definition of treating was discussed in the other case yesterday. It is a gift of food or drink to electors with the idea of prompt consumption, done for the purpose of procuring election and done corruptly. Counsel are agreed that corruptly does nothing to add to the definition. It is tautology. So we have to look at the question of the gift and the purpose. There were three witnesses, Mr Mariri Paratainga and two others. Their evidence was quite clear with little argument about it. There is no doubt that there were many cartons of meat taken to the airfield from time to time and distributed. This was to provide food for the workers as an inducement for their voluntary labour and it was provided by the Island Council. Some point was made on the fact that for 1982 no food had been supplied and that supplies only came in February with the election getting closer. I did not find anything sinister in this because the scheme was devised by the Island Council, and it was done to overcome absenteeism particularly as the supply of meat had proved successful on another scheme.

Most of the cartons were sent from Rarotonga with the label "Island Council" written on them. Two of these however had the address "T. Simiona, Atiu". One of those arrived after the election. It is apparent that the name was an address and seems to have been put on in Rarotonga. It is clear that apart from the money to pay for the meat coming from the Cook Islands Government, others were requested to help. Air Rarotonga and Cook Islands Airways were obvious people to approach for support. It was the Island Council's idea to approach these firms and Mr Simiona as the local M.P. was appointed to make the request. The request was successful and it is apparent that someone, presumably at Rarotonga addressed the carton to Mr Simiona as the logical channel. That was a sensible way for Cook Islands Airways to deal with the matter to make sure that the article finished up at the place where it was requested. There is no evidence to show that Mr Simiona asked that it be done this way and presumably it was on the initiative of somebody in the Cook Islands Airways. There is nothing to show that Mr Simiona or anyone on his behalf even knew that the package had arrived or was in the store. Even less is there any basis for thinking that he knew that his name would be displayed in this way. Mr Mariri Paratainga, who is a staunch Cook Islands Party man, when he saw it suspected improper motives. The other two men who gave evidence did not jump to that conclusion. Hindsight shows that it was an accidental happening. And it would be quite absurd to observe that this trifling incident constituted treating within the terms of the Electoral Act. So I spend no more time on that allegation.

The main thrust of the case is in the charge of bribery in respect of the Seventh Day Adventist school and in particular with Mrs Upu. Once again we remember the definition in section 69(a) which we are concerned with. It is directly or indirectly giving or offering valuable consideration to an elector in order to induce the elector to vote for a particular candidate. Some point was made that the gift was to the school or to the children, whereas the voting appeal was made to Mrs Upu and I suppose indirectly it could be suggested that their school administrations too would be pleased and thereby influenced by the gift. I do not think it is necessary to indulge in legal refinements about the identity of the school which of course is an unincorporated body because valuable consideration given need not be for the benefit of one person only. In the present case, Mrs Upu is obviously a devoted Principal of this school. Being a private school, it has a difficult job in financial terms. It is obvious that the school-teacher's life and work is made much easier if adequate equipment is supplied. The common sense of the matter is that a benefit in this way is a benefit to the school-teacher who carries the burden of the school work. Doubtless, the use of the sporting equipment by her pupils will make her task easier and give her great pleasures. So I have mentioned that point only to dismiss it.

Mr Ingram made submissions based on the Bolton's case referred to in the Mitiaro report at 1979 1 NZLR and that bribery does not only involve intention to buy a vote, but has an expressed or implied condition. In his submission there must be something in the nature of giving plus an implied accepting. As a matter of law, I do not accept this proposition despite what may have been said in other cases mostly in England particularly in those relating to travelling expenses. We are concerned with the definition in section 69(a). There is no phrase there about expressed or implied condition and it is quite unreal to impart contractual notions into such a context. The question is, did the candidate or someone on his behalf give or offer and if so what was the intent? In any event this point is immaterial to the present case. Notification from Mr Simiona that the gifts were coming was on 17^th February and received by Mrs Upu on the 19^th and it was coupled with the request in the letter Exhibit B for political help. Despite her protect that she was shocked and apprehended that it was an attempt to buy her vote, when the gifts were delivered on 7^th March they were accepted. So if the argument that there must be some implied confirmation or acceptance is a correct one, which I reject, that would be an acknowledgment of the request for political help. The point is were the offer of the gift and the request to be linked together. The crucial question whether these were divorced issues or whether they were linked. We are back to the same situation as was discussed yesterday in the case of the gift by Mr Norman George on the marae. What was the motive for the gifts? I accept the law which has been discussed by the lawyers over these last few days. If there were mixed motives that is to say if two purposes were being served it is sufficient if the intention to influence a vote is a substantial part of the reason for the gift that brings the matter within the ambit of prohibition.

There is no doubt that Mr Simiona was the local M.P. and he had a very long background in education. As such, he was perfectly entitled to procure Government support if he could get it for a school in his electorate. And in this context it is to be remembered that in these cases it is irrelevant that the money is not his own. It is the act of procuring it from somewhere which is aimed at. Mrs Upu said of its own the gift or the letter would have been quite unobjectionable and she would have had no complaint. It is well recognized that it is a member of parliament's right to get support from Central Government for his own electorate but in some circumstances it can become suspicious to the point of danger. There is an appropriate paragraph in Halsbury's Laws of England, 4^th Edition, on Elections. It is worth reading in full para. 774, headed Charitable Gifts.

For the benefit of counsel it is interesting to note that authority relied on for the main proposition is the Wigan case, quoted in Mitiaro at p.10. In the context of the way with which the charity was dispensed I note that Mr George accompanied Mr Simiona when the gift was delivered. I shall mention this fact later. I have discussed the general principles of law of the giving of gifts within one's electorate and the crucial question is whether it is still a legitimate gift or whether it has crossed the dividing line. Some facts need commenting on concerning the purpose of these actions of late February and early March. I do not think it matters he was no longer the Minister of Education - he was a local M.P. It is clear from the crucial letter Exhibit B that he had intended to talk politics to Mrs Upu on 15 February and that was the day when he took the initiative of asking her about her school's needs. It is noted from her evidence that earlier requests for assistance had been turned down in 1981 and 1982. The fact that he was not the Minister of Education is of relevance because it cannot be said he was rectifying a defect in his portfolio. I note that his counsel claimed that he was "the father of the school" but Mrs Upu would not accept this suggestion. She claimed that he had somewhat ignored them and I cannot overlook the fact that he did not give evidence to contradict her, so that there is nothing to show any special relationship between him and the school. This failure of Mr Simiona to give evidence makes one have to look very much to Mrs Upu. She says with a note of virtue, that she interpreted the gift as buying her vote and one must pay regard to her reaction. I accept when she said that Letter Exhibit A would have been quite unobjectionable but for the fact that it contained the statement that there would be more gifts probably in the future and in the same envelope was Exhibit B - the request for her vote. And I note finally the presence of Mr George when the gifts was delivered - a fact I have already mentioned, which adds an additional political flavour. Without the letter Exhibit B and if there had been no talk of politics at all, the gift line would not have crossed into political territory. There might at most have been suspicion amongst the cynical that coming so close to election after a long period of inactivity it was politically motivated. But the coincidence of Letter B in the same envelope and, to a slight degree, the content of the cover-up letter D demonstrate to the court that the peril discussed in para. 774 Halsbury's Laws of England has arisen. And I conclude that one of the motives and a substantial one was to influence the vote of Mrs Upu at least. It is true that there is only one person directly concerned though others may have had some spin-off effect but a single act is sufficient. Consequently I declare that Mr Simiona was not duly elected and that the election is declared void.

I add the following postscript. The Court does not relish having to hold that a long serving and respected politician has offended against the Act. Certainly the gifts were small and only one or possibly two people could have been affected - there have been more serious cases in the past, but the Court's duty, when the evidence is presented, is to see that the Act the aim of which is to procure clean elections, is vigorously enforced.

Counsel may apply for costs in due course if desired.

SPEIGHT J