In re Constituency of Takuvaine v Henry [1983] CKHC 13; Misc 103.1983 (24 November 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

MISC. NO. 103

IN THE MATTER
of an Election of Members of Parliament of the Cook Islands
held on Wednesday the 2nd day of November, 1983

AND

IN THE MATTER
of a Petition by a candidate and Five
Electors of the Constituency of Takuvaine
PETITIONERS

AND

GEOFFREY ARAMA HENRY
of Rarotonga, Politician
FIRST RESPONDENT

AND

ANDREW MATA TURUA
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

JAMES CHRISTIE DITCHBURN
of Rarotonga, Returning Officer
or the Takuvaine Constituency
THIRD RESPONDENT

Counsel: V Ingram for Petitioners
GA Henry for First Respondent
T Manarangi for Second and Third Respondents

Date of Hearing: 24 November 1983
Date of Judgment: 24 November 1983

DECISION OF SPEIGHT CJ

After the close of the case presented by the Petitioner Mr Henry has made an application that I should rule that there has not been a prima facie case established. He initially addressed me by making some criticism of what he suggested was the credibility or lack of credibility of the witness in respect of the first incident relating to the $20 to Mr Poupouare. However, as I indicated to him, when one is considering an application of this sort, the basis of the attack which can be made at that point, is to claim that even if the petitioner's case is accepted in its entirety it does not constitute the offence which is the subject of the charge. So that I put aside entirely any question of the credibility of Mr Poupouare and deal with the matter on the assumption that his evidence might be totally acceptable. The question then arises: Could the Court then consider that the evidence amounted to the giving or offering of valuable consideration with the corrupt motive of influencing a voter?

Let us be well aware of what the reality of the situation was. This was a social occasion where everybody appeared to be having a good time and enjoying themselves in a friendly atmosphere. Mr Poupouare and Mr Henry are friends, or at least had been friends prior to that evening. Mr Poupouare had run out of cigarettes, and he said he did not have any money, and none of the other people round him had any cigarettes, so he went over to the man whom he described as his friend, Mr Henry, and asked for money so he can buy some. The price that would be required was $1.04. He agrees if he had been offered $2, which would have been more than sufficient, that would have been quite acceptable to him. Surprisingly, and perhaps because Mr Henry had only a $20 note, the larger denomination was offered, but it was made clear that the change would be expected. Mr Poupouare acknowledged that had he then gone to get the cigarettes, which in fact he didn't, he would have immediately given the change to Mr Henry so that he would then have only kept for himself a dollar and 4 cents worth of Mr Henry's kindness. He also acknowledged that he would have regarded it as his obligation in due course to return the money that he borrowed - so that it was a loan. Nevertheless making a loan available to somebody else who needs one is I suppose valuable consideration but we are taking things somewhat to extremes if we regard lending a man $1.04 to be valuable consideration. Nevertheless, technically, that is what it was.

Later that evening a quarrel developed between the two men and some fairly undignified behaviour took place between them. Mr Poupouare had asked for a ride home - again this was not volunteered by Mr Henry; Mr Poupouare had asked for the ride and on the way home in political discussions they had a quarrel and there was some unseemly behaviour as a result of which at one stage Mr Poupouare thought that he made certain observations he might be put out of the car. Since that time it is acknowledged that Mr Henry has not asked for the money back but that is not the basis of the allegation that is in the petition. The allegation is that he gave him money that night, and the question which must be asked is whether that money which was made available to purchase cigarettes (but not in fact utilised) was given as a result of the request and consented to for the corrupt purpose of influencing Mr Poupouare's vote. This matter in my view is a trifle. It would be a poor situation on a social occasion if one friend when asked could not lend another friend a dollar or two for cigarettes. The only change from the ordinary friendship relationship which arose is that in about a month's time the general elections was due, with Mr Henry a candidate.

The question arises does what would ordinarily be regarded as routine friendly gesture become transposed into a matter of gross political irregularity because one man has become a candidate? I think it would be an extraordinary thing to suggest that the man who has been asked for the favour should be required to change from his own ordinary disposition and become so narrow minded and punctilious that he stands upon his dignity and says, "I must not do what I would ordinarily do because next month I am a candidate and you might be biased in my favour to change your vote."

Electoral discipline is important. But that would be taking the matter to absurdity. No Electoral court would consider such a trifling offer to be a bribe. Indeed not even an offer but a response to a request on a social occasion. Corrupt intention is at the heart of these cases and therefore even if the evidence offered on behalf of the petitioner in respect of that incident is accepted as hundred percent accurate, I would decline to find that element capable of being inferred from that incident and I disregard the subsequent quarrel and the non return of the money by Mr Poupouare. Concerning that conduct I say nothing except that not surprisingly by having possession of the money he might thereafter prove difficult to part from it.

On the other charge which related to the offering of $5 by Mr Lionel Brown at the school we were entirely dependent upon Mr Papatua. He was an unusual witness, very nervous. I thought his nervousness to start with was just the tenseness of the Court appearance but it certainly looks as if he is in some emotional distress over these affairs. Where the truth of it lies one cannot say, but he was forced in cross examination by Mr Henry to acknowledge that not only had he told Mr Lionel Brown earlier in the week that the story was not true but he agrees to us now that the story is in fact not true. I cannot fathom the depths of his nature to see where the truth lies. All I know is I constitute a court of law, and can only act on sworn evidence, and when the only witness to depose retracts the allegation then there is no evidence upon which any finding could be made. It is quite clear that Mr Ingram was taken quite by surprise by the about face of his witness and he had the very good sense, and I might say, the grace not to press further a matter which was obviously untenable.

For these reasons the petition is dismissed and I gave some considerations as to whether or not costs should be awarded. Had the case been brought only upon the basis of the cigarette incident which I regard as an absurdity, I think I would have awarded costs against the petitioners, but they were faced with what appeared to be valid evidence from the witness, confirmed indeed by the fact that the witness had made a prompt complaint to the police about it, a complaint which now appears to be ill founded. No blame could be put upon the petitioners for believing that they had a justifiable cause to ventilate so that although I gave thought to the question of costs I do not aware them because the petition was on that ground at least bona fide brought. The petition is dismissed.

SPEIGHT
CHIEF JUSTICE