Electors of Ruaau v Napa - Further Ruling [1983] CKHC 2; Misc 26.1983 (24 May 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
MISC 26/1983

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 a Petition by a Candidate
and Electors of the Constituency of Ruaau
PETITIONERS

AND

HARRY TAUEI NAPA
FIRST RESPONDENT

AND

ANDREW TURUA
SECOND RESPONDENT

AND

JIMMY TEINAKORE TAMAIVA
THIRD RESPONDENT

Counsel: Mayne for Petitioners
Ingram for First Respondent
Mitchell for Second and Third Respondents

Hearing: 21 and 23 May 1983
Ruling: 24 May 1983

RULING OF SPEIGHT CJ

After the General Election, the Chief Electoral Officer declared the results of the Ruaau Electorate as follows:

Mr Pirangi 174

Mr Napa 176

Dr Williams 81

and declared Mr Napa elected. Mr Pirangi has within the appropriate time filed a petition for inquiry under section 74 of the Electoral Act 1976 No 3. A number of grounds are set out for Mr Pirangi’s dissatisfaction and a full hearing of the Electoral Petition will take place in this court in the near future.

In the meantime, Mr Ingram on behalf of Mr Napa has moved to strike out part of the allegations. No specific provision for such an application is made in the Electoral Act but I have no doubt it would be within the court’s inherent jurisdiction, if it appears that any ground pleaded is not a valid one. In any event, if I accept Mr Ingram’s argument, I could indicate that no consideration would be given at the hearing to grounds which are no longer open to the petitioner.

Under the Electoral Act by section 60 there can be a recount in the High Court at the request of any candidate. Such an application was made by Mr Pirangi and it was heard before Dillon J in this court on the 23^rd April last. After considering the matter and following the statutory procedures which appeared to him to be required for a recount, Dillon J confirmed the initial count which had been made by the Returning Officer.

Mr Ingram’s present application is based on section 60(9) which reads:

"Every determination or order made by the Judge under this section shall be final and conclusive and without appeal, whether to the Court of Appeal of the Cook Islands or to Her Majesty the Queen in Council or otherwise, and shall not be questioned in any way."

His argument is that two of the five ground of complaint alleged by Mr Pirangi have already been dealt with by the High Court under the section 60 procedure and have been finally determined with, as Mr Ingram submits, no right of appeal. He specifies two of Mr Pirangi’s complaints as concluded but that determination viz., para. 2(d)(ii) and 2(d)(v) of the petition. They read as follows:-

"(ii) The Returning Officer wrongly rejected as informal and failed to allow and count valid votes cast by electors.

(v) The Returning Officer wrongly allowed and counted as valid postal votes received by him after the close of voting."

Those grounds relate to the setting aside of certain ballot papers as informal and certain postal votes as being wrongly allowed. It is clear that under section 58 the Returning Officer makes decisions as to informality and sets aside such papers and also does not include postal votes if they are out of time (section 73G and 73L(2)(e)). It also appears that from an affidavit filed that Dillon J. on the recount checked the votes set aside as informal and concurred in the decision reached by the Registrar and also investigated the postal vote dates.

At first reading, Mr Ingram’s submission concerning section 60(9) appears unanswerable. However, Mr Mayne’s submission is that that the recount process authorised by section 60 only requires the arithmetic, that is the addition of the total number of votes for each candidate to be checked by the High Court but that the exclusion of appeal does not extend to the other functions performed by the Returning Officer under section 58 viz., in particular does not include the setting aside of informal votes which procedure of course implies that that the Returning Officer shall have made a decision on the face of the ballot paper. For the purpose of our considerations, it must be remembered, putting aside the preliminary count, that the Returning Officer has two quite separate functions dealing with different documents. Section 57 (Scrutiny of the Rolls) requires him to check the rolls from the polling places with the master roll and with the counter-foils to ascertain to whom such ballot papers have been issued. This process is to ascertain dual voters and similar irregularities. Section 58 (Counting of votes) ignores rolls and counter foils and deals only with the face of the ballot papers and requires the tallying of the same including a judgment as to informality as disclosed on the face.

In support of his argument that a recount only involves the arithmetic and not the other duties under section 58, Mr Mayne makes three points of distinction between the recount procedure and the election petition. First he points out that section 60(5), the recount may be in the presence not of a Judge but an Officer of the High Court and such person may not have the qualifications to enable proper consideration concerning formality. Mr Ingram in reply draws attention to the fact that the matter remains under the Judge’s control (section 60(6)). Secondly, Mr Mayne says the Judge does not carry out the recount. It is done in his presence whereas under section 74 the Judge "hears and determines". Thirdly he says that the words "in the manner provided in the original count" mean only the counting process. He adds some supplement points viz., at a section 60 recount, a candidate does not have legal representation whereas he does at a petition. Further, that if there were three candidates a recount at the instance of one if final, could prejudice another candidate. I doubt that this would be so if the other had not also asked for a recount. I have considered all these points carefully but am not persuaded that the initial reading and meaning of section 60(9) is other than Mr Ingram contends. It is to be noted that this provision is somewhat unusual. In particular it differs markedly from the New Zealand law which in most other respects has been copied in the Cook Islands procedures. In New Zealand what was usually known as a Magistrate’s recount had no such provision as section 60(9) and considerations of informality of ballot paper could be considered in a New Zealand election petition. It appears that the Cook Islands Parliament has deliberately divided the poll procedures and checks thereof into two parts. The Section 60 gives re-examination of the "counts" to the High Court (not a Magistrate or a Justice of the Peace) and it is declared to be final. All other matters such as the conduct of the election or of the candidates and the irregularities such as non appearance on the roll (section57) and dual voting are also for a Judge of the High Court but under a Section 74 petition. In my view the structure of the Act helps one to interpret section 60(9) as to conclusiveness. If Mr Mayne’s argument were correct, it would mean that only function of a High Court Judge (or other High Court Officer) would be to do the simple arithmetic of counting a few hundreds pieces of paper, arranged one would imagine in separate piles - a most elementary procedure. One asks - Why would all voting papers - not just the counted ones be required to be produced to the Judge (Section 60(4))?

More specifically however, I think it is necessary to examine the wording of section 60 sub-section 5. It reads:-

"The recount shall be made in the presence of the Judge, or of an officer of the High Court appointed by him for the purpose and shall, as far as practicable, be made in the manner provided in the case of the original count, and the provisions of section 57 sub-section (5) hereof relating to the secrecy of the ballot, shall, with the necessary modifications, apply to the recount."

I emphasised that "the recount shall be made in the manner provided in the case of the original count." The question is, "what is comprehended by that phrase?" That is, what is meant by the "original count"? The Acts Interpretation Act says that a heading although not affecting interpretation shall be deemed part of the Act for the purpose of reference. What is "original count", referred to in section 60(5)? If one examines section 58, the word "count" is not used in the body of the text of sub-section 1, 2, and 3. It is used in sub-section 4 but that is irrelevant for present purposes. Although the word "counting" is not used, (indeed the arithmetic process is described as "ascertained the total number of votes") yet the heading for the whole of the section is "counting of votes". In my view it is clear that the words "the manner provided in the case of the original count" as used in section 60(5) comprehends all those steps contained in section 58 under the heading of "counting". I note an additional fact i.e., that certain powers must be implied in the Judge which have not been stated in section 60; yet they are essential if a conclusion as to the successful candidate is to be reached. Under section 58(2) the Returning Officer draws lots where candidates are equal. No such mention is made in section 60 sub-section 5 that if the recount produced an equality, the High Court would have to draw lots, yet on Mr Mayne’s arithmetic - only argument, there would be no such power. Similarly, there is no provision under section 60(6) for the High Court to advise the Chief Electoral Officer that a declaration was correct yet obviously this is essential, so that the High Court has by necessary implications the power and duty to report. These are additional reasons for concluding that the Judge has these Section 58 powers and reinforces the view that the Returning Officer’s function under that section are comprehended by the phraseology of Section 60(5). Accordingly I would be prepared to hold that Dillon J’s procedure in himself checking informality and postal votes was in accord with the requirements, and the determination made by him under that section is conclusive and without appeal. However, to keep the matter within the ambit of the one hearing I merely give notice at this stage that for these reasons I will so rule in respect to grounds (ii) and (v) when the petition is heard.

SPEIGHT CJ