Electors of Ruaau v Pirangi and Napa [1983] CKHC 7; Misc 104.1983 (5 December 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
MISC. NO. 104/83

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 Ruaau
PETITIONERS

AND

RAYMOND PIRANGI,
First Respondent

AND

HARRY TAUEI NAPA
Second Respondent

AND

ANDREW TURUA
Third Respondent

AND

JIMMY TAMAIVA
Fourth Respondent

Counsel: G.A. Henry for First Respondent
V.A.K.T. Ingram for Second Respondent

Date of Hearing: 23 November 1983
Date of Judgment: 5 December 1983

JUDGEMENT OF SPEIGHT C.J.

Mr Solomona, an unsuccessful candidate in the General Election of 2 November 1983, together with six other electors filed a Petition citing Mr Pirangi the successful candidate as First Respondent and Mr Napa another unsuccessful candidate as Second Respondent. It was alleged that Mr Pirangi and Mr Napa had each been guilty of corrupt practises and/or irregularities which materially affected the result of the election and asked for a determination that Mr Pirangi was not duly elected and that his election was void. Under the Electoral Act and under the prescribed form of petition (Form 13) a Petitioner may ask that some other candidate be declared duly elected but this was not sought by Mr Solomona.

In the election the declared result of the poll had been-

Mr Pirangi 182 votes

Mr Solomona 156 votes

Mr Napa 120 votes

Mr Napa filed a notice in the Court of his intention to oppose, but on my reading of Section 75 this was not really necessary as he was already a Respondent by virtue of the pleadings, as of course was Mr Pirangi. Mr Napa also filed a cross petition making allegations of corrupt practise against Mr Solomona and the apparent purpose of this was to prevent a declaration that Mr Solomona should be declared elected as the Court has power to do by virtue of the proviso to Section 74(4) and the provisions of Section 79(1). In my view the cross petition was not strictly required under the Act, for Part VI including particularly the sections just mentioned, give the Court the power to do anything the circumstances require once the original petition is filed, nor does a respondent have to nominate what remedy he seeks, for the same reason - once the petition is filed the whole matter is at large. However, the cross petition does serve a useful purpose in giving particulars, which could otherwise be called for under Rules 4 and 74 of the Code of Civil Procedure.

Mr Napa also, in separate proceedings under [indecipherable] filed a petition against Mr Pirangi. When the case was called however, his counsel Mr Ingram was granted leave to withdraw those proceeding against Mr Pirangi, on the basis as he said that the allegations and prayer for relief in it were already incorporated in those in the Solomona petition and sought the same remedy. We therefore had a case of Mr Solomona accusing Mr Pirangi of electoral malpractice and Mr Napa as a respondent joining in supporting those allegations but also making allegations of electoral malpractice against Mr Solomona.

I heard Mr Solomona's case. It was based upon all allegation that Mr Pirangi was the proprietor of a rental car business, and had on two occasions prior to the general election allowed rental cars from his firm to be hired to a Mrs Knowles, a voter in the Ruaau constituency, at favourable terms under circumstances which would lead one to the inference that this action was done with the corrupt intention of influencing her vote in favour of Mr Pirangi. After a comparatively brief hearing I decided that these allegations were not made out and dismissed that side of the petition. Mr Ingram however maintained that he was still entitled to pursue his cross allegations against Mr Solomona. This to me was a somewhat novel suggestion, but after an examination of the Electoral Act and listening to submissions I concluded it was well founded. In particular section 74 subsection (1) allows any candidate to demand an inquiry as to the conduct of the election or of any candidate and this Mr Napa had done. Section 74 sub-paragraph (4) proviso, also indicates that at such an inquiry, evidence may be given, not only concerning alleged misconduct by the elected candidate but of mis-conduct of a rejected candidate. I say now in anticipation of what will emerge later that one thinks that this was primarily aimed at allowing a successful candidate whose conduct has been attacked to show that his challenger has also been guilty of misconduct so that in the event that the successful man is disqualified, the Court would not, as it is entitled to do in certain circumstances, substitute the unsuccessful man, but should also disqualify him for misconduct and order that the seat be declared void. This, in the ordinary connotation relates to the one-to-one election situation. But Mr Ingram is quite right when he says that the inquiry may be in respect of the conduct of any candidate so that the conduct of a second or third or fourth rejected candidate can be put under scrutiny to see whether malpractice has occurred and just to anticipate, one would stage an examination of later sections which will requite careful analysis to see what are the powers of court if as in the present instance, Mr Pirangi as the successful candidate has been absolved from misconduct but if, as I shall consider, Mr Napa's case proves misconduct by Mr Solomona. It is not inappropriate to observe here that the margin of votes between Mr Pirangi, Mr Solomona and Mr Napa was not great. In saying that misconduct had not been proved against Mr Pirangi I had expressly said: "Insofar as the present proceedings before the court, are aimed at a declaration of electoral malpractice by Mr Pirangi they have failed, but that is not the end of the matter. We have now to look into the allegations made of Mr Napa against Mr Solomona". As that then became a continuation of the Section 74(1) enquiry all the powers under Section 79 remained available. Indeed it was apparent that the sole purpose of the continuation of the inquiry was to seek a declaration that the seat was void, for there was no room for a declaration that Mr Napa had been elected.

It might seem to the fair minded citizen that it is an odd process that a successful candidate, Mr. Pirangi, in respect of whom a challenge of misconduct has been not proved should still have the electoral declaration in his favour put in peril by allegations of one unsuccessful candidate against another. That is one point of view. But equally one unsuccessful candidate can be properly be heard to say that he has had less than a fair deal if the misconduct of another unsuccessful candidate has stolen votes which may well have been sufficient to have had him elected, especially as here where each candidate polled well. It is a troublesome matter and one must not try to decide the rights and wrongs in it by some undefined sense of fair play but by paying careful attention to the words of the Electoral Act which Parliament has seen fit to pass.

Before I go on into this field however, let me discuss the allegations and the evidence and the conclusions I have reached upon them. First of all Mr Ingram on behalf of Mr Napa called two sisters Margaret Teariki and her sister Tina Teariki. They were intelligent young women aged about 20, both being registered voters. They went on Saturday the 15^th October to the Blue Shop. That is a shop in the middle of Ruaau Electorate owned and operated by Mrs Manavaroa. The evidence shows that Mrs Manavaroa is a lively lady, active in political affairs and a member of Mr Solomona’s electoral committee. These two young women were with their grandmother Mrs Wichman. They had gone to watch video which is a common practice on the island. Many shops and similar centres of social gatherings display video either for a charge or as a method of attracting customers. Saturday night is popular. On this occasion while they were watching the screen, food in the form of raurau kai was distributed quite liberally by Mrs Manavaroa and her family to the two young ladies and to other people present. They did not pay for the food which was not insubstantial. They were not told where it came from or why it was being given to them, and refreshment of this sort is not usually offered on these occasions but, for reasons which I am satisfied were valid reasons, each young woman concluded that the food had been sent along from a barbecue currently being held not far away at the Arorangi Sports Club house as part of Mr Solomona's electoral campaign and they associated the food which was given to them as being something which was offered in connection with Mr Solomona's attempts to be elected, with which Mrs Manavaroa was closely associated. About a week or more later, Mrs Wichman the grandmother was in hospital. Margaret Teariki went to the Blue Shop to try to take a taxi to go to the hospital to see her grandmother. Mrs Manavaroa was very helpful. She or her shop own a taxi which operates from that place, and Mrs Manavaroa placed Margaret in a taxi, told the driver to take her to the hospital and not to charge her for it. This was done. Now that incident, though I relate it, really is of little significance for nobody suggests that Mrs Manavaroa is other than a kind lady and such a gesture for a young woman who would have little or no money to go to visit her mother in hospital is the sort of hospitality and generosity which even in these contested political times, still flourishes amongst the kind people of Rarotonga.

However, the story continued on the following Thursday when Margaret and Tina again attended the Blue Shop for video and by chance found that after the screening a political meeting took place. Mr Solomona was present - it was obviously a campaign committee meeting with other officials there named as Tiapape Heather, Pomani Tangata and Mrs Manavaroa. She identified herself and the others as committee members for Mr Solomona and she told those people who had been watching the video that on election day they should vote for Mr Solomona. There is nothing wrong in that. People are entitled to canvass at election time. There is no suggestion that there were any favours being offered that night but the evidence is of significance as showing that Mrs Manavaroa made no secret of the fact that she was a committee worker for Mr Solomona and the Blue Shop was closely involved in the political organisation.

Now the following night of the 28th, Margaret was again at the Blue Shop watching video and on that occasion Mrs Manavaroa gave her two tickets for an umukai a barbecue to take place the following day or evening as part of Mr Solomona's campaign. These tickets were marked as being $2.50 each and the function was to take place again at the Arorangi Sports Club rooms which is quite close by. There is nothing wrong with functions of that sort. Indeed in overseas countries, one hears of Presidential candidates in the United States having "gold plate" dinners at a thousand dollars a place. Those are fund raising activities and in a more modest way we often see in this country and elsewhere party supporters gather together, give food and other provisions, put on a party, invite a number of people and charge them for admission. The funds thereby accumulated as a result of the free food and other hospitality offered become part of the political fighting fund. However, on this occasion when she was given the two tickets, Margaret was told that they were presents. She was not to pay for them and she was told that Mrs Manavaroa would pay for them; and Margaret and her sister Tina's names were written on the tickets. Margaret took them home and gave them to Tina and she concluded, a young person though she is, that this was part of the election campaign to gain her favours. The following night which was Saturday which was the day or night of the barbecue, she again went to the Blue Shop with another friend, not her sister, and, she watched video and she saw plates of food distributed amongst the people there and she again formed the opinion that it had been sent down from the nearby clubhouse. She did not participate herself but a friend of hers called Annie Rickard who was a friend of Tina’s had brought some food down she had obtained at the barbecue in exchange for the free ticket and was distributing it. Tina, when she gave evidence, said that she had been at the barbecue and that she had used the tickets that her sister had given her and she knew it was part of the campaign for Mr Solomona and that she gave one of the tickets to Annie Rickard. The tickets apparently entitled one to plaited containers of food - raurau kai - and that is how some food was taken down to the Blue Shop that night and distributed. To conclude on the subject of Margaret, she was again at the shop on Monday, 31 October, two days before the election. She had gone to buy a tin of fish which would be a comparatively small purchase. But Mrs Manavaroa thrust on her much food than that and did not charge her. There were two tins of meat, some tomatoes and a kilo of kumara and she was told she was not required to give any money. Again she drew the same conclusion as she had previously as to the reasons for this gift.

As I have said the sister Tina received the tickets for the barbecue and went to the barbecue on the Saturday. She was with another friend of hers, a girl named Stella Wichman and they accepted the food which was offering. There would be no great harm in that, indeed, apart from the fact that the tickets had been given to her, it would be a legitimate political enterprise. However, in addition to the fact that the tickets had been given to her to attend and receive this hospitality for nothing, her evidence is that there were very substantial quantities of beer being offered to the 30 or so people who were present, by a man who is identified as a close associate of Mr Solomona's and one of his political workers; and other men known to her including Mr Solomona were participating in the organisation. Her description does not quite extend to the affair degenerating into a drunken orgy but certainly large quantities of beer appear to have been given around by the organisers to whoever called for it without any suggestion of payment and in quite disproportionate quantities as against even those persons who had paid their $2.50. Tina herself got drunk. Of course if one goes to a private party the host will usually provide liquor. If one sports team entertains another the home side members only pay for the beer. But at a semi public gathering where attendance is by paid ticket one does not usually see unlimited liquor available to the attenders, without payment proportional to consumption.

Mrs Wichman also gave evidence to the similar effect as had Margaret. She was at the video occasion on the first time when food had been freely offered in circumstances which were not what she would usually expect on such an occasion. Another elector Mr Timi Tepau, had a similar experience at the Blue Shop when he went to watch the video on the 29th October. Food was brought to him and to another man Mr Maropai by Mrs Manavaroa via her daughter and offered in a generous way.

Then there was a Mrs Judy Jack who spoke of an occasion weekend before the election when she went to Mr Solomona's shop and was inquiring about hiring a video set for her home and she was offered it at a rental of $10 as against the price of $30. She accepted that, although she has not subsequently paid for it. She was subject to certain criticism and indeed her credibility and her honesty were attacked. I did not think a great deal of this incident except that I believe that she was truthful and that for whatever motive Mr Solomona was being extraordinary generous in allowing his video machine to be hired out at a third of what proved by independent evidence to be his orthodox rental rate on other occasions. Now from this I have no difficulty in reaching a conclusion. Each incident in isolation might be regarded as an aberration but the combination denotes a concerted effort by Mr Solomona and his committee to win support by giving favours.

Mr Solomona for whatever reasons made no attempt to appear at the hearing, indeed his counsel Mr Short was deprived of instructions after presenting the initial petition evidence and had to withdraw from the proceedings. Mr Henry then undertook the difficult task of challenging these allegations in the interest of Mr Pirangi. As I say in the absence of anything from Mr Solomona there is clear indication that on four or more occasions bribes were offered or treating was given to persons who clearly understood, and in my view legitimately understood, that the gifts given or the hospitality offered was inspired by no other reason than for electoral preference. In my view this constituted treating of a substantial nature and though mainly it was done through agents, namely Mrs Manavaroa and Mr Tiapape, it was by members of Mr Solomona's electoral committee and indeed with Mr Solomona himself present on some occasions.

The difficulty however which emerges is a legal one, as to the effect of this breach of electoral procedures by one unsuccessful candidate on the complaint of another unsuccessful candidate. The matters which may impugn an election and the powers to investigate are not exclusively contained in the Electoral Act of 1966. As Sir Gaven Donne so carefully demonstrated in the Mitiaro case, we still have common law provisions in this country concerning these topics and in the Mitiaro case Sir Gaven had no difficulty in holding that in the case of electoral misconduct of a corrupt nature sheeted home to a candidate or his approved agents no inquiry need be made as to whether the result of the election was or was not thereby affected. He said that the purpose of all electoral law is to ensure free and uncontaminated elections and I entirely concur with his reasonings and in his conclusions. Nevertheless he had difficulties because of the rather inept draftsmanship of our Electoral Act and in particular of the wording of section 79 speaking as it does in part of "irregularities which materially affects the result". The then Chief Justice discussed irregularities as those described in section 78 which deal with .administrative blunders and similar matters. I would not go so far as to say that is a complete category of all the irregularities which might give rise to review under section 79(1). The point which has arisen here was not before Sir Gaven but I tend to take the view that section 80 which deals with the duty of the Judge ................... relates not only to irregularities of a section 78 variety but to wider matters. In particular, I draw attention to the fact that under section 80, the Judge may form the opinion that any irregularity should be referred to the Police. It does not say any irregularity of the sort described in section 78 nor indeed do I think that the comparatively minor fines refer to in sub-paragraphs (a) and (b) indicate that only administrative blunders or defaults are in mind, because the section contains the words "unless some other penalty is elsewhere prescribed and there are many specific penalties prescribed at a much higher scale viz: section 65, 66, 67, 68, 69, 70, 71, 72 and 73.

Where else does a judge receive a direction about reporting corrupt practice?" Nor am I quite convinced that the pre-requisite of "wilfully" indicates that section 80 is only talking about the lesser offences. Certainly the offences described in sections 68 to 72 will necessarily have been wilful but in an omnibus section such as section 80, which is attempting to cover a wide variety of offences, I do not think the safety precautions of duplicating by the use of the word wilfully in relation to part only of the possible offences indicates that the more significant offences are excluded. It could well be argued that irregularities in Section 80 include all electoral offences.

This discussion however is a diversion. For present purposes, one must ask what is the duty and power of this court having concluded that Mr Solomona has been guilty of bribery or treating when Mr Pirangi has been freed from the allegations made against him. As already said it seems odd I am sure in the eyes of the ordinary citizen that the man who is declared to be the winner and who is not condemned for improper practices should still be vulnerable; but again and with equal force, an unsuccessful candidate can legitimately complain that votes which might have been available to him or indeed to the successful candidate have been stolen away by improper practice of another candidate. Ordinarily as examination of past cases will demonstrate it is a one to one situation and the court is given the option of rejecting the petition and confirming the elected candidate or of declaring that that candidate was not duly elected and substituting the apparently unsuccessful candidate in circumstances when it is clear that he had the majority of the valid votes; or as is most common where one cannot be sure what the result may have been to declare the election void with the consequences of a by-election. That is the one-to-one situation. What is available in the present circumstances? Let us note the wording of the second part of section 79(1) where it says:

"The Judge shall determine whether, by reason of some irregularity that in his opinion materially affected the result of the election, the election is void; or whether the candidate whose election is complained of, or any and what other candidate, was duly elected."

Note it is not the candidate who is complained of - it is his election, i.e., the declaration of a winner under Section 59. Certainly, in the case such as the present, the court cannot declare that any other candidate was elected but is the court satisfied that Mr Pirangi was duly elected? The answer is I think clear. One examines the word duly. It means "rightly" or "properly". It has been said frequently that the fundamental purpose of all electoral acts is to secure the freedom of elections. That means freedom from taint or improper practice so that the proper will of free elections is ascertained. One commends a close study page s.20 of the Mitiaro report 1979 1 NZLR for a discussion on this topic. Free elections must be untainted by malpractices of various kinds. Lord Denning said in Morgan v Simpson that if an election might be conducted so badly that it was not substantially in accordance with the law as to elections; and more particularly further down p.s20, one finds the passage quoted from Rogers on Elections at p.301:

"Freedom of elections is at common law essential to the validity of an election. If this freedom be by any means prevented generally, the election is void at common law. An election is therefore avoided by general bribery although not brought home to the candidate or his agents". (The emphasis is mine)

It continues:

"An election will not be avoided upon this ground unless the bribery is proved to have been so extensive it was not a full and open election".

Now I have not been able with the limited library material available to find a reported case where the misconduct of an unsuccessful candidate has voided an election at the suit of another unsuccessful candidate. But the principle enunciated by Rogers, which is so clearly in accord with the basic concept of fair elections demonstrate that an election is not fair if bribery has been on a general scale, producing the conclusion that it was not a fair and uncontaminated contest.

Sir Gaven Donne said in Mitiaro, and I agree, that a corrupt practise by a successful candidate will disqualify him without proving that it materially affected the result obviously because on the common law such a man is not fit to be elected. But considerations of the material effect are relevant when it is a case of general bribery or general treating by persons unknown, or by persons other than the successful candidate for a few bribes by a minor candidate who polled a. handful of votes should not upset a blameless candidate with an overwhelming majority. So it is important not only to recognise there was bribery or treating, but its effect.

It is clear that at the Blue Shop on two occasions there were upwards of 20 persons present although some were children and at the occasion of the barbecue at the sports club there were 30 people present. This then was extensive which is the qualification for "general" treating and we have also specific bribes of Margaret Teariki and Mrs Judy Jack. It cannot be said in those circumstances that a substantial number of persons (upwards of 70) did not have affected votes. Therefore a closely contested election such as this with such an unknown and unresolvable factor of contamination cannot be said to have been one which was free, nor can an achieved be said to have produced a candidate who was duly elected. Whether these votes would have gone one way or another is irrelevant. The pattern of conduct here is such that favours were extended generally to any voter who happened to be around - this establishes that there was general treating whenever the opportunity offered. I regretfully come to the conclusion therefore that through no fault of Mr Pirangi this election was so contaminated that it cannot be said that he was duly elected.

I acknowledge that many electors might be puzzled by this result. I invite them to return if they wish to the brief summary I made at the earlier stage that although Mr Pirangi's situation must be sympathised with, equally Mr Napa is entitled to complain that he may have been robbed of his chance of achieving a majority by substantial electoral misconduct on the part of Mr Solomona's committee. For this reason I have no option but to transmit this declaration to the Chief Electoral officer under Section 76(2) who is thereby required to declare the Ruaau election result void.

SPEIGHT C.J