Electors of Ruaau v Napa - Decision [1983] CKHC 3; Misc 26.1983 (30 March 1983)

IN THE HIGH COURT OF COOK ISLANDS
HELD AT RAROTONGA

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: Messrs Matheson and Mayne for petitioners
Mr Ingram for first respondent
Messrs Mitchell and Manarangi for second and third respondents

DECISION OF SPEIGHT C.J.

This is the final decision in the Ruaau electoral petition. I have given two preliminary rulings which are now incorporated in the final decision. On the 11 May 1983 I heard arguments concerning grounds 2(d)(ii) and 2(d)(v) and I ruled that they had already been the subject of a final determination by the High Court, judgment of Mr Justice Dillon and that cannot be the subject of appeal and secondly 2(d)(ii) and (v) had already been determined and I now incorporate that finding in my judgment. Yesterday morning I dealt with grounds of procedural matters in 2(d)(iv) and ruled in respect of that, that there been no material failure by the Returning Officer and I incorporate that ruling in my final judgment. 2(d)(iii) had been abandoned which only leaves 2(d)(i) as treating.

I can be much briefer on this topic. First because the law has been discussed extensively in the two earlier cases this week. Secondly evidence here is in a much narrower compass than in either of the Atiu cases. Two points need to be determined - the question of agency and the question of inducement.

Agency was not dealt with in the earlier cases because the challenged actions were those of the candidate himself. As to the facts concerning agency it was noted by Dr Matheson in his opening address that Mr Napa was present for a considerable part of the day at Mr Munro’s place and there was no doubt that was the Democratic Party’s headquarters for that electorate for election day. There was evidence from Mr Matheson that a meal was prepared. We slipped into the habit of calling it an "umukai" but nowhere was that mentioned in evidence. It is certain that food was available and soft drinks from time to time. Evidence was given that Sir Thomas Davis called at one stage during the day so there is no doubt that was a gathering for party workers and those who were present as part of the team were entitled to be fed and they were.

Then we came to the evidence concerning the man known as Tiavare or Geoffery Heather. He was there but what his role was at any stage was not proved. Dr Matheson in his final address used a very appropriate phrase when he said that could be assumed that those present were either Democratic supporters or person who found themselves "socially comfortable" in that gathering. But we are concerned with Mr Geoffery Heather and what if any was his relationship with Mr Munro and with Mr Napa. As to his activities, we know he provided Kimi Tuaputa, who was already there as a worker, with transport to the poll and later in the day did the same for several of his employees but that is not the question. Was he authorised? It is important to realise we must look for evidence because one must not speculate particularly when we are asking whether there was that degree of agency which must be proved in these cases to link the candidate to the alleged agent. Two references to authority were quoted by Mr Ingram: Bay of Islands Election Petition [1915] NZGazLawRp 60; (1915) 34 NZLR 578 and Blackburn Case (1869) 1 OM & H 198. To prove agency there must be shown to be some political nexus between the candidate Harry Napa and Geoffery Heather. It would seem there must have been a political relationship between Mr Napa and Mr Munro, but there is no evidence of agency or even contact between Mr Heather and Mr Napa. One can assume he was a supporter. The court has to be satisfied he was acting then a role as agent. It must be shown that Mr Napa had appointed him or approved of his actions - the evidence falls short of showing that. It is of course a difficult relationship to prove. The facts may be suspected by the petitioners; the facts may be known to the petitioners; they may be known to others away from the court, but one cannot make findings of agency unless evidence is given from the evidence box. One of course does not always get direct physical evidence. It may be inferred but it must be legitimate inference and not guess work. Otherwise a political supporter arguing with his acquaintances in favour of a candidate could impeach the candidate without authority. Indeed a devious and ill motivated supporter of an opponent could pretend to canvass in a most blatant way, when he had no authority and indeed had perverse motives. The evidence before me falls far short of demonstrating that there was an appointment of an agent, either directly or indirectly, and of showing that that agent was acting within the scope of his authority. Having said that it must be apparent that petition must fail. However on the other argument of inducement I propose to give my conclusions out of courtesy to counsel and the parties and particularly because I recognise that evidence concerning inducement might in some cases be so strong as to provide legitimate grounds for inferring agency. Even if it were sufficient here to say that Mr Heather was an agent (and I do not so find) the evidence falls short of inducement. Two witnesses only Kimi and Mii, were spoken of in this regard. Kimi Tuaputa was taken to poll by Mr Heather. That in itself is not objectionable. Transporting voters, especially friends, is not corrupt. It may be if linked with inducement. It seems that Kimi was himself a party worker and apparently had been requested to help prepare food at Munro’s by a friend Roriki. He did not give evidence of anything said to persuade his vote. It was certain that when he was taken to the poll booth he knew he would be taken back to Mr Munro’s place and partake of what food there was there. That was related however to the course already set for himself earlier in the day when he had accepted the invitation to be a worker. That came from Roriki. It looks as if he was a supporter of Napa. But in any case, if one has joined in the preparation of food, it would be natural one would expect to go back to the place where one had been working to partake of the food which was prepared. I noted in the Te-Au-O-Tonga petition, Sir Gaven Donne, at p.S47 spoke on the Cook Islands’ tradition of hospitality in connection with food in relation to the question of inducement offered to voters who had travelled from New Zealand and were at the airport. He accepted the submission by Mr Brown acting for the Cook Islands Party that what was done there was traditional with the practice of Polynesians in these matters and in that context did not count as treating. But that has to be kept in perspective, and I would not think and I know Sir Gaven Donne would not wish to have been taken as saying that less stringent rules apply in Cook Islands than elsewhere. He was referring to the length of journey of these people and on the matter of being given food, he put that down to hospitality.

The other witness we had was Mii he was given transport from work by Mr Heather and was told by Mr Heather that after voting they would go to Mr Munro’s place. No evidence was given as to anything being said as to why, and I must deal with evidence put before me, not with rumour or speculation. No reason was given why they would be going to Alex Munro’s place. He did not know and he was not asked. One may suspect he knew, because he was a friend of the other boys, but no evidence was put before me to say he was told. If he had participated in the feast there then the inference may have been taken. But the fact was he was there for ten minutes only. He did not receive the food or drink and he was taken back to the plantation to get on with his work. The purpose may well have been for the change of drivers which took place at that stage. It is to be noted that about midday he went to lunch elsewhere with a friend who had been working with him. It is certain he returned later in the afternoon to Munro’s place but they were a group of young men who knew each other. He was a friend of Kimi’s and apparently knew there was food there, and it is not surprising he and his friends drifted along to where they knew there was free food. After the poll that evening a party developed but that was many hours after everyone had voted. There was also a remark made to him at the poll booth by Mr Heather which could have been given to show inducement had agency been present. The "top line" remark shows that Mr Heather wanted him to vote for Mr Napa. That was taken by Mii as something of a playful remark. It was treated as such and he did not take it seriously. Kimi said he heard the comment but did not know what was meant by it. That was the closest to prove inducement but in the context of the evidence from the two witnesses it was apparently no more than a jocular remark.

Accordingly I indicate on the inducement ground and on the agency ground the ground 2(d)(i) fails along with grounds (ii), (iv) and (v). As required under section 79 subsection 1, I determine that the candidate Harry Napa was duly elected and I will in terms with section 79 subsection 2 transmit that information to the Chief Electoral Officer.

SPEIGHT C.J.