In re Constituency ofTengatangi-Areora-Ngatiarua v George [1983] CKHC 9; HC Misc 23.1983 (19 May 1983)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT ATIU
Misc. 23/1983

IN THE MATTER of an election of members of the Parliament
of the Cook Islands held on the 30^th day of March 1983

AND

IN THE MATTER of a Petition by a Candidate and Electors
of the Constituency of Tengatangi-Areora-Ngatiarua
PETITIONERS

AND

NORMAN GEORGE
FIRST RESPONDENT

AND

ANDREW TURUA
SECOND RESPONDENT

AND

TEURA MAKA KEA
THIRD RESPONDENT

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

Dates of Hearing: 16^th, 17^th & 18^th May 1983
Date of Judgment: 19^th May 1983.

DECISION OF SPEIGHT C.J.

I am dealing with the case of Norman George which we heard on Monday, Tuesday and Wednesday. The petition against him was based on three separate headings. Two of Bribery and one of Treating. The first of bribery was in respect of Mr and Mrs Mariri about a possible trip to New Zealand. The second was an allegation of bribery in relation to an offer of job for Mata Roi and a Course in Honiara for Roi Roi. The third allegation of treating was in respect of the meat and the sugar given on his instructions to people on the marae.

Bribery is defined in section 69 and we are concerned primarily with sub-section (a). Put briefly it is directly or indirectly giving or offering valuable consideration in order to induce an elector to vote a certain way. It is important to note that many politicians make promises before an election and they may say that if the electors will vote for them, certain benefits will follow. Although that is sometimes called "political bribery", that is not what the Act is dealing with. The forbidden conduct and the sort of thing we are looking at here is an offer of a personal benefit for an individual by way of a gift or a job or something like that. It can be a very fine distinction between the statements of proposed policy which will benefit just a limited class of people or people who have particular qualifications or needs, as against individual favours which are held out. In these cases one has to consider the evidence which is available in support of the allegation. It is more difficult to understand exactly what was promised in the case of a conversation with a private individual as against a general promise made at a meeting. In my view, in cases such as the present one to become a bribe, it must be an offer or a gift directed to the personal circumstances of the elector and divorced from his eligibility as a member of a class. I do not propose to talk more about the law because the Mitiaro case covers the situation quite adequately and we were all in agreement during submissions.

I deal first with the case of Mr Mariri and his wife. The case was put and the evidence was of Mr Mariri who said that Mr George had promised he would try to get him a course at Auckland Technical Institute if his party became the government. Mr Mariri did not say that Mr George asked him to vote for him. But if it was an offer, it was obvious that Mr George was the candidate for Mr Mariri's election and the evidence to start with boiled down to an alleged promise that Mr George would assist by trying to get him a course in New Zealand and that it might be possible for Mrs Mariri to get a job in New Zealand or at least leave without pay. That was put forward as an inducement but it is always necessary to get these things in perspective and I noted the following other remarks from Mr Mariri: that Mr George did not say anything about his election; and that Mr Mariri did not know whether Mr George could do anything to help. In cross-examination he agreed that Mr George had said that he hadn't come to change him because it was known he was a Cook Islands Party man, and Mrs Mariri said in cross-examination, "He did not promise us courses if we vote for him". In cross examination, "Norman said he had come because he had received a message that my husband wanted to see him". And to the question from me, she said "My husband asked for Norman because he wanted to seek clarification about the course."

I would like to say straight away that I think that Mr Mariri and his wife were very straight forward witnesses. It emerged from their evidence that Mr George had said that Atiuans should get more scholarships, that too many were going to Rarotongans and that he was out to boost all qualified Atiuans. Quite a lot of the evidence concerned the question of qualifications, how to apply for a scholarship, the powers of the Selection Board, the fact that the list was full and he would have to take his chances of selection in a year or so's time. These seem far removed from an offer of valuable consideration especially with the statement that the Selection Board were the people that decided. That can also be coupled with the wife's evidence that it was they who asked Mr George to come to them, to give advice on how to apply. Another factor which is important is that although this advice was given not to electors at large, it was as far as one can see to one of the few men in Atiu who could qualify to apply. In respect of the Mariris, I am quite clear that the case has not been made out.

I turn now to the case of the Rois which is more difficult because there can be no doubt that I have to decide on credibility matters. It often happens that there are differences between witnesses as to what was said in a conversation. I make allowances for all that, but on the main points as to whether Mr George said he could get Mata Roi a better job if he was elected and that similarly could get Roi Roi a course in Honiara, there is no room for misunderstanding. One side is not telling the truth and that always gives the court a very difficult job. Mata Roils account was straight forward. Nothing came out of the cross examination of him which undermined anything he said. But I wondered with some puzzlement how a man like Mr George could be so foolish as to commit obvious bribery. He appears to be an intelligent man. He has a law degree. He was an experienced detective in the New Zealand Force and he would know well the way in which evidence of conversations can be remembered and recounted. Most of all he knows about Cook Islands politics and if anybody ought to know the danger of bribery and treating, it is Cook Islands politicians because the 1978 decisions of Mitiaro and Te-Au-O-Tonga are land marks now. What was puzzling me was that the Rois were known to be Cook Islands Party stalwarts. It seemed odd that an experienced Democrat candidate should expose himself to charges of bribery against the background of 1978. But of course temptation can make a man foolish so I have this problem - Who is telling the truth? Mata Roi or Mr George? In these cases one thinks of the onus of proof because the person who makes the charge must show that what he is charging is proved. The matter was resolved in my mind by the evidence of Mrs Roi. There is no doubt she was strongly hostile to Mr George. She backed her husband strongly on the principal charges. Almost word for word. But it was a different story with cross-examination. Mr Ingram pursued a tactic which is often fruitful in these cases. He asked her a lot of questions on the second morning of the hearing about other things that were supposed to have been said. Mr Roi had given quite a few of these, especially when questioned by Mr Ingram. Mrs Roi gave different answers on those topics and were quite sure of them. Now that is not uncommon and does not always show that somebody is speaking an untruth. One sometimes takes notes of startling statements but does not note the less important bits. But when Mrs Roi was told that her husband had said otherwise, whereas previously she had been firm almost dogmatic, she backed away. Then sometimes she would contradict herself and go back to what she had said in the first place. She appeared a suspect witness who had little regard for consistency. A number of such examples can be found on pages 14, 16, 17 and 24 of the transcript. For example, she would agree that her husband may have said something such as "that Mr George had discussed the duties of an MP" yet when she was told that Mr George had claimed that he had spoken of such matters she said flatly he was a liar. Her bias disqualified her in my eyes. When two witnesses agree about many statements which contain serious charges but disagree about other matters of significance which they claim they remember the suspicion of fabrication cannot be avoided. However these doubts on my part are not all one sided. I was very worried about the conduct of Mr George in saying to these people that they should not disclose that he had been there. I was not impressed with his explanation. One wonders why secrecy is suggested about such a meeting if all is fair and above board. I am left in a state of uncertainty one way or another as to which side to believe. On balance of probability, I think I am slightly against the Rois. The law as to burden of proof makes my duty quite clear. In view of the serious nature of allegations I cannot in the circumstances conclude that this part of the case has been made out either.

I turn now to the third allegation of treating by giving gifts on the marae. This is the most difficult one of the three. It is agreed that the meat and the sugar was supplied out to the gathering and an announcement was made that it came from Norman George.

But section 70 only makes that an offence if it is corruptly given for the purpose of procuring election. Corrupt does not mean dishonest in the ordinary criminal sense but intending to influence the voter by giving of a gift and not by political merit. So we have to see what was in Mr George's mind if we can. And again we are in an onus of proof situation. Did he intend and anticipate that his gift might help to change people's political choice? The proposition is discussed in the Mitiaro case at page 9, line 22. It is clear that if this was his intention, it does not matter whether in fact it had that effect or not.

We will all remember the volume of evidence given about traditional custom. I do not need to go back over the evidence Mr Teio particularly when he was questioned by Mr Ingram. The matter put forward by the defence is that he was acting on this occasion in accordance with native custom. Dr Matheson made a very important point, one of the most important points made in the whole case. He said and I agree with him, the case is not decided by asking whether Cook Islands Customs allow treating. He says and very properly that the Electoral Act was passed by Cook Islands politicians who know all about these things and he says Parliament has not said you can have "a little bit of treating". Parliament has said it is not to happen in an electoral setting. But that still does not answer the question as to whether this was treating; because treating includes a corrupt intention. Once again Dr Matheson who is always so correct with his law, said this, and I agree with him, that if one of the motives is corrupt, that is sufficient. And he said and again I agree with him that the defence such as was put forth can only prevail if the petitioners do not show, on the balance of probabilities, that at least one of the motives was to influence voters. This requires an examination of Mr George's evidence about what happened that morning.

We will remember that evidence was given how all the people in the tribe had obligations, and they gathered together on theses working bees or working days and they will be Democrat and Cook Islands Parties together. Being myself a stranger to traditions here, I had to take very careful note of Mr Teio. And you will remember he emphasized that he will not have political talk on the marae. And that no one took politics into consideration when they were working together on a scheme like this. I also remember the evidence which was given about the various work and other contributions expected from the men and the women and the households; and that people who are away must make it up. I refrained from asking Mr Tanagatapoto how much money he expected from his family in New Zealand but it would obviously be substantial. Now Mr Boaza has worked regularly on the marae and has been very proper in his conduct. He has fulfilled his obligation as a regular attender. And doubtless his family will have to make financial contributions. I look at what Mr George did not on the morning in question. We remember how he described coming on to the marae and being challenged almost as if he a stranger. Miss Tangi Vainepoto asked him where he came from and she was very critical of him for not having brought contributions. You will remember that Mr George said he was shocked and embarrassed and did not know what to do so he went and spoke to his Uncle and the Pastor and he was told by his Uncle he should make a gift, which he did. He left the marae and the gift was brought over by somebody else and Tangi announced it was from him. As I understand it, that it is appropriate in circumstances such as this that the name of a donor of a gift is made is clear. What I find is of importance is that it was Tangi who is a known Democrat supporter and in a political sense would be favourable to Norman George was the one who as Secretary challenged him and embarrassed him and this supports Mr Teio's evidence that there is no politics on the marae, it is a tribal affair. Without anybody being able to contradict him Mr George says he was doing what was necessary to entitle himself back as a tribal member and establishing himself as fulfilling his part. If we refer back to the question which Dr Matheson says was the real point - namely to look at the motives I do not think anybody could argue that Mr George was re-establishing his bona fides as a tribal member. The question is whether he also had political motive of buying goodwill as well. Again on the balance of probability question which Dr Matheson has spoken about, I ask myself on the onus of proof whether it is shown that he was also acting for political motives to influence people on that occasion. Against the evidence of Mr Teio and the conduct of Tangi and against the fact that there were a lot of Democratic and Cook Islands Party people working together, I conclude that the objectors, the petitioners have not shown that his conduct there had a political motive. The result of those conclusions is that the petition has failed on all three grounds.

Mr Mitchell you have been here on behalf of the Chief Electoral Officer and the Returning Officer and you have obviously not made any submission on their behalf because no challenge has been made to the Chief Electoral Officer's work and the Returning Officer's work. Do I understand from you as representing these officers that my duty under section 79 sub-section (1).

Accordingly under section 79(1) I determine that candidate Norman George was duly elected and under sub-section (2) I will formally cause this determination to be transmitted to the Chief Electoral Officer. Unless Counsel have anything else to submit at this moment, it appears there is only any application for cost and I will reserve that question to allow submissions to be made if anybody wants to.

SPEIGHT CJ