Piho v Robati [1994] CKHC 4; Misc 187.1994 (31 May 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
MISC. NO. 1987/94

IN THE MATTER
of section 74 of the Electoral Act 1966

AND

IN THE MATTER
of a Petition by PIHO RUA PIHO,
a Candidate and five electors of the Constituency of Rakahanga
PETITIONER

AND

PUPUKE ROBATI
of Rarotonga, Member of Parliament
FIRST RESPONDENT

AND

TERE MATAIO
of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

SOLOMONA ELIKANA
Returning Officer for the constituency of Rakahanga
THIRD RESPONDENT

Counsel: Mr B.H. Giles and Mr T.G. Nicholas for the Petitioners
Mr M.C. Mitchell for the First Respondent
The Solicitor-General, Mr J. McFadzien for the Second and Third Respondents

Dates of Hearing: 9,10,11 May 1994
Dates of Submissions: 28, 29, 31 May 1994
Data of Judgment: 31 May 1994

JUDGMENT OF DILLON J.

Following the General Election in the Cook Islands held on 25 March 1994, the unsuccessful candidate for the Rakahanga Constituency, Mr Piho Rua Piho, lodged an electoral Petition, challenging the successful candidate Dr Pupuke Robati.

These were the only two candidates for this constituency. The voting statistics were as follows:-

Rakahanga Roll 179

Votes Cast 176

Democratic Party 98

C.I.P. Party 78

Majority 20

The Electoral Petition

The Electoral Petition has been filed pursuant to the provisions of S,74 of the Electoral Act 1966. The Petition is based on the following grounds, viz.:

"(a) Directly or indirectly used or misused Government or Island Council property for electioneering purposes namely outboard motors, a machine, and quantities of diesel fuel, the property of the Government or the Island Council or both in order to induce electors to vote; and/or

(as per amendment application filed)

(b) Directly or indirectly gave or offered to electors valuable consideration namely an outboard motor and fuel therefore in order to induce electors to vote; and/or

(abandoned by the Petitioner)

(c) Directly or indirectly made a gift being an outboard motor and fuel in order to induce persons to procure or endeavour to procure the return of PUPUKE ROBATI or the votes of electors; and/or

(d) Directly or indirectly gave or offered to electors valuable consideration being free medical treatment in order to induce electors to vote; and/or

(e) Directly or indirectly offered office or employment to certain persons if they voted in favour of the Democratic Party candidate in order to induce electors to vote; and/or

(f) Directly or indirectly threatened injury, damage, harm or loss (continued unemployment or the withholding of employment opportunities) unless persons voted for the Democratic party candidate or refrained from voting thereby unduly influencing voters in the manner and exercise of casting their vote or the right thereto;

(as amended by the Petitioner)

(g) Disseminating or causing or encouraging to be disseminated amongst electors, advice that the Democratic Party officials could, through various persons or means (Polling Clerk Temu Hagal in particular), ascertain and verify the actual manner in which any elector had voted, thereby interfering with the secrecy of the ballot and otherwise unduly influencing voters or irregularly influencing the exercise of their right to vote;

(h) Disseminating or causing or encouraging to be disseminated amongst electors, advice that the Democratic Party officials could, through various persons or means (Polling Clerk Temu Hagal in particular), ascertain and verify the actual manner in which any elector had voted and to use such information to the detriment of the voter thereby interfering with the secrecy of the ballot and otherwise unduly influencing voters or irregularly influencing the exercise of their right to vote;

(i) Directly or indirectly interfered with the right of certain voters to cast a vote in secret by requiring certain voters to callout from the polling booth in audible tone the name of the candidate for whom the voter was about to vote or for whom the voter had voted, thereby interfering with the secret ballot and otherwise influencing the voter from exercising his or her own free will when casting a vote,

(j) Upon or in consequence of such gifts and/or offers and/or activities as aforesaid procured or endeavoured to procure the return of PUPUKE ROBATI or the votes of electors; and/or

(k) Corruptly gave or provided meat, drink and other provisions to electors on Rakahanga for the purpose of procuring the election of PUPUKE RQBATI.

(abandoned by Petitioner)"

These allegations of irregularities in the course of the campaign leading up to the election arose from the alleged misuse of Government property, electoral bribery, and undue influence in various forms. These allegations were strenuously denied by the Respondent and countered by similar claims against the Petitioner his agents and the witnesses he called in support of his Petition.

It would require an exhaustive and detailed examination of those claims and counterclaims for a proper evaluation of the evidence presented and with the very real possibility of not being able to resolve what evidence should be accepted and what should be rejected; but more importantly whether the evidence so presented by the Petitioner as unacceptable should indeed be classified as such simply because Rakahanga has a small and isolated population.

I refer by way of example only to the claim that involved Dr Robert Woonton in an allegation of bribery. There had not been a Doctor in Rakahanga for many years. Doctor Woonton was asked by the only nurse on the Island to attend her clinic. He did, and freely treated a great many people even including Mr Rua Piho. This gesture one would have thought could be categorised as charitable; however because it occurred in the day immediately after the election date was announced in February 1994 and because Dr Woonton was the leader of the party to which the First Respondent belonged, it was classified as bribery.

The difficulty in trying to disseminate evidence of this nature would not only be an exercise in futility, but as the voting figures clearly identify, would also be very destructive to the peace, goodwill and spirit of the small island community of Rakahanga. It could identify people who the Court believed or did not believe; it could impugn the authority of leaders in the community, and it could affect the respect and loyalty and spirit that is so essential to the preservation of the identity of the Northern Group Islands of the Cooks.

For those reasons I do not propose to undertake that exercise.

However there arose incidentally during the three day hearing of this Petition, questions as to alleged interference in the conduct of the election and whether there were breaches of those provisions contained in both the Constitution and the Legislation that are intended to preserve the secrecy of the ballot in the Cook Islands. It is these allegations I propose to now enquire into and assess.

Secrecy of the Ballot

In turning to a consideration of how some of the voting arrangements were conducted on election day there is surprisingly little disagreement between the parties. The only differences relate to the interpretation Counsel have suggested for some of the legislation that has to be considered.

It is accepted that Article 27(2) of the Constitution requires members of Parliament to be elected by secret ballot. The Electoral Act 1966 has many provisions to ensure compliance with the Constitution by means of a secret ballot. There is therefore the Constitutional and Legislative requirement to ensure that the secrecy of the ballot is preserved.

It is not the general voting arrangements however which were the subject of scrutiny and criticism by the Petitioner; which were the subject of acceptance and exoneration by the Respondent; and which were the subject of examination and explanation by the Solicitor General on behalf of the Second and Third Respondents.

Rather it is limited to nine particular votes recorded at the only polling booth on election day; and nine particular votes worded by those voters in their own homes. It is these 18 votes which form the basis of the Petitioner's allegations that there have been serious breaches both of the Constitution and of the Legislation.

Section 50 of the Electoral Act 1966

It is the interpretation of S.50 which has been the subject of diverse opinions by both the Petitioner and the Respondent. S.50(l) states as follows:

"50. Blind or disabled voters - (1) If any voter is blind, or is unable to read or write (whether because of physical handicap or otherwise), and so desires, the presiding officer shall, together with any scrutineers present not exceeding two, and if necessary an interpreter, retire with the voter into the inner compartment and there make up the voting paper according to the instruction of the voter, and the presiding officer shall sign his own name at the foot thereof."

This sub-section refers to and applies to any voter who is blind or is unable to read or write. It is accepted that there were no blind voters for the Rakahanga election. The nine voters recorded at the polling booth were therefore either unable to read or to write. The sub-section directs that "... the presiding officer shall ...make up the voting paper according to the instruction of the voter...". The evidence of Arahu Tuteru identified Mr Temu Hagai as the presiding officer; Mr Fabian Kairua as the returning officer; the Reverend Solomona Elikana as the electoral officer; and Mr Munokoa Pepe as the polling clerk. This evidence of Mr Tuteru was unchallenged. The evidence of Mr Hagai was clear and unequivocal - that to those voters who required his assistance he read out the candidates names three times as required in the Manual of Instructions.

But what does the Manual of Instructions prescribe for voters who are unable to read or write. Part IX, Section 3 in referring to Section 50 provides as follows:

"BLIND, DISABLE OR ILLITERATE VOTERS (SEC. 50)

Attending the Blind, Disable or Illiterate Voters may be delayed until the Polling Booth is cleared of other intending voters to avoid embarrassment, errors, and also the principle of voting is secret. For such cases the following procedures should be administered:

(a) At the request of a voter who is wholly or partially blind, or unable to read or write (whether because of physical handicap or otherwise), the Presiding Officer shall accompany him behind a screen and assist him in marking the voting paper or mark it on his consented behalf.

(b) Some disable voters are either blind and or deaf. Before accompanying him behind the screen, clear the polling booth of all voters. Instruct the Police Officer to stop voters entering the booth.

(c) There shall also be present behind the screen, not more than two Scrutineers, and if necessary an interpreter.

(d) The procedure to follow when assisting the blind voter is as follows:

(1) Read out the Candidates Names and their political affiliation slowly and clearly, 3 times.

(2) Instruct voter that the names will be read out for the final time and for him to indicate whom he desires to vote.

(3) The Presiding Officer will place the voters mark in the appropriate box against the candidates name.

(4) The Presiding Officer shall sign his name at the foot of the voting paper.

(5) The Presiding Officer then folds the paper and accompany the voter to the ballot box and place the voting paper in the ballot box."

It will be seen that it is Paragraph 3(d) that provides the procedure for a blind voter. The manual does not propose that procedure for a voter who is unable to read or write.

It was the procedure prescribed in the manual for blind voters that Mr Hagai applied to the nine voters who required assistance at the polling booth.

It was this procedure that Mr Tuteru questioned; and that necessitated the polling booth to be closed for a time while his protests were dealt with according to Sergeant Vaikai. It was this method of assistance to the nine voters who could not read or write or who required some assistance that is now challenged - firstly because it is a procedure not provided for in the manual; and secondly it causes an immediate breach of the secrecy requirements when the voter pronounces his preferred candidate.

It was this method, genuinely but mistakenly, adopted by Mr Hagai that Mr Tuteru referred to as causing him so much concern. He described the procedure as follows - Mr Hagai would read out the names of the two candidates three times; the voter would say who he wanted to vote for; that Mr Hagai would then mark the voting paper; the voter therefore never touched the voting paper; and that the announcement by Mr Hagai of the candidate selected by the voter was audible to people on the verandah or actually inside the large polling booth. This last claim that the announcement was audible was strenuously denied by Mr Hagai and his denial confirmed by Sergeant Vaikai who was stationed on the verandah outside the polling booth; nevertheless Mr Tuteru claims to have heard the selected candidate; recorded it; and objected to the procedure being used by Mr Hagai.

It is this procedure the Petitioner alleges is in breach of the secret ballot provisions.

Having considered sub-section (1) of S.50, I turn now to sub-section (2) of that Section which states as follows:

"(2) If any elector is precluded by reason of illness or infirmity from attending at any polling booth, the Returning Officer in charge shall make such arrangements as are in his opinion reasonably practicable to enable the voter, if he so desires, to vote."

This sub-section makes provision for an elector who is unable to attend a polling booth by reason of his or her illness or infirmity. It would be appropriate to identify these nine votes as the nine "sick votes". What does the Manual of Instruction say:

"The procedure of administering sick votes on election day is no different to that of the Polling Booth."

Mr Hagai confirmed in evidence that the formula for blind people be applied to sick voters even though the manual stipulated that sick votes are to be recorded no differently to that of the ordinary Polling Booth votes. However the evidence on this issue goes much further. When sick votes were being taken Sergeant Vaikai confirms that he, Mr Kairua, the Reverend Elikana, Mr Hagai, the two scrutineers were all present. In addition on some occasions members of the family were also present to hear the announcement of the candidates and the selection made by the sick voter.

Again it is this procedure which the Petitioner claims contravenes the secrecy of the ballot provisions.

There is a proviso to sub-section (2) of Section 50 which states as follows:

"Provided that every person present when an elector so votes shall refrain from making himself acquainted with the vote given by the elector, and shall not in any way attempt to influence or interfere with the elector in the exercise of his vote or allow any person to see or become acquainted with the elector's vote or to assist the elector to vote or to interfere in any way with the elector in relation to his vote."

It is suggested that this proviso applies to both sub-section (1) and to sub-section (2). I believe the proviso applies to sub-section (2), i.e. in relation to sick voters only. If it applied to sub-section (1) as suggested by the Petitioner then a blind person could never vote; that person would as a result be disenfranchised; and that would be a situation contrary to the provisions of the Constitution. However the proviso is very relevant when considering the nine sick votes and the circumstances under which they were recorded. Quite clearly the procedure adopted and all the people present when the voting was openly declared contravene the requirements of the proviso.

Submissions on s 50 by the Petitioner

"In my submission, the irregularity which has been established is serious. The constitutionally required election process has not been followed. The voting process was not secret. This would seem to have occurred as a result of innocent and incorrect adoption of the manual. That part of the manual having application only to blind voters has been applied to all disabled voters, contrary to the provisions of the Act. The Polling Station was not cleared, at the homes more people were present than ought to have been present. In both situations the vote cast could be heard publicly. There is no way of ascertaining the effect that requiring a public announcement of the vote had upon the person casting and upon others who heard the call of the vote. It may well have resulted in a vote different from the vote that would have been cast "in secret". It is not for the petitioner to prove materially; that falls to the respondent."

Submission on S.50 by the Respondent

"2.1 ...there can be no argument that the Constitution requires that general elections in the Cook Islands are to be conducted by secret ballot. However, it is equally clear that special arrangements have to be made for those who ore blind, or are unable to hear or read and write; and for whom assistance is required to complete the voting paper. Section 50(1) of the Electoral Act 1966 (‘the Act’) provides for that. Plainly the voter must indicate the person for whom he wishes to vote to the presiding officer, who is accompanied by two scrutineers. The scrutineers are present to ensure that the presiding officer correctly ‘makes up the voting paper according to the instruction of the voter’.

2.2 The fact that that was done on nine occasions in the electorate of Rakahanga cannot mean that the successful candidate was not elected by secret ballot (Art 27(2)). To contend otherwise would inevitably mean that persons in the category contemplated by S.50(1) of the Act could not exercise their constitutional right to vote.

2.3 More alarmingly, such a contention could arguably lead to the consequence that the election of the ‘Parliament consisting or 24 members ...’ (Art 27(e)) was void in its totality, there being no logical basis for confining the effect of such an alleged breach of the Constitution to only the electorate where it occurred."

Submissions on S.50 by the Solicitor General

"5. The Petitioner says that the distinction. between S.50(1) and S.50(2) voters is important because different voting procedures apply to each, the type of procedure in each case depending on which category the voter falls into. This is conceded. S.50(1) is intended to apply to persons physically incapable of marking a voting paper. S. 50(2) is intended to apply to persons able to mark a voting paper, but incapable of attending a ‘polling booth’ as defined in Section 2 of the Electoral Act."

"It is conceded that a vote given orally may contravene the proviso to Section 50(2) in the case of a vote cast under that sub-section."

Section 78 of the Electoral Act 1966

Section 79 states as follows:

"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 any by this Act and that the irregularity, failure, or mistake did not affect the result of the election."

The question of what constitutes an irregularity within the provisions of S.78 was considered in the case of re Mitiaro Election Petition (1979) 1 NZL S.1. That decision identified the operation of that section as being restricted to procedural irregularities in the true sense. S.78 has no application to any breaches of secrecy as alleged by the Petitioner in these proceedings.

Conclusion

The Petitioner has alleged breaches of the secrecy provisions relative to the nine votes recorded for people who were not able to attend the polling booth. The Petitioner claimed each home was in fact a polling booth. In the sense that votes were cast at each home visited that may be a reasonable submission. It is however not in accord with the interpretation provisions of the Act. However S.50(2) provides for such votes and this Court must therefore consider how and in what manner they were made, especially since it has been revealed that the Respondent received six of the nine votes recorded.

The Respondent makes two suggestions as a means of remedying any defect or irregularity associated with the total of 18 votes that have been identified. Firstly he says:

"The majority was 20 votes. The evidence was that of the nine, two were for Piho Rua, and seven for Dr Robati. Hagai (p2.1.26). The appropriate test is to disallow the votes for Dr Robati. He would still have won."

Secondly, he says:

"Effect of the result- if an irregularity is found then added to the votes at the booth, 18 votes are affected. The proper course following Donne C.J. in Te-Au-O-Tonga Petition is to disallow them - not to add them to the other candidates votes. Thirteen votes (seven at the booth and six at houses) voted for Dr Robati. If those votes are disallowed, then the result is not affected - that is Dr Robati would still have won."

That is the Respondent's majority would be reduced from twenty to seven. I do not accept that solution suggested by Counsel for the Respondent. The Petition alleges a serious breach of the secrecy provisions guaranteed by the Constitution and preserved by the Legislation. There can be no doubt that such a breach has occurred - confirmed by the evidence and reluctantly accepted by the Respondent in his submissions. At the Polling Booth seven votes were in favour of the Respondent and two in favour of the Petitioner. At the home visits for those voters unable to attend the polling booth six were in favour of the Respondent and three in favour of the Petitioner.

How is the secrecy of the ballot box preserved when this information is freely available and now relied upon, and is available to - the voters family; Sergeant Vaikai, the Reverend Solomona Elikana and others. Mr Tutere who was also present, referred to his records which identified with the word "URU" those Voters whose choice of candidate he was able to actually record. When questioned about this Mr Hagai stated:

"Q. Is it your position that when you call out the names for the voter to get assistance it was not unduly loud.

A. There is doubt in my mind because of the word "URU". That word means call out for everybody to hear but read that is what I did."

There can be no doubt that there has been a significant breach of the secrecy obligations which cannot be patched up by an adjustment to the voting figures as suggested by Counsel for the Respondent. In any case the Petitioners own figures are contaminated by these questionable votes recorded in. his favour.

This case in my opinion falls squarely into the dicta expressed by the Chief Justice in the Mitiaro case. It is not an irregularity that can be disregarded under the provisions of S.78; it is not a corrupt practice within S.68 of the Electoral Act. Rather the Court in this instance is left in no doubt that as a result of an innocent but nevertheless incorrect interpretation of the electoral process a serious breach of secrecy has occurred which cannot be remedied by the assumptions as to what might have been the position or to the juggling of votes to try and remedy the breaches that have occurred. The onus is on the Respondent to satisfy this Court that the transgressions that I am satisfied have occurred could not have affected the result of the election.

This understandably the Respondent has not been able to do.

As a result of this finding it is not necessary to consider either the evidence or the submissions that allege or deny electoral bribery or undue influence and associated allegations. The breach of secrecy was so serious as to vitiate the result; to void the election; and to necessitate the Chief Electoral Officer now taking the appropriate steps to arrange a by-election.

I therefore make the following determinations:

1. That the Petitioners have established serious breaches of the secrecy provisions of the Electoral Act 1966;

2. That the irregularities established have materially affected the election process;

3. I determine that the First Respondent was not duly elected and that his election is void and the election for the Constituency of Rakahanga itself is void;

4. Pursuant to S.79(2) I direct the Registrar to transmit my determination to the Chief Electoral Officer;

5. Leave is reserved to all parties to apply for further directions should this be necessary.

6. All questions of cogs are reserved and if necessary Counsel may make submissions in writing in the first instance

DILLON J.