Electors of Matavera v Cowan [1983] CKHC 5 (25 November 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

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

AND

IN THE MATTER
of a petition by Ten Electors of the Constituency of Matavera
PETITIONERS

WILLIAM PAPA COWAN
of Matavera, Businessman
FIRST RESPONDENT

ANDREW TURUA
Chief Electoral Officer
SECOND RESPONDENT

JOHN JOSEPH HERMAN
Returning Officer for the Constituency of Matavera
THIRD RESPONDENT

Counsel: Mr Henry Puna for petitioners
Mr Iaveta Short for first respondent
Mr Tony Manarangi for Second and Third Respondents

Date of Hearing: 24th November 1983
Date of Judgment: 25th November 1983

DECISION OF SPEIGHT C.J.

I have reserved my decision in this case, partly to re-examine the evidence but also to give some thought to making observations concerning developments which these days seem to follow frequently as a result of elections namely allegations that there has been electoral malpractice a matter which must be a little confusing to the voters who are entitled to think that it is their vote not a court decision which should determine the results. A sentiment I strongly sympathise with. The common expression of such allegations are in charges that there has been either bribery or treating. These offences as well as others are defined in our Electoral Act of 1966 and its Amendments and if allegations are made, it is the Court which must be referred to. It is not difficult to understand the meaning of the two terms but from the way in which such charges are multiplying in our community it seems to me that some matters should be put briefly and in simple terms. Bribery is the giving or offering of a gift or other valuable consideration by or on behalf of a candidate to an elector with the corrupt purpose of influencing the elector's vote. And treating is the giving or offering of food, drink or entertainment for a similar purpose. Such challenges have been made quite often of recent times and resulted in court cases in the Cook Islands both in 1978 and in 1983. The definitive judgments done by the former Chief Justice, Sir Gaven Donne, K.B.E. are the Mitiaro and Teau-O-Tonga Election Petition cases in 1978. More recently this year, two decisions of mine in Atiu and one in Ruaau. These cases have called for a consideration of the conflicting situations which arise in the political scene. The need and a right for a politician legitimately to canvass for himself and to achieve popularity amongst the voters, against which there must be a guard against improper inducements so that votes are gained on merit and are not bought by in proper inducement. No politician and no voter lives in a vacuum divorced from the ordinary way of life that he or she pursues at times other than electoral occasions. Happily, civilised communities and this one in particular are based upon friendship amongst their members. There is a give and take of friendship and this is often accompanied by the exchange of gifts or kindnesses such as the offering and the accepting of hospitality. It would be an arid society which lacked these humanising influences. And it would be a sad day if the constraints of electoral law were to require that everyone should at such times refrain from ordinary social contacts and behaviour. In most communities in a civilised world the candidate is not some demigod but is an ordinary man or woman living an ordinary life in the community and he is endeavouring to persuade his fellow citizens that he is a person worthy of their political support. The basic concept is that he should encourage that support at the polls by demonstrating his ability 'and experience as a person and as an administrator to the end that his fellows should impose their trust in him so that he may give such abilities as he has for the future government of their country. To that end political canvassing is not only permissible but desirable so that each candidate should demonstrate his merits to those whom he hopes will support him. Nevertheless, the wellsprings of independence of electoral choice are poisoned if the vote of the elector is based not upon his assessment of the worthiness of the candidate but has been induced by some offer of personal assistance or advantage. The concept is easily understood that the votes shall not be bought, but earned on worth. And buying a vote by offering money or by treating the voter kindly with food or drink or entertainment if it is aimed at improperly inducing the person to favour him who might not have otherwise done so but for this venal offer is outlawed. In practical terms however, this test imposes considerable difficulties in its day to day application. Nobody suggests that a political candidate should retire into a monastery or that he should cut himself from his usual contacts or that he should so modify his way of life as to adversely affect the opinions which his fellow citizens previously had of him as a kindly good natured person or a man of high endeavour. We often see persons who have achieved popularity in the community also acquiring political success. Often the most successful politician is the man who all his life has made a good fellow of himself to his neighbours.

The imminence of political election does not require that, that man or any other candidate should modify his previous way of life by becoming a hermit. For example a man who is a political candidate may have been a prominent member of a sporting organisation. He may from year to year have made a generous donation such as the presentation of a competition trophy and it would not be expected of him that he was debarred from repeating such generosity because it is election year. At the same time of course, it would be expected that he should not make extra capital of that occasion because he was hoping to encourage voters to take friendly view of him. Similarly, a man may be a donator to his church and no improper conclusions could be made if he continued at the same level as previously; a vigorous social worker who goes and helps people for no reward should not be deterred from his ordinary behaviour by the imminence of the ballot box.

On the other hand any suggestion that extra exertion has been expended which would not otherwise have been present but for the need to court the favour of the voters if it is raised comes under close scrutiny in Electoral courts. So too, what might ordinarily be regarded as generosity and kindliness typical of the nature of the individual becomes suspect if it is coupled with exhortations to vote for the particular person. Consequently, the gifts given or kindness offered may at such a time be scrutinised. Typical questions which will be asked are: “Is this typical of the man's way of life?" "Has he done it before?" or is this a sudden advent of generosity? Or again "Has he attempted to convert his usual kindness into a special occasion by drawing attention of those to whom benefit is offered to the fact that he needs their vote?" It is a question of looking at all the circumstances with an understanding eye.

Having said this in brief summary, I think that a scrutiny of election cases causes no great difficulty. The question is, What is the nature of the gift which is offered? Was it usual or unusual? And more importantly what was the purpose with which it was given. Was it for corrupt purposes namely was it intended, putting it in simple language to buy a vote when it would not otherwise be given. In this context the size of the gift is of course important but it has frequently been held that it is not crucial that the gift be large or small. Indeed in many reported election cases it will be seen that the inducements offered have been modest and of everyday variety; now in this case at present under consideration gifts or benefits have been modest. It is suggested that two young women aged 19 and 20 had bottles of soft drinks worth 80c given to them for the corrupt purpose of influencing their votes favourably to the donor; and further that some equally young and unsophisticated youths were deliberately persuaded or an attempt was made to persuade them to take a view favourable to a candidate by allowing them to play on pool tables, on repeated occasions without having to pay the 20c fee which it is said is sometimes the charge for such use.

Such gifts or offers if they were made are at the very low end of the scale when one considers other electoral cases but it must be remembered in some of the villages of the Cook Islands life proceeds on a fairly simple style. The young folk often regrettably are unemployed and in difficult financial circumstances and what might seem to be more affluent members of the community to be comparatively trifling matters might be well be regarded as considerable kindnesses in the eyes of such young people. Another matter ventilated in this case and in previous cases before me in the Cook Islands is one which has given me very great thoughts. It is recognised and proudly recognised that Cook Islands people are amongst the most generous that one can find. A gift to a friend should be responded to by a return gift of equal or greater value. A visitor to one's house, even a stranger should be offered hospitality suitable to the occasion. It would be routine in the eyes of a Cook Islander that someone arriving at one's house whether friend or stranger should be made welcome and if the occasion is appropriate, food or drink offered. I am sure all of us who have the great privilege of living even temporarily in these islands treasure this tradition and hope that it long continues and yet in this case and in others, acts which might thought to be no more than the traditional way of life are put under the closest scrutiny to see if they can be elevated to the category of electoral malpractice. No one is more sorry than I am that the courts have been brought as frequently as they have into election matters.

It must be the earnest wish of all who practice in this field that electoral results should be determined on election day by the ballot box and only by the ballot box and not need any other participation nor investigations. However, the Cook Islands along with the rest of the free world has adopted the democratic system of elections and electoral law. This country closely copied from the English and New Zealand equivalent statutes. Electoral Act was brought into being in 1966 and although it is not exact copy of its forebears elsewhere, it enshrines as clearly as can be, the need for free and clean elections, free from corrupt practices of any sort and it defines with great precision and as rigorously as elsewhere such matters as bribery and treating.

It is well known in 1978 there were several hotly contested electoral petitions which had wide political consequences. Since that day Parliament has seen fit to leave that electoral statute so closely scrutinised and interpreted by the court largely unchanged.

I have listened with great sympathy on this and other occasions to submissions that the matters which the court has to examine in these cases must be heard by an ear and a mind that understands local Polynesian customs. Indeed in his restrained submissions yesterday, Mr Short said in his own words, "That it would be a sad day if those who have in the past offered to or enjoyed hospitality of their friends and even to comparative strangers should be restrained and alter their way of life so that they would retreat into an inhospitable shell contrary to life-long tradition." One must echo that sentiment and view whatever is proved to have happened on any given occasion against the local social background. I do not find any difficulty in reconciling this with the test that the law lays down. Namely, was the challenged behaviour, if proved, done with a corrupt motive. Corruption can quite easily be measured and indeed, must be measured against the mores of the time and place. What then was proved here?

There were four allegations of malpractice brought against the successful candidate William Cowan. No.3 and No.4 of those were abandoned. No.1 related to an occasion when some weeks before election day, two young women, Moeroa Taramai and June Rereiti were at Mr Cowan's place in Matavera. These are extensive premises and consist of a shop facing the main road, behind which there is a large covered area. Then a gap to the house proper, a kitchen at the rear, then a garage and then a large shed. The evidence clearly shows that Mr Cowan is a very well known local identity in Matavera. He has for many years made his shop and his home a centre for local people to gather. It is immediately opposite the large football ground and alongside it a tennis court and an athletics field associated with the local school. As is well known in this community, village people tend to gather together in the local areas and they seek some convenient central gathering point to meet together particularly after sporting occasions. It seems that in Matavera Mr Cowan's shop and home have been the rendezvous for people to gather socially in an informal way for many years, particularly young folk and he has gone some distance towards attempting to cater for this need for a gathering point and he has provided in his shop several pool tables and from time to time he shows video and has housey sessions and a certain amount of social drinking goes on there. Within the Matavera community it is the focus of many young people gathering particularly at weekends. Whether his motives have been purely benevolent or have a commercial motivation related to trade in his shop is irrelevant. These two young ladies say that on a Sunday, late September or early October which would have been about five or six weeks before the general election of the 2nd November, the two of them went together to Mr Cowan's place. They had not been specifically invited there but they knew him and his family quite well. They were on friendly terms and they knew that they would be quite welcome. They saw 'several young fellows playing pool in a room at the back of the shop and they saw Mr Cowan seated nearby with several friends. Mr Cowan is apparently a convivial man and he and his friends had been obviously drinking for sometime. The two young ladies were invited to go and join Mr Cowan and their friends which they did and they chatted together and had some amiable conversation for a while. Mr Cowan offered the girls sane beer to drink but they do not take alcohol so they declined. However, they still chatted and joked with him and his friends for a while and Moeroa acted as a semi barmaid by bringing out bottles of beer from time to time which were available and pouring the drinks for Mr Cowan and his friends. As is perhaps not uncommon on such convivial occasions, although the girls had previously declined a drink Mr Cowan pressed them again and apparently he called for his son, a youth of about 20 to go and get two bottles of lemonade. These were brought forward with some glasses and the girls accepted them and they each poured themselves a glass of lemonade and drank them and then as it was beginning to rain they moved from the outside into the covered area where young men were playing pool and according to their evidence, they passed glasses of lemonade around amongst these young people.

Up to this point of course, all this is totally harmless. They know the Cowans. They had not been invited there specifically for any purpose but they were made welcome and in the convivial atmosphere, it would have been less than courtesy if they had not been invited to take some refreshment. The fact that Mr Cowan was a little insistent that they should take a glass of lemonade or a bottle of lemonade is perfectly understandable behaviour against the background for such a gathering. The difficulty as far as the respondent is concerned however arises in that after a while Mr Cowan called one of the young ladies to one side and said to her that he would be very pleased if she would make sure of voting for him in the election which would be coming up in a month's time and she said that he was not to worry about that, he could count on her support. After saying that Mr Cowan then moved across to the other young lady and repeated that request to her with the same encouraging reply. It is not quite clear how long that this had been after the girls had first arrived nor indeed how long after they had been given the small gift of a glass or two of lemonade. It seems that it was about an hour or so after they had arrived and probably anything between ten minutes and half an hour respectively after they had been given the lemonade and distributed amongst their friends. Now this incident is being put forward as being treating or bribing as the giving of gift for a corrupt purpose. It is partially substantiated by the fact that a week or two later the first young lady when at the shop was given a packet of Twisties, a small potato confection by Mr Cowan but even she says she dismissed as being but a friendly gesture. Both girls however say and in wording which is somewhat significantly the same, that when Mr Cowan spoke to them about voting for him, they immediately thought about the free lemonade they had been given earlier. Counsel have addressed me at almost laborious length on the innocent or sinister implications to be drawn from this, but I confess I am quite unimpressed. There is no suggestion that the young women were invited there for the purpose of being bribed, indeed on the contrary, they came uninvited. They joined in a friendly group and were regarded as equal participants. It would have been quite contrary to local practice if they had not been invited to participate of the hospitality there. I think it quite unimportant that initially they refused but that their host pressed an innocuous drink or two upon them later. The only significance is that later in the evening, he suggested to them that he would very much be pleased if they could vote for him. My view of this is that it was something not proved to have been associated with the earlier incident. It is clear that Mr Cowan had been drinking for several hours and that he is somewhat bibulous man and that at the time when he spoke to the girls, he was somewhat drunk. A degree of intoxication is not irrelevant when considering intention. It is regrettable that he was indiscreet but one must recognise against the background that I have outlined that he regarded the girls as friends and supporters and it is understandable if not forgivable that he should say to them in a garrulous way that he was hopeful that they would vote for him and they agreed that they would do so. Whether indeed they meant to do so is irrelevant. Indeed I have found it a little surprising that their somewhat surly attitude in the witness box indicated hostility or an antagonism to Mr. Cowan whose previous relationships with them have been harmless and friendly, and it seems to me that this whole trifling incident has been over-blown by the hot house atmosphere of political intrigue and recrimination which regrettably has generated from the realisation by some local folk in a hotly and bitterly contested election that if the ballot box will not suffice recourse to trumpery charges in the courts may achieve that which election day did not do. I regard this as the merest trifle and it would be absurd to suggest that this could give rise to a finding of intention to corrupt and I cannot make a finding in favour of this petitioner on that aspect.

The other ground is not much more serious. It relates to the use by young people, mainly youths of the pool tables at Mr Cowan's establishment. Evidence was given by two young fellows both unemployed. One aged 20 and the other aged 19. Their names are Frederick Emile and Teokotai Teama. As is unfortunately the case in many areas in Rarotonga, these young fellows have been unemployed for a long time and there is little entertainment they can find. Little to while away the passing days and they have been in the habit for a very long time, certainly over a year of having resort to Mr Cowan's premises to play pool. And they seem to spend an inordinate time at that occupation. The essence of the challenge which is made in this case is that whereas previously the pool tables were required to be paid for before a player could entertain himself with the sum of I think 20c in the slot, at election time and for a month or so before, so it is alleged, the two pool tables in the back rooms were made available free of charge and these two young men say that they played the games freely at that time without pay, whereas in earlier occasions they had paid their 20c. They were cross-examined quite strenuously as to whether or not the habit of charging for playing the game had not been discontinued long before the elections ever loomed. One of them, the second witness Teokotai Team was a very incoherent and somewhat surly Youth and I did not think much could be taken one way or the other from his evidence. The earlier young man, Frederick Emile was somewhat clearer in his evidence and he said he had been allowed to play free only during the campaigning and that previously he had been required to pay. In cross-examination however, he conceded that the free use of the tables had become available at some earlier time. Unfortunately his evidence was not entirely clear as to when this no charge regime was introduced. But there is some justification in the submission made by Mr Short that he did at one stage agree that it had been quite sometime before, perhaps even as early as the end of 1982. He also acknowledged the suggestion put to him that the pool tables were less popular now than they had been some years ago and that their use had fallen away in business premises around the island. The defence on behalf of Mr Cowan called a witness Mr Apo Tangatatutai, a public servant aged 41 - a close friend and bosom drinking companion of Mr Cowan's and for that reason possibly suspect. His evidence on face value was clear. He said that because of the decline in popularity and because of one of, the machines breaking down so that it was no longer capable of being operated on a coin basis, Mr Cowan had decided a year or more even 18 months ago to remove the pool tables to the backroom and let the young patrons play on it free. However, Mr Tangatatutai as with previous witnesses was not very impressive under cross-examination. I thought him evasive and very disappointing. For a man of his years and with his status as a public servant, he ought to have been a little bit more reliable.

Nevertheless he adhered to his story that his friend Mr Cowan had abandoned this as a revenue producing asset and I can accept that there is some basis for Mr Short's submission that with the number of young people who flock to the premises as the only local place worth going to, free use of pool tables would have been an inducement for young men, particularly, those with very little money in their pockets to go to the premises and while there spend what they had in the shop for sweets and biscuits and soft drinks and the like. As I have said this is purely a factual dispute. I am left with conflicting evidence as to when it was the policy of no charge was introduced. If at the time when the election campaigning got under way there was dramatic change from the previous profit making scheme to a free scheme it would not be a very long step to conclude that this was done to curry favour with, the local young men and I think that I would have concluded even though no words were said that this was done to curry favour towards Mr Cowan. If there had been such a sudden change one would have expected clear evidence of that. However, the evidence leaves me far short of that and it is in conflict. I am not persuaded one way or the other. There is some evidence from Mr Tangatatutai, who, as I say, I treated with some reserve but also in cross examination from Mr Emile, that this policy may have been embarked upon as long as a year ago. Long before these elections were in contemplation and as with the previous instance, I cannot find that proof to the required standard, of favours offered, has been made out let alone that there was an intention to corrupt. There were two other allegations but these were abandoned. I heard some evidence regarding me of them and it was very apparent even on that, that it was quite a trifling incident.

In the circumstances, I feel that this is a case where costs should be awarded. I have already said that I deplore the tendency which has arisen for petitions to be brought to the court in an attempt to achieve here on specious grounds that which the ballot box has not yielded. Prior to this case commencing I had issued a stern warning that petitioners should make sure before they presented allegations in court of this nature that they had firm grounds. In my view the grounds advanced here were flimsy in the extreme ab initio and it is an appropriate case in my view for costs to be awarded which are fixed in the sum of $250. The deposit which was lodged as part of the petition shall be applied towards those costs which will of course rest equally upon all petitioners.

SPEIGHT C.J