In re Oneroa Constituency [1989] CKHC 1; MISC No 12.1989 (30 March 1989)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
MISC. NO. 12/89

IN THE MATTER
of Section 59 Electoral Act

AND

IN THE MATTER
of a Petition by a candidate and five electors of the constituency of Oneroa
Petitioners

AND

NOOROA SAMUEL
of Mangaia, Parliamentarian
First Respondent

AND

ANDREW MATA TURUA
Chief Electoral Officer of Rarotonga
Second Respondent

AND

VAVIA TANGATAIA
Returning Officer for Constituency of Oneroa
Third Respondent

Counsel: Mr Mitchell for Petitioners
Mr Puna for First Respondent
Mr Manarangi for Second and Third Respondents

Date of Hearing: 23-24 February 1989
Date of Judgment: 30 March 1989

DECISION OF DILLON J.

This is a petition for inquiry which has been filed on behalf of Mr Matepi Matepi, the unsuccessful candidate, and five electors of the Oneroa constituency on the Island of Mangaia.

The petition sets out three grounds supporting allegations of bribery; and one ground alleging the offence of treating. Bribery and treating are electoral offences within the Electoral Act 1966, in particular Section 69 and 70 respectively.

The grounds of the petition for inquiry are set out hereunder as follows:

"(a) On or about the 30^th day of December directly or indirectly gave or offered to electors valuable consideration being money in order to induce electors to vote; and/or

(b) Directly or indirectly made a gift of money and/or offer as aforesaid to persons in order to induce the persons to procure or endeavour to procure the return of NOOROA SAMUEL or the votes of electors;

(c) Upon or in consequence of such give (gift) and/or offer, procured or endeavoured to procure the return of NOOROA SAMUEL or the votes of electors; and/or

(d) Between the months of November 1988 and January 1989 corruptly gave or provided meat, drink and other provisions to electors in Oneroa constituency for the purpose of procuring the election of NOOROA SAMUEL."

As a result of an application by Mr Puna who appeared for the First Respondent further particulars were asked for and an Order was made. A more detailed statement of these particulars was filed by Mr Mitchell and these are set out as follows:

"THE PETITIONERS by their Solicitor submits the FOLLOWING further particulars in connection with the allegations contained in their Petition for Inquiry dated 3^rd February.

Para. 2(b) (i) the money was offered by Mr Nooareauri Vaevae Pare, and delivered by Miss Matengarua Pare;

(ii) the money was given to Teiiti Paio, on behalf of the Bali Hai club;

(iii) the amount was $200.00.

Para. 2(a) and 2(c): as above."

This hearing commenced at Mangaia on the afternoon of the 23^rd of February. The hearing on this day dealt with evidence called by Mr Mitchell in support of his allegations concerning bribery only. At the conclusion of this evidence Mr Puna made a detailed analysis of the evidence that had been adduced by Mr Mitchell and referred to the relevant law and submitted that no case had been made out and that as a consequence he was not required to call any evidence in rebuttal. The Court adjourned for the day at this stage so that consideration could be given to this application by Mr Puna which had been opposed by Mr Mitchell who in turn had supplied a summary of his evidence and what he believed was the relevant law associated with proving that particular allegation.

Overnight the Court prepared a hand-written determination on Mr Puna's application and this was presented to Counsel the following morning and for the purpose of completeness of this decision is set out herein in full.

"Earlier this morning the Court dealt with an application for an official recount. It was declared and has been accepted by all Counsel that the confirmed official result of the Oneroa Electorate (insofar as it concerns the parties to these proceedings) is:-

Nooroa Samuel 150

Matepi Matepi 140

The Court has now proceeded to the hearing of the evidence for and against the Petition for Inquiry.

Mr Mitchell has called 4 witnesses in support of the allegation of bribery.

Mr Puna now makes application for that part of the Petition relating to bribery to be dismissed on the grounds that no or insufficient factual or legal case has been established for his client to answer. And therefore he is not required to call any evidence in rebuttal.

The allegations on which this part of the Petition is based relate to a payment of $200 by Miss Matengarua Pare to Teiiti Paio Mays after a dance in the Cintania nightclub held on Boxing day 1988 and initially arranged between Tautu Mokoha and Nooareauri Vaevae Pare.

The relationships and political allegiances of these people are claimed by Mr Mitchell to be very relevant:-

1. Miss Matengarua Pare is a sister of Nooroa Samuel's wife and a sister of Nooareauri Vaevae Pare;

2. Mr Nooareauri Vaevae Pare is a brother of Nooroa Samuel's wife and a brother of Matengarua Pare;

3. Mr Teiiti Paio is Chairman of the Bali Hai Club a private drinking club on this Island whose membership of 33 comprises 29 who are in the Oneroa electorate; he is also on the Electorate Committee of Nooroa Samuel;

4. Mr Tautu Mokoha is on the Electorate Committee of Nooroa Samuel.

The evidence led by Mr Mitchell was intended to prove that the relationships set out above allied to the known political affiliations of the persons involved, provided the criteria necessary to establish that bribery had been committed contrary to Section 69 of the Cook Islands Electoral Act 1966. In other words, that the $200 acknowledged as having been handed over by Matengarua Pare to Tautu Mokoha was a payment "to procure or endeavour to procure the return of (Mr Samuel) or the vote of any elector"."

The cross-examination by Mr Puna was intended to challenge such allegations and to explain that quite innocent actions were now being interpreted in away which suggested that breaches of the Electoral Act had been committed by two of Mr Samuel's relations who were temporarily on the Island some 3 weeks prior to the election; who had left the Island prior to the election; connotation - but more importantly he says, when there was no evidence that Mr Samuel was aware of these actions which have now formed the basis of these very serious charges with the possible resultant serious consequences.

The Petition (Paragraph 2(b)) alleges:

"directly or indirectly made a gift of money and/or offer as aforesaid to persons in order to induce the persons to procure or endeavour to procure the return of Nooroa Samuel or the votes of electors."

This allegation of bribery has now been clarified in some detail by the Statement of Further Particulars that has been filed, and is now set out:

"Para 2(b) (i) the money was offered by Mr Nooareauri Vaevae Pare and delivered by Miss Matengarua Pare.

(ii) the money was given to Teiiti Paio on behalf of the "Bali Hai" club.

(iii) the amount was $200."

Now each of those allegations have been established by the evidence led by Mr Mitchell. In fact Mr Puna in cross-examination conceded those three statements of Particulars set out in Paragraph 2(b) (i), (ii), (iii). Evidence has therefore been produced which if unanswered or unchallenged might provide grounds for granting the relief sought by the Petitioner.

Mr Puna has endeavoured to answer and challenge this evidence in his cross-examination of the four witnesses. In part it could be said he has succeeded; in other parts it could be said he has failed to establish the innocent interpretation he now asks the Court to accept.

For these reasons I find that there is a case to answer and it is now for Mr Puna to decide whether he wishes to call evidence to refute the allegations that have been made and to establish the innocent interpretation he suggests.

Having ruled that Mr Puna did in fact have a case to answer the case proceeded in the normal fashion - Mr Puna called witnesses countering the allegations that had been made by the Petitioner; Mr Mitchell then called witnesses in support of his allegation regarding treating; and then Mr Puna called further witnesses in opposition to that further allegation followed by submissions by both Counsel.

It will now be appropriate to consider the evidence that was led by Mr Mitchell in support of his petition. His first witness is a Mr Roy Mautauri. The relevant part of his evidence in chief was as follows:

"Q. What was money for?

A. I don't know.

Q. What was purpose of money?

A. No.

Q. What did you think money was for when handed over?

A. I think to buy vote.

Q. Whose vote?

A. Our group the Bali Hai."

On cross-examination by Mr Puna this witness stated as follows in part:

"Q. Discussed dance and sharing proceeds 50/50.

Q. Did you received your 50%?

A. Yes we got $200.

Q. Is this the $200 you told us, you told Mr Mitchell about?

A. Yes.

Q. How can there by anything improper?

A. I don't know.

Q. You said to Mr Mitchell that you thought money given to buy votes?

A. Yes.

Q. But you now say that $200 was part of arrangement, that is 50/50?

A. Yes.

Q. What's wrong with that?

A. Nothing, I don't know.

Q. You agree with Mr Pare that you would get 50% of the takings?

A. No answer.

Q. Dance held and you got your share?

A. Yes.

Q. Anything wrong with that?

A. No answer, then I don't know if there was anything wrong."

This witness also confirmed that he did not vote for the First Respondent but rather one of the Petitioners, the unsuccessful candidate Mr Matepi.

That then was the text of the question and answers of the first witness called by Mr Mitchell. The second witness was a Mr Makiiti Mangaara. The relevant part of his evidence is as follows:

"Q. Where you surprised when you got the $200?

A. No.

Q. Had you earn the money, done work?

A. Some of us were involved.

Q. In what?

A. Assisting in building club.

Q. Some of Bali Hai had done this work?

A. When, November or December.

Q. Can you think later why $200 given to you?

A. Yes.

Q. What sort?

A. I thought money was for building the club. When I look at it I believe it should be paid to the club."

The third witness was one Charlie Arataura and in reference to the money he had this to say:

"A. This came from the band at the Cintania Club?

Q. Did you deal with the person who made donations?

A. No.

Q. Why was it made?

A. Don't know.

Q. Have you thought about it later?

A. Perhaps to buy our vote - Nooroa."

In answer to questions posed by Mr Puna in cross-examination this witness had the following to say?

"Q. Did members of the club help out?

A. Yes.

Q. When you received the money you thought it was from the Rumati band - no answer.

Q. You said when received money you had no suspicion but then later on your suspicions and thoughts?

A. Yes.

Q. Did anyone interview you about the $200?

A. Yes.

Q. Who?

A. Matepi.

Q. Is he the unsuccessful candidate?

A. Yes.

Q. Anyone else?

A. No.

Q. Boaza?

A. No.

Q. Is it true when you were interviewed you then had second thoughts?

A. Yes."

The fourth witness called by Mr Mitchell was Teremanuia Tangianau. This witness didn't really have any contribution to make towards the question of the $200 and the allegation of bribery. He subsequently was recalled and was more involved in the allegations regarding treating.

That completed the evidence on which Mr Mitchell relied for the founding of his petition. It was on the basis of this evidence that Mr Puna had made application for the Court's ruling on whether in fact there was any case to answer and whether there had been sufficient evidence adduced to establish a prima facie case that necessitated his calling evidence in rebuttal.

From this evidence the Court is able to establish the following facts:

(i) Mr N.V. Pare a brother of Mr Samuel's wife early in 1988 arranged to build a nightclub in Mangaia called the Cintania. It was completed in late December1988. Mr Samuel as a builder was in overall control of the building which was built largely by volunteer labour for Mr Pare who lived in New Zealand.

(ii) Mr N.V. Pare also had an association and access to a New Zealand band and singers and arranged to bring them over for a concert tour not only of Mangaia but also of Rarotonga - the Mangaia trip was to fit in with the official opening of his nightclub the Cintania just prior to Christmas.

(iii) Miss M Pare a sister of Mr N.V. Pare referred to in (i) and (ii) above and a sister of Mr Samuel's wife also came to Mangaia at about the same time as the band and the singers. The purpose of her coming to Mangaia was to attend her father's funeral.

(iv) Mr Pare and his sister Miss Pare were not on Mr Samuel's electoral committee of 12. The band was in Mangaia for a week only and Mr Pare left at about the same time as the band returned to Rarotonga. Miss Pare also left before the election.

(v) The $200 was handed to Teiiti Paio by Miss Pare about two or three days after the Boxing night dance, about the 28^th or 29^th of December 1988 - the election was on the 19^th of January 1989.

(vi) The Boxing night dance was attended by some say 30 while other witnesses referred to an attendance of 80. Admission to this occasion was $2 so that the most the returns from those attending if 80, would have been $160; while the minimum was likely to be $60. It was therefore likely that the $200 handed over to the Bali Hai representatives would have come from this particular occasion which was organised at short notice.

(vii) Mr Samuel in his evidence said that the $200 came from the function associated with the opening night of the Cintania nightclub. He told the Court that some $600 had been paid for admission on that occasion and that the owner of the club and the organiser of the band, that is Mr Pare, then distributed three lots of $200 - one to the Bali Hai organisation - a further $200 to the Church in Mangaia although I can't recall whether any specific church was nominated; and the final $200 was distributed and paid over to Mr Samuel's organising committee. It would seem therefore the more likely that the $200 which was paid over to the Bali Hai club came from the proceeds of this opening night function.

It is now submitted by Mr Mitchell that this $200 given by Miss Pare on behalf of her brother Mr Pare and the band constitutes bribery; that these funds were intended to induce the Bali Hai club and its members to vote for Mr Samuel; and that these funds can be distinguished from the similar amounts given to the Campaign Committee and the Church.

There is some dispute as to what was written on the envelope when handed over. Some witnesses say that it was simply "$200 donation"; others say that "from N. Vaevae Pare and family and the band $200".

There was no evidence whatsoever that Miss Pare when handing over the cheque made any statement - made any inference - or made any comment to connect or associate the passing of the cheque with the voting of members of the Bali Hai club. Four people were present at the handing over of the cheque which event had not been pre-arranged - was not expected by the four who had gathered quite incidentally without any knowledge that Miss Pare would join their group.

It is clear that Mitchell has established in his evidence and through his witnesses that Miss Pare did hand over $200 to Mr Teiiti Paio; he at the time was the Chairman of the Bali Hai club which had some 33 members; he was also on Mr Samuel's campaign committee; also present was Tautu Mokoha another member of Mr Samuel's campaign committee. This money was paid over about the 28^th or 29^th of December 1988. However Mr Mitchell has to rely on his witnesses to establish the inferences that he now suggests should be drawn. Thus he infers:

1. That the Cintania club was a commercial venture contrived by Mr Pare living in New Zealand to assist his brother-in-law Mr Samuel with his election prospects in Mangaia.

2. That the band and supporting singers were part of a sophisticated input to Mr Samuel's election process at a critical time leading up to the election itself even if it was only for a week.

3. That the association between the recipients of the cheque as being members of the Bali Hai group as well as being members of Mr Samuel's campaign committee crystallised the strategy of securing a block vote from the Bali Hai members who were regarded as the biggest single group on the island of Mangaia, apart from church groups.

4. Finally, that the combination of the involvement of the Pare family (Mrs Samuel is a Pare); the Cintania nightclub; the cheque; the Bali Hai club; and the association of both the Bali Hai and campaign committee members holding key positions in both organisations completed an irresistible inference clearly establishing bribery.

However inferences, irresistible or otherwise, must be based on first of all presenting as part of one's case facts and evidence from which such inferences can be drawn. I have set out the evidence of the four witnesses called by Mr. Mitchell upon which he rests his case. It is clear that those witnesses do not establish sufficient evidence on which to base the inferences which are now relied upon.

As to the fourth witness called by Mr Mitchell he made no contribution to this particular topic whatsoever. The first three witnesses were all very young men somewhat overawed by the occasion of this inquiry; who appeared to be briefed as to the evidence that they were to give but who failed to come up to brief in a number of important aspects in the course of examination in chief. Thus apart from the very real doubt which I have as a result of the manner in which this evidence was given, what was given was clearly not sufficient on which to base the substantial inferences which now, Mr Mitchell suggests can be clearly drawn from his interpretation of their evidence. It may be said that upon Mr Mitchell's interpretation of the evidence there could be grounds for the Court to consider allegations of bribery. However it is essential to realise that it is not Mr Mitchell's interpretations of the evidence that is relevant and important but rather the evidence itself. And to this extent there is indeed a substantial difference between the evidence as tendered by these three witnesses and the interpretation and inferences which are now being suggested by Mr Mitchell.

It may well be that in circumstances such as we are now considering, there could be a mixture of motives involved, for example, motives of charity and/or alternatively motives of popularity. Or there may even be a mixture of both. If a dominant motive was popularity in order to secure or buy votes as is now suggested by the Petitioners then this might be suggested as indicating bribery. However, if the motive behind Mr Pare and his family and the band were simply charitable in that the family and the band decided to distribute the whole of the funds from the opening night of the Cintania nightclub then this could fairly be regarded as a charitable object or motive. It has been recognised that even if the motive is one of both charity and popularity, and the dominant motive was charitable in nature then this would not be a criteria for criticism nor a basis for the allegation which is now being made. In this respect there has been ample evidence to support the charitable intention of the family and the band, in that $200 was given to the church and there can't be any question that that was not charitable; that $200 was given to the Electoral Committee of Mr Samuel - and that has not been challenged by the Petitioners; and the remaining $200 given to the Bali Hai club which was claimed in evidence as recompense for the voluntary work which members of the club had contributed in no small way to the erection of the Cintania nightclub.

The next matter which I should consider is whether it could be regarded that Miss Pare whose only involvement seems to have been in handing over the cheque on behalf of her family and the band can be rightly regarded as an agent of Mr Samuel. In this regard Mr Samuel said in evidence that he did not organise any drinking parties; he didn't organise any umukai; he didn't organise any dances for political purposes. His evidence even went further and he confirmed that neither he nor his committee asked any supporters to do any of those things to which I have just referred, namely drinking parties, umukai or entertainment. This according to Mr Samuel was in accord with the instructions which the Chairman of his organising committee had laid down from the outset in order to ensure that there would be no criticism whatsoever of his campaign or its organisation or of its committees or supporters. The question one has to pose therefore from a factual and evidentiary point of view is whether Miss Pare who had come to Mangaia to attend her father's funeral could be regarded as an agent in handing over this envelope on behalf of her family and the band which was on the island for a week only. Further could Mr Pare be regarded as an agent of Mr Samuel since it was in effect his money, he being the owner of the Cintania nightclub that held the function and it was his family that had decided to make the donation. In addition it was he who had brought the band to Mangaia for the week that it was there providing entertainment over the Christmas period and which had left prior to New Year, that is, some three weeks approximately prior to the election.

I turn now to the all important question of the standard of proof that is required in serious allegations which constitute, as in this case, a petition of enquiry suggesting that serious improprieties have occurred in events running up to an election. The standard of proof required in such proceedings is based on the balance of probabilities.

That is, the same standard of proof that is required in civil cases although when referred to serious allegations which are criminal offences under the Electoral Act, the standard of proof required in those circumstances is regarded as high. As was referred to in the Mitiaro petition decision "the standard of proof depends upon the nature of the issue. The more serious the allegation the higher the degree of probability that is required. But it need not in a civil case reach the very high standard required by the criminal law." Nevertheless in a case such as the present and where only one act of alleged bribery is committed stricter evidence of proof; and stricter evidence of agency is required to be established.

On this point it is also correct as Mr Mitchell has stated that the burden of proof, that an election was not affected by any transgression, if such proof is indeed necessary, rests on the Respondent. In this connection the Respondent has called witnesses and has provided on his own behalf evidence by going into the witness box himself. In this way he allowed himself to be subjected to cross-examination and so provided the Court with the opportunity of comparing his evidence - his explanations; and the answers which he provided to the examination by his Counsel and the cross-examination by Mr Mitchell.

Applying these legal principles the Court has to determine whether the grant of $200 some three weeks prior to the election, not to any individual voter but to the Bali Hai Club, constitutes a bribe. That is, the intention to be taken from such an action as suggested by Mr Mitchell, was that it was intended to ensure that the whole of the club voted for Mr Samuel because of this donation. I have already said that the evidence of the three witnesses called by Mr Mitchell falls far short of any support for such an allegation. True there was evidence that a cheque had been paid over in an envelope, and on the outside of the envelope, it was shown as being a donation. This donation was made some three weeks prior to the election; it was given to two members of the club who happened to be talking together when Miss Pare came along unannounced to make the handover of the envelope; there was no discussion as whether this money was to be other than the similar donations which had been made to the church and to the campaign committee. In other words a donation of the funds from the official opening of the Cintania nightclub which was owned by somebody from New Zealand, a Mr Pare who happened to be a brother of Mrs Samuel. Incidentally there was no evidence whatsoever of any discussions or talk in or out of both clubs between the handing over of the envelope prior to or until election day. Thus we have the interesting situation of a donation made by Mr Pare who left with the band and was only on the island for a week; that it was made to the Bali Hai club and not to any individual; it was used by the Bali Hai club to purchase liquor; and there is no evidence whatsoever to indicate that this was other than a donation similar to that made to the church, and was in recognition for the voluntary work carried out on the construction of the Cintania club by some members of the Bali Hai club.

Thus while it is perfectly clear that money was in fact paid to the Bali Hai club there is certainly in my opinion insufficient evidence to suggest that this action was "to induce the elector to vote or refrain from voting"; nor is there sufficient evidence that this donation was "to procure or endeavour to procure the return of any candidate or the vote of any elector".

It is at this point that I again refer to the evidence of the three witnesses called by Mr Mitchell. Mr Mautairi the first witness said at one stage in examination in chief that he did not know what the money was for; Mr Mangaara in reply to Mr Mitchell in examination in chief said he thought that the $200 was for the building of the Cintania club and the assistance that some members of the Bali Hai had given to that purpose; the third witness was Mr Arataura who in his examination in chief said having thought about it later he said that perhaps the $200 was to buy our votes. It is not clear as to when this term later refers but it may very well fit into the cross-examination by Mr Puna who asked the question - "is it true after you were interviewed you then had second thoughts? Answer: Yes". This interview referred to an interview by Mr Matepi after the election results.

From the evidence it is clear that $200 was paid to the Bali Hai club some three weeks prior to the election in the circumstances that I have explained. To suggest that this constituted bribery there must be clear and unequivocal proof that this is so. This proof was not provided by the witnesses called by the Petitioners - certainly not to the standard required in respect of allegations of electoral misconduct. I am clearly satisfied that on the balance of probabilities the events prior to the opening of the Cintania nightclub, and immediately afterwards, did not establish bribery as alleged in the Petition.

The second allegation in the Petition relates to treating under Section 70 of the Electoral Act 1966. It is alleged that a Mr Roka Kaiui promised members of the Bali Hai group liquor and food if they attended the Cintania nightclub on the 19^th January 1989 the evening of the election on Mangaia. Evidence was given that Mr Kaiui was a member of the Samuel campaign committee. The further particulars filed by Mr Mitchell set out the allegations regarding treating as follows:

"Para 2(d) (i) offered by Roka KAIOU, and supplied by the proprietors of the CINTANIA night-club;

(ii) Members of the Bali Hai group, and other members of the public attending the Cintania night-club;

(iii) 19^th January 1989;

(iv) liquor and food;

(v) Cintania night-club."

Mr Mitchell in presenting his evidence on this aspect of the petition claimed that the only allegation related to liquor and not to food.

Mr Mitchell called two young men, Teremanuia Tangianaua and Tumaru Tumarama. Both these young men were only 19 years of age and had real difficulty in giving their evidence. The Court was not sure whether this was because of natural shyness and uncertainty with the Court surroundings; whether they were not very bright; whether they had difficulty with the translation of the questions that were put to them; or with the passage of time they were uncertain in a number of material aspects of the evidence which they were endeavouring to present. I make mention of this as it is difficult to make a proper assessment and so be fair both to these young men and also to the Respondent against whom the allegations were made.

In summary these two witnesses alleged that they were working in the fields for the Ministry of Agriculture some two days prior to the election when a Mr Reku Kaiui came along and spoke to them. They stated that in the course of that conversation Mr Kaiui indicated that there would be liquor available after election night in the Cintania nightclub for those who voted for Mr Samuel. Both these young men did in fact go to the Cintania nightclub on the night of the election, one indicating that he was there around about 8.00 o'clock and one later. This would have been after the voting had closed for the election. The first witness suggested that he saw one dozen of beer in the hall; the second witness wasn't sure whether there was any beer there but he said he didn't have any.

On the other hand Mr Reka Kaiui gave evidence that he did in fact speak to a Mr Ngarangi Tuakana two days prior to the election, when he was the supervisor for these young men who had given evidence earlier. Mr Kaiui and Mr Tuakana talked for about an hour dealing with agricultural matters and weeding processes etc and both these gentlemen deny that any mention was made of liquor at the Cintania nightclub on this occasion. It is suggested that these two gentlemen were the ones that were speaking to one another and the other two who had been called by Mr Mitchell were simply part of the group who were working in the fields and they happened to be listening to the conversation when they were having a rest. As far as Mr Kaiui and Mr Tuakana were concerned they claim that there was no mention about liquor at the Cintania nightclub nor of any 13 cartons of beer being supplied. The third witness called by Mr Puna by way of rebuttal was Mr Samuel himself who claimed that there was no liquor supplied at the Cintania hall which was simply an election night headquarters with everybody sitting or lying around waiting for the results to come out which was some time after midnight. Mr Samuel claimed that there was no liquor at the hall pending the outcome of the results.

There is a direct conflict of evidence. Mr Kaiui and Mr Tuakana who were the two that were having the discussion two days prior to the election claim that there was no mention of liquor being made available. As I say those were the two that were having the discussion and the other two witnesses called by Mr Mitchell claim that Kaiui spoke to them directly and it was in that direct conversation and in that connotation that they claim liquor was mentioned and the statement clearly made soliciting a vote for Mr Samuel.

The Court in this instance is faced with a direct and contradictory conflict of evidence. Two witnesses say that they were spoken to directly by Mr Kaiui and a proposal put to them. Mr Kaiui and Mr Tuakana deny that this in fact took place during the course of a one hour conversation between Mr Kaiui and Mr Tuakana. The other conflict of evidence is that there is no agreement between Mr Tangianau and Mr Tumarama on whether there was in fact any liquor at the Cintania nightclub. This allegation is denied by the witnesses called by Mr Puna.

Apart altogether from this conflict and who is or who is not telling the correct story Mr Puna has pointed out in his final submissions that the offence of treating requires an actual giving or providing of, in this case drink. He suggests that even if the two witnesses produced by Mr Mitchell are correct or that their evidence is accepted then at most this would be an offer of an inducement in the future and such would not constitute an offence of treating. That may well be the case but if it was an offer and if the evidence so established it, this might very well constitute the offence of bribery in certain circumstances. However the Petitioner has chosen to rely on this incident as the basis for the offence of treating and having so elected may now be precluded from suggesting that the facts more correctly encompass the offence of bribery.

Once again I am required to consider the quite serious conflict of interest between the witnesses called in support of the petition and its allegations and the witnesses called by the Respondent. As I have said earlier in dealing with the question of bribery, the other allegation referred to in the petition, the standard of proof required is proof on the balance of probabilities. On the evidence before me I cannot accept that Mr Reka Kaiui in the course of his conversation with Mr Ngarangi Tuakana endeavoured to influence the vote of those two young men. Having so found, the allegations of bribery and treating are both disallowed and the petition is dismissed.

No representations have been made to me on the question of costs or on the question of the deposits which have been lodged. Counsel may make written submissions in respect of this aspect of the case. Alternatively I will be prepared to hear further submissions.

DILLON J
JUDGE