Electors of Mitiaro v David [1983] CKHC 6; Misc 107.1983 (2 December 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
MISC. NO. 107/83

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

AND

IN THE MATTER
of a Petition by Ten electors of the Constituency of Mitiaro
PETITIONERS

AND

NGATUPUNA DAVID
of Rarotonga, Public Servant
FIRST RESPONDENT

ANDREW MATA TURUA
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

NGAMATA MOO
of Rarotonga, Returning officer for the Constituency of Mitiaro
THIRD RESPONDENT

Counsel: G.A. Henry for First Respondent
T. Manarangi for Second and Third Respondents
V. Ingram for Petitioners

Dates of Hearing: 29th, 30th November 1983 and 1st December 1983.
Dates of Judgment: 2nd December 1983

DECISION OF SPEIGHT C.J.

This is the decision in the Mitiaro petition. There are two areas which have each given me considerable trouble. One is the difficulty of resolving matters of facts, because it is hard to know in the face of direct conflict of evidence which witnesses to accept especially recognizing where the onus of proof lies and that proof is required to a high standard in respect of allegations of electoral misconduct. There is also a difficult question of law that has troubled me. I also recognize that the people whom I have had to listen to and assess are total strangers to me, and the view which I may take as to their credibility might not necessarily be shared by those who know them better, but that is always the situation in proceedings of this sort and I must attempt to assess credibility by demeanour and by trying to apply common sense and logical tests to the likelihood of what one or other is saying.

I will deal with the allegations in the same sequence, with one exception, as they are set out in the petition. The first need detain us only for a moment and that was the allegation that money was offered to the girl Taputoa by, Rongo Katamiro on or about the 28th October. The girl said that she had a visit from Rongo and there was some talk about whether she would follow him, which in the electoral context seem to have come to be understood as having a voting significance. Although some mention was made of money, the witness was somewhat confused and said that she didn't know what it was about. Mr Ingram, and in my view very correctly, abandoned her as a witness who could support the first allegation and we have not been troubled with that since then.

The second related to the allegation that Tuavai Tereapii was, so it was phrased, "offered employment" by Dashwood and Tunua Ingaua. That is not strictly correct because he had employment, but it was a question of whether overtures were made to him concerning his future employment. Although Ingaua was recited in the pleadings, there was nothing of any real significance from Tereapii as to anything particularly harmful or suspect said to him by Ingaua. It was really a question of what Mr Tereapii said about Dashwood. He says that Dashwood told him, if one takes the inference, that he would only be able to ensure continuance of his employment in the Department if he voted for the Cook Islands Party candidate. He was alleged to have said that if the Democrats were to win, he Dashwood would go home and Tereapii would follow him. In the context of the general practice of changing governments changing CAO appointments that was capable of being understood and in my view was meant to be understood as saying that Dashwood would lose his job if the Government changed and Tereapii would too so that it would be in Tereapii's interests if the CIP candidate won the election.

Now unlike special appointments such as the CAO government employment does not usually change with the change of Government and it was not suggested that if Tereapii did not vote for the CIP party he would be sacked. Had that been said that would have been a threat of undue influence under section 71. But he was not threatened that the CIP would sack him. The allegation as I have just said was that he was told the Democrats might sack him if they won. Therefore it would be in his interests to see that the CIP candidate was successful. Dashwood says that he had some conversations with Tereapii for whom he had secured employment, and on whose behalf he said he felt some concern, but only in the most general and innocuous way of encouraging him to work harder to keep his job. Dashwood denies that there was any mention of the elections or consequences of the elections. I have given consideration to the conflicting evidence. In my view Tereapii was honest and I preferred his evidence to Dashwood's. But I have to examine the reality of what it was that Dashwood was saying. He did not say that as CAO he himself would sack Tereapii, if the Democrats won. It was not a threat. It was a prediction. I accept that Dashwood was telling Tereapii why it would be to his advantage if the CIP people won, but in my view that was not a bribe or a threat. Was it an inducement so as to constitute undue influence? When questioned on this rather debateable point Mr Ingram agreed that he could only come within the definition of undue influence, as defined in Section 71, if the threat of harm was one, which Dashwood would have some say in bringing about. I think I correctly understood the concession which Mr Ingram made namely that he had to convince the court that what Dashwood was saying was that if he went down, he would see to it that Tereapii went down with him. The evidence fell short of that. It was a warning and a scare that it was in Tereapii's interests in view of his defection from the Democrat party and his new adherence to the CIP Party which had got him his job to see that the CIP party stayed in power. But that is not a corrupt practice, for there is no satisfactory evidence that Dashwood was threatening action by himself against Tereapii's interests. So although the factual allegation was in my view, proved, it did not from my interpretation of the law amount to breach of electoral practice. However, my conclusions on this have some relevance to the question of Dashwood's credibility. I have believed Tereapii and I have disbelieved Dashwood and that is a matter which is of very considerable relevance when we come to another part of the case. Before leaving Tereapii, I think it is convenient to move forward to the last allegation which was made, that the offer of drinks and the invitation to him to participate in an election night party constituted an offer of treating.

The submission was that Tereapii was thought to be a waiverer and that he was invited a few days before election day to an election night party as an extra inducement to him to vote for the CIP candidate. But the evidence of the two crucial CIP committee men, the Chairman, Aupuni and the Deputy Chairman, Ingaua were that they believed that they had completely won Tereapii over to the CIP party and that he was in their view, a loyal supporter. Tereapii agrees that he told them that he was now a CIP man. Although there is some discrepancy as to who the party was for, I imagine all or most loyal supporters would have been welcome and it is not an inducement to vote to say to a fellow member of the same party, "If we win we will have a celebration on election night" - which I imagine is almost universal in politics everywhere. Indeed I am not too sure, that to invite a friend or a political enemy to a post election drinking party would be a bribe. So I can see no room for considering there was treating or offer of treating in respect of Tereapii.

That brings me to the third issue, and it is a very important me, concerning the girl Vavia Mapaa, known as Kite. She said she was promised that if she would follow the Deputy Chairman of the CIP committee, Mr Ingaua, he would get her a job at the Public Works where he is employed. It is true he is a mechanic and more sophisticated people might have questioned his ability to get a job, presumably in the office, for a girl. But she said she believed him and she regarded him as an honest man who would be able to do what he promised. I believe her to have been an honest and a truthful girl. But that is not the issue. It was for the defence, after that fairly strong evidence was called, to show either that it had not been proved that the offer was made, or to challenge whether if the offer was made that it was a genuine one or one done in jest in the way that many political supporters do at election time, shouting the merits of their party or their candidate. The defence called three witnesses, Mr Aupuni, Mr Ingaua and Mrs Aupuni. Mr Aupuni knew nothing about it. He was drunk and he had passed out long before this happened. That was at about 6 o'clock. Mr Ingaua however is the man against whom the allegation was made and he said that he had no knowledge of it because he was very drunk that night and he couldn't remember a thing. He was a most unimpressive witness. I had no confidence in his truthfulness at all. If it had been left at that then I think I would have come to the conclusion not only that Kite was telling the truth that these words was said, but that the onus which would then be upon the man who said them to raise the question as to whether they were said for an improper motive. So we had Mrs Aupuni. She was a very confident, clearly spoken witness. A somewhat formidable lady despite her diminutive size and she said that Ingaua was hopelessly drunk, so drunk that he did not know what he was talking about and that the following day he did not remember. Well, it is true that people who get drunk sometimes do not remember the following day what they have said, but that does not mean to say they did not know what they were saying in a stupid way at the time they said it. And I thought that Mrs Aupuni was exaggerating and trying far too hard when she said time and again that this man was so hopelessly drunk that he did not know what he was saying. Indeed the very account that she gave of the exchange of sentences between Kite and the man indicated that he was capable of assessing sensible remarks and sensible questions and replying to them in the appropriate way. But the question which is raised is not whether these remarks were said. Given my acceptance of Kite and given my acceptance of Mrs Aupuni it is clear that these remarks were made; but she says it was one of those acts of drunken bravado that men with loose tongues will say in a reckless sort of a way as a joke, or a bit of a party lark, and she said that the people there all laughed. Kite was only asked in cross-examination whether she laughed and she said she did not. And it is a disadvantage that Kite was not asked whether the other people treated it as a joke. Other evidence concerning her behaviour on the church incident seems to show that she is a sensitive girl and she probably took his remarks seriously and was offended. But I have got confident evidence from Mrs Aupuni that everybody laughed and I have evidence that although he still had some of his wits about him, Ingaua was in a pretty stupid condition. The ingredient of the offence that I am concentrating my attention on is not whether the girl took it seriously. She did. But whether it was made with a corrupt and serious intention by Ingaua or whether there is a reasonable possibility that he was fooling at the time. In the circumstances I am not satisfied that the evidence goes to the extent of showing that within that company in front of all those people that the remark was intended to be taken seriously and on balance that allegation fails.

I come now to the most serious of the allegations and the one which has given me the most concern. That is the evidence of Moeau that on a number of occasions he was offered or encouraged to believe that he had the chance of a job which he badly needed in exchange for a promise to Mr Dashwood, the chief Administration officer that he would support the CIP candidate and try to persuade his family to do the same. Mr Moeau seems to be an intelligent and well spoken man and a shrewd man. The question I have to ask myself amongst others is whether he is too shrewd. Certainly he bartered promises of influencing his family's vote against promises of a Government job. He was criticised for dissembling by telling Mr Dashwood that he would use his influence on his family when he acknowledges that he had no intention of doing so and did not do so. Sometimes one will go along with a person who button-holes one and agree with him rather than have a dispute or argument, just to avoid trouble. But Moeau did more than this; he said he was faced with an improper offer by the CAO and he agrees that he deceived that man by falsely saying that he would influence his family but he did it because he wanted the job and he was deceiving Dashwood not just for the understandable and forgivable motive of avoiding a political chit-chat but to encourage Dashwood to make good his offer of the Government job. So I do not think too much criticism can be levelled at him for playing the other man at his own game. The two crucial questions are - Was Moeau lying or was Dashwood lying or am I left in that state where the onus has not been discharged, remembering how high a standard of proof is required. I have asked myself why Moeau should lie. He is an unusual man. He was very positive in his evidence, and in some respects, he was too positive. He was badly astray in respect of one of his dates. One often has doubts about over confident witnesses such as Moeau and such as Mrs Aupuni. I have given that aspect much thought and I have asked why he should lie. And I take into account the criticism which was made of him by Mr Henry that although initially he should have cause to be grateful to Mr Dashwood for trying to get him a benefit and trying to get him the job, that initial gratitude has turned to spite because of his disappointment that in the end he did not get the job and he might well have been blaming Dashwood for that. Dashwood on the other hand says that he put no pressure on Moeau at all. He claims that politics was never mentioned just as he said they were never mentioned with Tereapii. He says his motive was purely out of kindness and doing his duty as a CAO.

I look at the whole background of the times that these people were going through. There was pressure going on the voters during the campaign no doubt about that. And doubtless pressure was going on from both sides. The incident of Kite which I am prepared to treat as a joke, but a very risky joke, shows that talk of offering jobs for political support was not unknown in this tight little community and I have already said that I actively disbelieved Dashwood over the Tereapii affair although that charge failed because it does not fall in the definition of the prohibited conduct. But it shows that Dashwood was in that instance using job security as a political debating weapon. One of these two men is a liar and I have already rejected Dashwood as an unreliable witness in respect of the other incident. Analysing it the best I can I see no reason for rejecting Moeau as to this occasion. But it is to be noted that the successful candidate Mr David took no part in this incident nor is there the faintest piece of evidence that there is any connection between Mr David and Moeau or Mr David and Dashwood. I cannot speculate. There is no evidence. So the finding that Dashwood made this offer to Moeau is not the end of the matter. This was one act by a man who has not been proved to have any contact with the candidate or whose conduct has ever been shown to have come to the knowledge of the candidate and I have therefore moved from this difficult area of fact to an equally difficult area of law. What is the effect of me offer of bribery (which was not acted upon as I understand it) by a person who is not shown to be connected with the candidate? I recognise as with everybody else in this room, as anybody else in the Cook Islands would know, that Civil Administration Officers are frequently, although not always, put into their job by the ruling government. And I am not dealing with this in an arid lawyer's background. I am bearing that fact in mind and I will come back to it shortly. But in attempting to resolve the difficulties I have faced on this question I have had to resort to the law and there are several passages in Halsbury's Laws of England, 4th Edition on the subject of Election which I will read to you quite quickly: Para. 780, Vol.15 on Elections:-

"Due proof of a single act of bribery by or with the knowledge and consent of the candidate or by his agents, however insignificant that act may be, is sufficient to invalidate the election. The judges are not at liberty to weigh its importance, nor can they allow any excuse, whatever the circumstances may be, such as they can allow in certain conditions in cases of treating or undue influence by agents. For this reason, clear and unequivocal proof established."

You will note that due proof of a single bribery by or with the knowledge and consent of the candidate or by his agents however insignificant that act is sufficient to invalidate the election. So we have to look at the question of agency. I turn back a little earlier in Halsbury, para. 698 and 699:-

"In order to prove agency it is not necessary to show that the person was actually appointed by the candidate or that he was paid. The crucial test is whether there has been employment or authorisation of the agent by the candidate to do some election work or the adoption of his work when done."

Now I digress to emphasise that this case is not of acts committed by a chairman or a deputy chairman of a campaign committee such as Mr Aupuni or Mr Ingaua. Para. 699:-

"It would appear that stricter evidence of agency is required where only one act of corruption has been committed. In strict logic, if a man would be an agent if he was shown to have corrupted me hundred people by paying them five pounds each, then, if he corrupts only a single man by giving him a glass of beer, he ought to be regarded as an agent equally. Nevertheless it would appear that where there is satisfactory proof that it was intended that an election should be honestly conducted and in accordance with the law, strong evidence of agency is required in order to fix the candidate with the responsibility for a single unlawful act on the agent's part."

And in the Mitiaro decision reported in 1979 Sir Gaven Dome discussed this question of agency in the same vein at page S. 8 when he quoted the Bay of Islands Election Petitions case:-

"The entrusting to an agent of the acts to be done may either be in express terms or arise from implication. As was said in, The Dungannon case 3 O'M & H 101, 'The circumstances of each case may differ, but that implication ordinarily must arise from the knowledge which it appears that the candidate has of the part which the person is taking in the election.'"

And so on and the rest of the passage can be read with advantage. There is another passage in the Mitiaro case that I will refer to in a moment.

Now in our system, the CAO is the agent of the Government, and he is usually put there by the Government because he is a Government supporter and quite properly he will be in tune with the decisions of Government Administrators. But he is not by virtue of his appointment an agent of the political party even if it is the ruling party, let alone is he by virtue solely of his appointment the agent of a political candidate of that party. He is an individual in the community. Now cases might arise where one man, a private individual, had a very substantial financial interest in the outcome of an election as a result of which it might be much to his advantage that one or other party succeed. Perhaps he is hoping for a lucrative contract and so he might of his own initiative distribute bribes, or inducements to friends or strangers, to forward what is in effect his own personal financial interest. So one asks, What is the result of such conduct by a man who is not shown either to have been employed by the candidate, or to have had his actions adopted by the candidate. I think that the answer is shown in the summary which Sir Gaven gave at page S.23 of the Mitiaro petitions. When dealing with the powers of the court under section 79 he said that a Judge can determine that a candidate has not been duly elected on grounds including:

"1. Commission of corrupt practice as defined in sections 69, 70, 71, or 72 by the candidate or his agent or agents."

(It will be remembered from para. 780 of Halsbury, that if it is sheeted home to the candidate or his agents one act alone will suffice.)

"2. The existence of general bribery and general treating at the election, whether brought home to the candidate or his agent, or not."

So general bribing or general treating will so pollute the election that the result is not a due election. In my view that answers the situation here. A number of bribes so numerous as to constitute general bribery make the election unsafe; but one isolated offer, not authorised or proved to have been adopted by the candidate by a person who is not appointed by the candidate and is not shown to be acting with the candidate's knowledge does not amount to the electoral offence for it has not been sheeted home to the candidate, and for that reason although I have concluded that I disbelieve Dashwood and that there was political talk along with the offer of the job it does not in this instance prove the case.

Now some may say that this decision is lawyers law and it disregards of the reality of the Cook Islands situation relating to Chief Administration officers, who may well attempt to advance the candidates’ cause as their own cause. But if we put aside for a moment the fact that Mr Dashwood is the CAO and regard him as a member of that community, the situation in fairness is the same that any private person is in. If it is shown that somebody whose interests coincide with those of the candidate, that does not fall within the definition of a corrupt practice by the candidate and it would only upset the electoral result if it was so widespread as to qualify as general bribery or general treating and that has not been made out in this case. I acknowledge that the CAO will be in a difficult position if he is tempted as he naturally must be tempted to wish that the party which is the Governing party at the moment should continue in power but those temptations fall to other individuals too. An individual who so acts whether he is the CAO or whether he is a private individual, of course risks a criminal prosecution because criminal prosecutions for bribery can be taken in the criminal courts regardless of an election petition, and anybody regardless what position he holds in society who indulges in such a practice would take that risk at his peril. But such a person does not in my view jeopardise the candidate who has not been shown in any way either to have authorised his conduct in advance by employing him as a general agent or, becoming aware of what he is doing, has adopted or acquiesced in that behaviour. For these reasons having examined all the individual items and confessing that the case has been one of the greatest difficulty, I express my obligations to counsel who have put this thing forward to me so helpfully. I cannot conclude that any of the grounds alleged against Mr David, whom it will be noted has never had his conduct mentioned at any stage of the proceedings, is to be impugned for electoral misconduct nor has there been general bribery or treating on the scale which would require me to declare the election void. Consequently the petition is dismissed.

SPEIGHT C.J