Electors of Overseas Constituency v Turua [1983] CKHC 8; Misc 111.1983 (12 December 1983)

THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
MISC. NO. 111/83

IN THE MATTER
of an election of members of Parliament of the Cook Islands
held on the 3rd day of November 1983

AND

IN THE MATTER
of a Petition by Ten Electors of the Overseas Constituency.
PETITIONERS

AND

ANDREW TURUA
Chief Electoral Officer
FIRST RESPONDENT

AND

JOSEPH CAFFERY
Returning Officer for the Overseas Constituency
SECOND RESPONDENT

AND

IAVETA ARTHUR
THIRD RESPONDENT

Counsel: K. Ryan for the Petitioners
A. Manarangi for the First and Second Respondents
N. Anderson for the Third Respondent

Date of Hearing: 8th and 9th days of December 1983
Date of Judgment: 12th day of December 1983

JUDGEMENT OF DILLON J

An Election Petition, pursuant to Section 74 of the Cook Islands Electoral Act 1966, was filed by eleven electors of the Overseas Constituency following the Cook Islands general election held on the 3rd of November 1983. The first unsuccessful candidate in this election was Mrs Kingston and it is of some significance that she is not objecting to the outcome of the election and is not one of the signatories to the Petition. The successful candidate, following the official count, was Mr Iaveta Arthur and he has been named as one of the parties to this enquiry.

The Petition sets out various allegations, in the main against the Chief Electoral Officer or the Returning Officer as to the conduct of the election and to some degree against the successful candidate, Mr Arthur, as to the manner in which either he or his agents attended to preliminary voting arrangements by certain electors prior to the actual polling day.

I propose to briefly summarise the general factual aspects which form the basis of these allegations against the two officers and Mr Arthur because, firstly, they have been alleged in the Petition; secondly because evidence was adduced by the Petitioners to try and support those allegations; and, thirdly, because the evidence failed to establish the allegations. These allegations may be summarised as follows:-

(1) That there was an arrangement with the Returning Officer whereby the Third Respondent or his agents were given preferential treatment in the way of voting in advance, that is, voting prior to election day on the 3rd November. There was also a. suggestion that the electors, while travelling to the Cook Islands Consulate to exercise their votes in advance, were told to vote for Mr Arthur. There was no evidence to substantiate such an arrangement other than the original conference organised by the Returning Officer when it was explained that such facilities would be available to all candidates and their supporters. There was certainly no evidence of any pressure as to who of the candidates voters were to vote for; all these allegations proved to be unfounded.

(2) There was an allegation that the Assistant Returning Officer had undertaken certain duplicating work for Mr Arthur. Much time was spent on whether this had been done and whether the evidence of a Mr Boaza, on this point, was in fact correct. It is clear that Mr Boaza was mistaken as to the envelope he claimed to have seen on the library table and which he alleged was uplifted by the Assistant Returning Officer. Miss Brothers admitted doing the photo statting; gave evidence that she saw the envelope there several days later, so obviously Mr Boaza's impression was a mistaken one. In any case whether the cyclostyling was done or not was, in my opinion, of no consequence whatsoever.

(3) There was a suggestion that certain voters were not qualified to vote. Two were named in the Petition. Mr Ryan referred to some 170 others. Of the two mentioned in the Petition, one gave evidence and clearly confirmed that she was, in fact, entitled to vote. The second person named in the Petition was not called to give evidence. There has been no evidence whatsoever that people were on the roll who were not entitled or qualified to vote. There was no evidence whatsoever to substantiate this claim.

(4) There were allegations, relating to the conduct of setting up of the electoral office at Porirua on Saturday the 29th October 1983 when votes in advance of the poll were to be received. The conduct of that, poll; the manner in which it was undertaken; what happened to the votes subsequently; and all other facets of that arrangement were finally accepted by Mr Ryan as not implying favouritism for any one organisation or being unfairly conducted. What was criticised, of course, and is now the main thrust of Mr Ryan's argument is that the voters were allowed to vote in advance when such is not permitted by the Act and that such votes should, therefore, be disallowed.

(5) There was a complaint by a Mrs Teuetakiri that she had been refused the facility of a vote in advance and that as she was a known supporter of the Cook Islands party this implied preferential treatment towards the Democrat party and a discrimination against the Cook Islands party by the Returning Officer. However, Mrs Teuetakiri in her evidence confirmed, simply and honestly, that her attending at the Cook Islands Consulate on the 2nd November was to inquire as to the date of the election, that is, whether it was that day or the following day. She indicated that she was quite happy to return to vote the following day and in fact did so.

(6) There was also a general complaint in the Petition that when it came to the question of counting certain votes, the scrutineer was not able to examine the votes and that some of the votes contained in the second ballot box had been opened. These allegations were unfounded and again were abandoned by Mr Ryan.

All the matters referred to above relate to those factual aspects of the election which form the basis of the Petition which has been filed. As a result of calling 13 witnesses who have been subjected to examination and cross examination, it is clear that any misapprehension over the conduct of the election has been unfounded and any anxieties as to how the election was organised haw been misconceived.

As a result of all these issues having been fully discussed, considered and abandoned by Mr Ryan, the thrust of the Petition is now limited to a strictly legal interpretation of:

(1) Section 73A(2) - and whether it is mandatory that a postal vote be forwarded to every elector on the overseas constituency; and

(2) Section 53 is there available to an elector in the overseas constituency, a right to vote in advance.

Mr Ryan concedes that his argument is now limited to these two issues only. He claims that insofar as Section 73A(2) is concerned that this is a matter which is not available for discretionary interpretation by the Chief Electoral Officer or the Returning Officer; it is a mandatory provision provided in the Electoral Act and that the failure to comply with this mandatory provision means in effect that all those people who have not received the postal votes as required by the Act have thereby been disfranchised.

Section 73A(2) provides as follows:

"(2) As soon as practicable after nomination day, and in any case not later than the fourteenth day before the day fixed for the taking of the poll, the Returning Officer in charge (in this Part of this Act referred to as the Returning Officer) shall forward by post addressed to each elector of the Overseas Constituency at the address shown against that elector's name on the roll, or at his usual postal address if to the knowledge of the Returning Officer that address is different from the address shown on the roll,-

(a) A postal voting paper; and

(b) An envelope marked 'Postal Vote' and stamped and addressed to the Returning Officer."

In the course of cross-examining both Mr Caffery, the Returning Officer for the Overseas Constituency, and Mr Andrew Turua, the Chief Electoral Officer, Mr Ryan was able to ascertain that prior to the March 1983 election, which incidentally was the first time that voters in the Overseas Constituency were able to vote under the new amended legislation, postal votes and envelopes had in fact been prepared by Mr Caffery for posting out to all the overseas electors on the Overseas Constituency Roll.

This arrangement was subsequently abandoned and it was decided, according to the evidence given, that for those concentrated areas where Cook Islanders lived both in Auckland and Porirua, polling booths would be established, while for all other areas, postal votes would be sent out. It was apparently hoped in this way to achieve as far as possible a complete coverage of those on the Overseas Constituency roll. That was the procedure adopted in March 1983; the same procedure was followed in the 3^rd November election. A plan was presented to show that three polling booths were provided in the Auckland areas of Parnell, Otara and Mangere and another at Porirua near Wellington. Postal votes were dispatched to all other voters on the roll who were not resident in the area served by the four polling booths referred to above.

Perhaps at this stage I should mention what this arrangement meant, in relation to the total number of electors on this Roll and the number of votes which were actually cast. This information was provided by Mr Caffery in an affidavit which he lodged prior to the hearing of the case and was accepted as correct by all Counsel. In clauses 5 and 6 of his affidavit the following information is provided:

"5. As a result of that inspection I noted the following:

(i) the total number of electors upon the roll 688

(ii) the total number of postal votes dispatched 120

(iii) the total number of postal votes received 104

(iv) the total number of votes in advance 80

(v) the total number of special votes in advance 1

(vi) the total number of postal votes not received back 16

(vii) the total number of ordinary votes cast on polling day 378

6. From this I concluded that:

104 Voters voted by post

80 voters voted in advance of poll

1 voter voted by special vote in advance at Rarotonga

378 voters voted on polling day

16 voters did not return their postal votes

106 voters did not vote

4 voters cast informal votes."

There is an error in the figure of 106 non voting voters. This should be 105 in order to equate with the total roll count of 688.

From the information supplied by the Returning Officer, Mr Ryan submitted that since only 120 postal votes were dispatched this meant that the balance of 568 other electors were in fact disfranchised because they didn't receive postal votes, in accordance with the mandatory provisions of Section 73A(2). As against that, counsel for the Chief Electoral Officer has pointed out that 378 votes were in fact cast on polling day and that in accordance with Mr Caffery's summary there were only 105 voters who didn't vote. In other words, Mr Manarangi and Mr Anderson submit that even if there was a failure to forward the postal votes in accordance with the provisions of Section 73A(2) nevertheless it is not the difference of 568 voters that have been disfranchised in accordance with Mr Ryan's calculations but rather it is only those 105 voters out of the total of 688 on the roll who may have been affected. In the result, it is suggested that since it is only the 105 voters who have not voted, then even if all those votes were credited to the petitioner's party, it still would not exceed the difference in the final count that has been declared. That shows the difference between the first and second candidates of 110 votes.

While accepting those figures and conclusions Mr Ryan, however, has referred to the "80 votes in advance" and says that since such voting is illegal it cannot, therefore, be allowed and once disallowed could materially alter the margin between the successful candidate and the first unsuccessful candidate. This submission raises two questions - the interpretation of Section 53 dealing with votes in advance; and what effect disallowing those votes would have on the balance of the poll.

Turning now to the question of votes in advance; this is covered by Section 53 of the Electoral Act with a reference back to Section 52 since any voter voting in advance under Section 53 must be a special voter as determined and defined by Section 52. Section 52(1) provides as follows:

"52. Special voters ((1) Any elector of any constituency who has not exercised a postal vote may vote as a special voter if, on polling day, he will not be in the constituency in which he is registered.)"

This provision states quite simply that a special voter must be a person who will not be in the constituency in which he is registered. Mr Ryan's argument in this context is that the Overseas Constituency is the whole world other than the Cook Islands. That is, the only person who would be entitled to vote as a special voter would be somebody who was on the Overseas Constituency Roll and at the time of the election happened to be in the Cook Islands. Mr Ryan points to the fact that there was indeed one such vote by a person on the Overseas Constituency roll who lived in Hawaii but who was in Rarotonga at the time of the election. That person, he concedes, was rightly entitled to a vote as a special voter. He claims however, that the other 80 voters who voted in advance were, on the day of voting, all resident in New Zealand; were all, therefore, within the constituency; whereas the Act provides that this special provision only applies when a voter will not be in the constituency in which he is registered. It is on that basis that Mr Ryan says that all those 80 votes must be disallowed. No evidence was given and no information was sought as to the allocation of those votes to the three candidates on polling day. However, Mr Ryan submitted that such information was immaterial; that once those 80 votes are disallowed, since they are in contravention of Section 53, then any difference between Mr Arthur and Mrs Kingston on the final count is of no consequence since he is justified in asking for the election to be declared void.

My summary of the position to this point, is that counsel for the Petitioner:

(1) Abandons all factual allegations contained in the Petition; and

(2) Relies on:-

(a) The failure by the Returning Officer to comply with the mandatory provisions of Section 73A(2) and so has disfranchised 568 voters;

(b) The Returning Officer incorrectly allowing "voting in advance" contrary to the provisions of Sections 52 and 53;

(3) Submits this then entitles the Petitioners to ask for the election to be declared void,

On the other hand, counsel for the Respondents:

(1) Concede that Section 73A(2) requires all electors to receive postal votes and that this was not carried out by the Returning Officer;

(2) Concede that Section 53 does require a voter to be outside his or her constituency before a vote in advance can be accepted by the Returning Officer;

(3) Submit that such irregularities can be disregarded as provided for by Section 78; that only 105 people have not exercised their right to vote; but anyway those 105 voters could not affect the majority of 110 as declared on the final count.

These concessions by both counsel for the Respondents, were properly made since it is abundantly clear that Section 73A(2) does require the Returning Officer to forward postal votes to all the 688 electors on the overseas constituency roll. This was not done.

Further, Section 53 allows voting in advance only when a voter, on polling day, will not be in the constituency in which he is registered. All those 80 voters in advance were in New Zealand and so within the overseas constituency. Voting in advance pursuant to the provisions of Section 53 was, therefore, not properly available to them.

Having reached this conclusion it is now necessary to consider whether the provisions of Section 78 apply to this situation. That Section states:

"78. Certain irregularities to be disregarded

No election shall be declared void by reason of any irregularity in any of the proceedings preliminary to the polling or by reason of any failure to hold a poll at any place appointed for holding a poll, or to comply with the directions contained or incorporated in this Act as to the taking of the poll or the counting of the votes or by reason of any mistake, in the use of the forms contained or incorporated in this Act, if it appears to the Judge that the election was conducted in accordance with the principles laid down in and by this Act and that the irregularity, failure, or mistake did not affect the result of the election."

The application of this section depends on:

(1) The irregularity in any of the proceedings preliminary to the polling;

(2) The failure to comply with the directions contained or incorporated in this Act as to the taking of the poll;

(3) The failure by reason of any mistake in the use of the forms contained or incorporated in this Act.

There is no doubt, that in so far as the procedure adopted by the Returning Officer preliminary to the poll there a certainly was irregularity in that:

(a) Prior to the poll, postal votes were not sent out to all electors as required by Section 73A(2); they were sent to some electors only;

(b) Prior to the poll, votes in advance were accepted by the Returning Officer when the qualification as a special voter had not been complied with.

Further, now that this whole matter has been fully argued it is clear, with hindsight, that the Returning Officer in conducting the poll failed "to comply with the directions" in the Act.

Finally, the Returning Officer was mistaken in believing that he was authorised to accept votes in advance. But is this simply a mistake, whereby a wrong form is used, viz., a form for a vote in advance or a form for a postal Vote? If so, then this would also be covered by the exemption provisions of Section 78.

Now if there are present those irregularities which I have just considered and,

(1) if it appears that the election was conducted in accordance with the principles laid down in this Act; and

(2) if it appears that any irregularity failure or mistake did not affect the result of the election; then Section 78 provides the election shall not be declared void.

There is reference in Section 78 to "the principles laid down in this Act". While there is no direct reference to these principles, nevertheless, I agree that Mr Anderson fairly set them out as follows:

(a) Freedom to vote;

(b) Secrecy of voting; and

(c) Able to exercise a vote free from any kind of hindrance or influence.

Those principles have not been challenged by the Petitioners. In fact, Mr Ryan went even further than that and was prepared in his closing address to not only abandon the factual matters on which the Petition had been based (because the evidence did just not support it) but commended the impartiality and fairness of the two officers connected with the poll.

With that concession it is really a question of deciding whether the final ingredient of Section 78 applies in this instance, viz., did any irregularity, failure or mistake, in this Court's view affect the result of the election. I understood from Mr Ryan's submissions that if this matter revolved only around the Returning Officer's failure to comply with the directions as to postal votes in Section 73A(2) then, because there was this margin of 110 votes on the final count and only 105 votes had not voted- then it would be perfectly clear that any irregularity would not have affected the final result, But having made that concession, Mr Ryan submits that the 80 votes cast in advance are illegal; are more than an irregularity; must be disallowed; and the election declared void.

The question of these votes in advance, therefore, requires closer consideration. Accepting that the Returning Officer has made a mistake in accepting votes in advance what would the disallowance of these votes mean? Simply this:-

(1) That 80 people who have complied in all respects with the format of a secret vote would be disenfranchised.

(2) That these 80 people who were entitled to complete a postal vote prior to polling date would now be deprived of any vote - and this, in effect, because the Returning Officer used the wrong form.

(3) That Section 73A(2) requires that every elector shall have a postal vote in the form No. 8B. Section 73B makes provision for ordinary voting on polling day in the form No. 8. These forms have identical instructions as to completion but the postal vote form does set out what has to be done with the vote when completed. (4) That these 80 people have all signed a declaration in the form No. 12 as a necessary pre-requisite to completing the vote in advance. Nowhere on the form of this declaration in the Schedule to the Act is there any reference to the question of the voter not being in the constituency on polling date.

I believe that these 80 votes in advance, considered in the light of those observations, are far removed from those critical comments of Lord Denning M.R. in the case of Morgan v Simpson (1975) RB 151-164 when he said that "the election was conducted so badly that it was not substantially in accordance with the law as to elections". These votes in advance, as they have been called, are in a form similar to a postal vote; they were completed and lodged with the Returning Officer a few days before polling day in the same way as a postal vote would have been returned; and they comply, in the same way as postal votes, with the fundamental purposes of the Electoral Act, viz., to secure freedom of elections; to preserve secrecy; and to exercise the right to vote free from any hindrance or influence. To declare those votes invalid would disfranchise 80 voters simply because the Returning Officer mistakenly accepted them as voters in advance; and, yet by going through the same procedure and using the same forms those votes could have been accepted by the Returning Officer as postal votes.

It is this procedural irregularity for want of a better word, which makes this Petition so different from most other Petitions considered by this Court from time to time. Invariably such Petitions are based on allegations of corrupt practices; bribing; treating; undue influence; personation; or associated offences. Here, however, there are no such allegations. The 11 Petitioners, who interestingly do not include the two unsuccessful candidates, allege only the non-compliance by the Returning Officer of the requirements of Section 73A(2) and Section 53 as already discussed.

At this point I refer to the Mitiaro Election Petition (1979) 1 N.Z.L.R. 315-16. In that case the then Chief Justice refers to two English decisions on this question of irregularity and its affect on an election. Those cases are relevant here.

Firstly, Woodward v Sarsons [1875] UKLawRpCP 68; (1875) LR 10 CP 733.

"A Polling Officer made this mistake. He wrote, on each of the ballot papers, the voter's number as it appeared on the electoral roll. That rendered the ballot papers void. There were 294 of them, 234 for Woodward and 60 for Sarsons. The returning officer, quite properly rejected them. On his count Sarsons got 965 and Woodward 775. Woodward asked the court to declare that, for breach of the rules, the election should be declared invalid. The court of Common Pleas had a scrutiny and went into all the alleged breaches. (There were some others besides the 294.) They found that the errors did not affect the result. Even if the polling officer had made no mistakes, the result would have been Sarsons 1,025 and Woodward 1,008. So Sarsons would have won anyway. The court said, at p. 750:

'the errors of the presiding officers at the polling station ... did not affect the result of the election, and did not prevent the majority of electors from effectively exercising their votes in favour of the candidate they preferred, and therefore that the election cannot be declared void ...'

But, if the errors had affected the result (in other words, if Woodward would have won but for the mistakes of the polling officers), the court, as I read the judgment, would have declared the election void."

Secondly, In re Islington West Division: Medhurst v Lough (1901) 17 TLR 210. A presiding officer, in breach of the rules, gave out 14 ballot papers after 8 pm, which was closing time. They were invalid and ought not to have been counted. But they were counted. Lough was declared elected by 19 votes. Medhurst, the other candidate, sought to have the election declared void. The court went into the details. They said that even if all the votes on the 14 papers given out after 8 pm were given for Mr Lough, there was a majority of five for him. The irregularity did not affect the result of the election. So it was not avoided.

These principles are of relevance in this case since it is pursuant to Section 79 that this Court is required to make a final determination. That section provides that if there is some irregularity that, in the opinion of the Court, "materially affected the result of the election", then the election is to be declared void. It is a question then as to whether the two irregularities contained in the Petition have materially affected the result of the election.

The first irregularity was the failure of the Returning Officer to send out postal votes to all electors on the Roll. The result of this irregularity accepted by all counsel was that since 105 voters did not cast votes in the election, they may have been disfranchised. But the margin between the successful and first unsuccessful candidate was 110 votes. Therefore, even if all 105 voters voted for the first unsuccessful candidate, the result could not have been affected.

The second irregularity was the acceptance by the Returning Officer of votes in advance when they should have been accepted as postal votes since all electors on the Roll were entitled to cast postal votes prior to polling day pursuant to the provisions of Section 73A(2). I find that this is an irregularity and a mistake by the Returning Officer as to form only and that it has had no affect whatsoever on the result of the election.

Having reached that conclusion, I am left in no doubt that while there were these two irregularities referred to in the Petition, they did not materially affect the result of the election and the Petition is accordingly dismissed.

DILLON J