Piho v Robati [1994] CKHC 5; Misc 187.1994 (29 July 1994)

IN THE HIGH COURT OF THE COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(DIVISION)
MISC. NO. 187/94

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 MATA
Of Rarotonga, Chief Electoral Officer
SECOND RESPONDENT

AND

SOLOMONA ELIKANA
Returning Officer for the constituency of Rakahanga.
THIRD RESPONDENT

Counsel: B.H. Giles and Mr T.G. Nicholas for the Petitioners
Mr M.C. Mitchell for the First Respondent no Solicitor-General
Mr J. McFadzien for the Second and Third Respondents

Dates of Hearing: 9, 10, 11 May 1994
Date of Original Judgment: 31 May 1994
Date of Judgment: 29 July 1994

JUDGMENT OF DILLON J

INTRODUCTION

This Court on 31 May 1994 delivered a Judgment making the following determinations:

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

2. That 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 costs are reserved and if necessary Counsel may make submissions in writing in the first instance.

The first Respondent appealed against that decision and the Court of Appeal has found in part as follows:

"Looking at the determination of the Court we find that it has not been established that there have been serious breaches of the secrecy provisions of the Act. We also determine that the election of the Appellant and the election for the Constituency itself cannot be said to be void because of the breaches of the secrecy provisions. We are not satisfied however on the information presented before us that the Judge is now functus officio. The Petition would therefore appear to remain extant and requiring determination of the remaining complaints alleged in the Petition."

The oral Judgment of the Court of Appeal also stated that:

"We shall give detailed reasons for our Judgment in due course."

There are three preliminary matters immediately arising from this oral judgment of the Court of Appeal:

1. The Court of Appeal has not yet delivered the detailed reasons for its Judgment. Because of a perceived uncertainty expressed in that oral judgment as to whether this Court has jurisdiction to determine the remaining allegations in the electoral petition, each of the three Counsel for their respective clients have now formally requested this Court to make a determination of those issues still requiring to be addressed and have accepted the jurisdiction of this Court to do so.

2. Mr Grieve's memorandum requests that all remaining issues in the Electoral Petition be determined, that is other than the allegations as to breaches of Secrecy. The Solicitor-General in a very clear and concise presentation correctly interprets the original judgment of this Court and makes the same request as Mr Grieve.

Mr Mitchell is not quite so forthcoming and expresses a certain reluctance that the Court should determine these remaining issues. He claims in his memorandum dated 8 July 1994 that certain observations by the Court confirm that the onus of proof has not been discharged; that onus, he says, is an obligation on the Petitioner which has not been satisfied; and that as a result all that is required is a formal finding by this Court to that effect. The subsequent memorandum by Mr. Mitchell dated 11 July 1994 relies on those earlier submissions first referred to but does in addition formally request this Court to proceed to a determination of the remaining issues.

However the Court of Appeal directed determination of the remaining complaints alleged in the Petition." The responsibility of this Court therefore is quite clear.

3. Article 29(2) of the Constitution provides that Parliament shall not meet until all election petitions have been determined by the, High Court at first instance. The implications of legislation already passed prior to the date of this determination are issues upon which the Solicitor-General will have to advise Parliament. Of immediate concern, however, is the fact that the Solicitor-General has advised the Court that Parliament is at present adjourned and is to recommence sitting on Wednesday 10 August 1994.

For the above reasons it is necessary to proceed with a determination of the balance of the allegations in the electoral petition as directed by the Court of Appeal and prior to that Court delivering the detailed reasons for its judgment; and to rely on the acceptance by all parties to the jurisdiction of this Court to make the determination which it now proposes to do.

THE ALLEGATIONS

Initially the Electoral Petition filed pursuant to the provisions of S.74 of the Electoral Act 1966 relied upon eleven separate grounds of complaint. In the course of the hearing four of those grounds were abandoned. The Court of Appeal, in its decision on the breach of secrecy allegations has disposed of one further ground. The remaining six grounds to be now considered are identified as they are set out in the Petition, and are as follows:

"2 (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

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

2 (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

2 (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)

2 (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.

2 (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,"

The first three grounds allege bribery. The remaining three grounds allege undue influence.

The evidence adduced over a three day hearing in Rakahanga and an afternoon hearing in Rarotonga in turn to support, and in turn to deny those serious allegations will now be considered in detail.

THE EVIDENCE AS TO BRIBERY

Ground 2(c)

The evidence relied on to support the allegations in Ground 2(c) was directed at an outboard motor which had been supplied to Mr. Danny Piho. The circumstances surrounding the supply of this motor, it is now suggested, constitutes bribery within the definition set out in Section 69 of the Electoral Act 1966.

Mr. Piho is one of the prominent leaders on the Island of Rakahanga. He is Deputy Chairman of the Island Council; one of only two Justices of the Peace on the Island; is a senior deacon of the Cook Islands Christian Church; captain of the Boys Brigade; and was previously the Chief Administration Officer for the Island. There is no doubt that Mr Piho is held in high regard and during his 45 years on the Island has made a very substantial and valuable contribution to the Island's community affairs.

Early in 1994 prior to the election he was employed by the Marine Department. In February his employment was terminated and he was refused permission as a result to use the outboard motor that he had previously used to go to and from his Motu in the Rakahanga Lagoon.

It is suggested that his employment was terminated because he was the Campaign Manager of the Democratic Party on the Island who supported Dr Robati; that the termination of his use of the outboard motor was to prevent or hinder his transporting Democratic supporters to the Motu; and that all this was organised by supporters of the Cook Island Party and central Government in Rarotonga.

As a result a valuable substitute outboard motor materialised. Mr Piho said that he requested the motor by letter which has never been sighted or produced; Mr Hurricane Woonton who sent the outboard motor to Rakahanga from Manahiki was not a witness at the hearing and so provided no testimony as to what arrangements were in fact made for its supply; evidence as to events at the wharfs on the motor's departure from Manahiki and arrival at Rakahanga says that it was a gift; Dr Woonton, the President of the Democratic Party, brother of Hurricane Woonton, and the owner of the motor says it has been sold to Mr Piho, has not been paid for, and no demand has been made for payment. I could go on at length about the discrepancies in the evidence surrounding this much talked about outboard motor. It is one of the many examples of the evidence in this case which I have previously described as providing "an exercise in futility".

I am satisfied that the evidence discloses that the Cook Islands Party supporters arranged termination of Mr Piho's employment and as a consequence his use of the outboard motor that he had previously enjoyed. It is clear that Dr Woonton, as President of the Democratic Party, offered a substitute outboard motor. Whether this was a gift or a sale is in my opinion immaterial in the circumstances of those events. It certainly could not be an inducement to make Mr Piho, as the Democratic Party Campaign Manager, either vote or refrain from voting in the election. It was nothing more than Dr Woonton challenging the action of the Cook Island Party supporters in terminating Mr Piho's employment by providing a substitute outboard motor for the one which Mr Piho had previously used to go to and from his Motu.

That in my opinion is not bribery within the provisions of S.69 of the Electoral Act 1966.

Ground 2(d)

The background to this allegation relates to the visit to the Island by Dr Robati and Dr Woonton - the latter being the National President of the Democratic Party. It was shortly after the date of the election was announced.

During that visit Dr Woonton arranged to see some fifty residents at the Islands medical clinic. It is now suggested that this action on the Doctor's part induced electors to vote for Dr Robati or was intended to have that result.

There is again a conflict of evidence as to how this clinic was arranged, some say by the Democratic Party supporters on the Island; some say by Dr Woonton himself; some say by Dr Robati; while the only nursing sister on the Island says that she suggested and arranged it. I accept without hesitation the evidence of this nursing sister, Emily Tuteru, who arranged the clinic. She is the sole Medical Officer on the Island; she was born on Rakahanga and apart from a short period that she served in India, she has lived and worked all her 39 years on the Island. She is responsible for the health and welfare of all the inhabitants and quite naturally grasped the opportunity of Dr Woonton's visit to arrange a general clinic. It was she who suggested that Dr Woonton attend her clinic; and it was Dr Woonton who acceded to her request. There had not been a Doctor on the Island for many years and it was a perfectly natural reaction on Dr Woonton's part to hold a clinic; see some 50 patients including the Petitioner I might add; and carried out his professional duties without in any way discussing politics. This was confirmed by the nursing sister who was present throughout.

It is now alleged that this free medical treatment is bribery and was intended to induce voters to vote for the, Democratic candidate. The evidence in my opinion clearly establishes that that suggestion is an unfounded slur on the nursing sister who organised the clinic and on Dr Woonton who provided the free medical treatment in the best tradition of the profession to which he belongs.

The free medical treatment offered by Dr Woonton is not bribery within the provision of S.69 of the Electoral Act 1966.

Ground 2(e)

The opportunity to hold office or to be gainfully employed in Rakahanga is of paramount importance to both young and old alike. It is important for the old to retain positions of employment; and it is just as important for the young to try and achieve such positions. As in every election in modern times, no matter where, employment is always a key factor in the seeking of support by the various candidates. There can be no criticism levelled at candidates or their supporters where work programmes or employment opportunities are propounded as the solution to unemployment. There can be no criticism to variations of such a theme, Where, however, there is a suggestion that a specific job or opportunity is offered a voter provided he votes for the party or candidate or supporter making that offer, then the circumstances must be considered more critically. The converse also applies - that is if one does not vote for a certain candidate then he or she is likely to loose their job or position.

It is not the generalised situation referred to above which is relied by the Petitioner. Rather it is the specific approach to identified witnesses that the Court has been asked to examine.

It is in this context that reliance is placed on the evidence of Toreka Repaio; Nga Masters; and Repaio Repaio. It is their evidence that if they voted for the Democratic Party they would each get a job. However the evidence of these witnesses not only identified the inducements that were made by various officials of the Democratic Party, the rewards being the promises of jobs, but also the evidence detailed the pressures to which these witnesses were subjected.

For example, Repaio Repaio gave evidence of three officials pressurising him - one to the extent of threatening to kill him. Toreka Repaio gave evidence that she was a Cook Island Party supporter but she had been promised a job by a Democratic Party official if she would vote for the Democratic candidate.

Nga Masters, in evidence, explained how he had been told that "to get a job you had to vote for the Demo, Party". He acknowledged that he believed what he was told; and that he believed he would secure a job for himself if he voted as he was directed.

It is true that the witnesses called by Mr Mitchell on behalf of the First Respondent denied those allegations. While those three witnesses subpoenaed by the Petitioner were closely questioned in cross examination, nevertheless they did not falter in their description of the various ways they believed they were required to vote in accordance with the demands made on them by the various Democratic Party officials.

These witnesses referred to rallies and barbecues where other voters were present and were also subjected to the same job inducements as they were. That evidence was of a generalised nature and because neither names, dates or other forms of identification were forthcoming, it must be disregarded. However there is no doubt that the electioneering activities on the Motu wore well organised and popular occasions enjoyed by all who attended. That was a perfectly appropriate and acceptable form of electioneering. It was the activity about which Mr Masters and the two Repaio's gave evidence which is of concern.

If that evidence is accepted it would constitute an offer of employment to each of those three voters and so again if accepted could induce them to vote for Dr Robati,

THE EVIDENCE AS TO UNDUE INFLUENCE

Ground 2(f)

In support of this complaint the Petitioner relies on the evidence of firstly Fono Piniata - he referred to a meeting with Mr Danny Piho on 24 February 1994, a date he was able to identify because he always wrote up his diary and which he did on this day recording the meeting with Mr Piho. He explained how he became frightened as a result of the meeting and the discussion with Mr Piho. Eventually he agreed with Mr Piho to join his side and vote for the Democratic Party. Mr Piniata worked with Mr Piho in the Fisheries Department and the manner in which he gave his evidence supported as it was by his diary references impressed the Court as a credible witness.

The second witness was Tupuna Taura who was the messenger as it were who delivered the Minister's letter to Mr Piho advising the latter that his employment was terminated. The manner of Mr Piho's termination of his services has been the subject of adverse comment in the course of this hearing. That comment is justified. It does not however justify the Cook Island party adopting an over aggressive counter to what it may perceive as unjustified termination of Mr Piho's employment. Of course I am not required to make a decision on those issues.

Mr Taura gave evidence of how upset Mr Piho was when he delivered the Minister's letter to him. That would be perfectly natural. Anybody would be upset in that situation. However that unfortunate occurrence did not justify Mr Taura being told that he would loose his job if he did not vote for Mr Piho's Democratic Party.

Again, if what these two witnesses have said is true then there could be undue influence exerted on these men.

Grounds 2(g) and 2(h)

These two grounds can be conveniently dealt with jointly. They allege that persons, in particular Mr Temu Ragai, told voters that whoever they voted for could be traced and as a result firstly the secrecy of the ballot was seriously interfered with (Ground 2(g)); and secondly such information would or could be used to the detriment of the voter (Ground 2(h)). Mr Hagai is particularly identified in this respect.

Mr Hagai is the Mayor of Rakahanga; he was Secretary of the Democratic Party, but resigned on 14 March 1994 - that is prior to the election. He resigned because of his position as the Presiding Officer for the forthcoming election. In evidence, he stated that following his resignation as Secretary he never attended any party meetings and took no further part in electoral promotions or rallies etc.

Not only is Mr Hagai the Mayor; but he, like Mr Piho, is the other JP - there being only two on the Island; he has been a teacher for 39 years and Principal of the School for 12 years. Mr Ragai, like Mr Piho has had a distinguished career and made a very substantial contribution to the Island's welfare interests; educational advancement of its children; and general wellbeing of its residents on this very isolated Island in the Northern Group of the Cook Islands.

Having made those acknowledgements it is now the Court's duty and responsibility to consider the evidence tendered under subpoena by those making the allegations of influencing voters; and at the same time to consider the denials by both Mr Piho and Mr Hagai when they gave their evidence to the Court.

These allegations of undue influence were made by Repaio Repaio; Fonu Piniata; and Toreko Repaio. Repaio Repaio, in giving evidence, explained his experiences this way:

"I was asked as to how I would vote. Tinotea asked me how I would vote. Knowing that they were victimising me I stood up and said I would vote for Demo. Mr Hagai told me before the election privately at his residence. He said - that I vote for the Demo. Party and we will go on the Motu and show us how to vote. He said - that I should have trust in him and I should vote for the Demo. Party. He would show me a voting paper.

It concerns me because I vote for Demo. Candidate. If I vote for the Demo, I'd get 1st job. Temu Danny and Tinotea anything said - if I didn't vote for Pupuke they would kill me. Hagai said he was a polling clerk - he said what he could do. He said on election day he would give signals to me when I come into the booth by eyebrows. Tere George, said that if I voted for Rua they would kill me.

Did you know your vote would be a secret - I understand between you and God - yes.

Before you cast your vote did anyone say how you voted – no.

At any time on the Motu was the same question put to everyone there – yes.

What was said and by whom - this is what Hagai said. He would know for whom you voted.

After the election were you concerned - Yes it has been a concern to me but because I am a full supporter of the C.I.P. it didn't concern me."

Turning now to Fonu Piniata, his evidence in part is as follows:

"Did Danny say anything about knowing how you voted? - if you don't vote for one side they could find out - yes."

Finally there is reliance on the evidence of Teneko Repaio who said:

"Danny said if I vote for the Demo then I would get a job - I took him seriously and believed him. Temu told me that he could know how people voted. He said it to everyone. If a Demo supporter voted for C.I. party they would know. I was sad.

Were you scared - yes."

Now both Mr Danny Piho and Mr Temu Hagai gave evidence to the Court and denied in a general way the evidence of the three witnesses first referred to. The Court is faced once again with a serious conflict of evidence. What evidence is to be believed and what is to be rejected. There can be no doubt that if the evidence of the two Repaio's and Mr Piniata are preferred then there has been a serious breach of S.71 because of the undue influence exerted by either Mr Piho or Mr Hagai or both. On the other hand, that evidence has been strenuously denied by Mr Piho and Mr Hagai, two of the most prominent and important people on the island of Rakahanga.

THE STANDARD OF PROOF

Having considered the evidence presented to the Court in support of the six remaining allegations, and having listened carefully to the denials of bribery or undue influence by the two principal witnesses called on behalf of the First Respondent, it is necessary now to assess that evidence particularly as to its relevance to the standard of proof required in such cases.

The decision of re Mitiaro Election Petition (1979) 1 NZLR S.1 is recognised as a landmark authority on election petitions. At Page S.7 the criteria of proof in electoral petitions is described as follows:

"20. As to the standard of proof required in proceedings such as these I am satisfied it is as submitted by Mr Temn, namely, on the balance of probabilities. These proceedings are civil and while the Court is concerned with the allegation of treating which is an offence under the Electoral Act, the standard of proof is still that which applies to civil cases. However, as was stated in Hornal v Neuberger Products Ltd [1957] 1 QB 247; [1956] 3 All ER 970 the standard of proof required in circumstances such as these is high. It is put this way in the Hornal case:

"... the standard of proof depends on 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" (ibid, 258; 973).""

I accept immediately the caution that "the more serious the allegation the higher the degree of probability that is required". The allegations of bribery and undue influence alleged in this Petition qualify, in my opinion for "the more serious" category and must be assessed accordingly, at the higher level of probability. That therefore is the burden of proof which is required of the Petitioner; and that is the standard upon which this Court must try and assess the evidence presented.

Having declared the standards that must be met, I turn now to the identification of the allegations by definition.

BRIBERY

Section 69 of the Electoral Act 1966 defines bribery as:

"Every person commits the offence of bribery who in connection with any election-

(a) Directly or indirectly gives or offers to any elector any money or valuable consideration or any office or employment in order to induce the elector to vote or refrain from voting;"

The submissions presented by Mr Giles on behalf of the Petitioner acknowledged there were four ingredients in Section 69(a) which had to be proved. He stated them this way-

"(a) the giving and offering consideration

(b) of value

(c) to induce voters to vote for candidates

(d) with the necessary intent.

Ingredients (a) and (b) are accordingly susceptible of direct proof. Ingredients (c) and (d) except in unusual cases are frequently a matter of inference."

The question of proof by inference therefore coupled with the burden of proof at the higher level of probability, is the responsibility of the Petitioner who has levelled the allegations against those members of the Democratic Party for whom the First Respondent is required to now accept responsibility. I agree with Mr Mitchell that looking at the evidence "in the round" as suggested by the Petitioner is not the test to be applied and is one which I shall not apply.

UNDUE INFLUENCE

Section 71 of the Electoral Act 1966 defines undue influence as follows:

"Every person commits the offence of undue influence who by himself or any other person on his behalf uses or threatens to use any force violence or restraint or inflicts or threatens to inflict any injury damage harm or loss upon or against any person in order to induce or compel that person to vote or refrain from voting or on account of that person having voted or refrained from voting or whom by abduction duress or any fraudulent device or contrivance in any way interferes with the free exercise of the franchise by an elector."

Mr Giles, in his submissions suggests that Section 71 when applied to the present case means-

"Every person commits the offence of undue influence who by ... any other person on his behalf ... threatens to inflict any ... damage harm or loss upon or against any person in order to induce or compel that person to vote ... or whom by ... any fraudulent device or contrivance in any way interferes with the free franchise by an elector."

Mr Mitchell, however, suggests he "has been unable to find any judicial consideration of the expression "any fraudulent device or contrivance". I propose to proceed on the basis of "any fraudulent arrangement or deceitful practice" and to consider the evidence of all the witnesses called and the detailed submissions presented by both Counsel.

THE ISLAND OF RAKAHANGA

Rakahanga is a small but beautiful Island in the Northern Group that go to make up the Cook Islands. 176 people voted at the last election so the total population is probably less than 500. It comprises some 1,000 acres of fertile land and encircles a large lagoon. It did have an airstrip which unfortunately has been destroyed; and it has a wharf that is only usable by small open boats powered by outboard motors. The only access to the outside world available to the residents of Rakahanga is by a four to five hour journey in a small open boat to the adjoining island of Manahiki, which has a regular air service to Rarotonga.

Despite this isolation, and probably because of it, the island is lush and fertile; it is beautiful and clean; and the Islanders appear happy and contented.

I believe that it is necessary, for very many reasons, especially in the context of this investigation, to reflect on these circumstances and their relevance when assessing what evidence will be accepted or what evidence will be rejected. Relevance, I believe, can be reflected in direct proportion to the size of the electorate being considered. For example, comparing a New Zealand electorate with one in Rarotonga; or alternatively comparing an electorate in Rarotonga with one in Manahiki.

In Rakahanga every one of the 176 voters will be known to each other, either very intimately or just casually. It is in that context that various witnesses gave evidence of the electioneering activities by both parties; of the intensity of the meetings barbecues and social events that were hold; and of the pressures on both parties to ensure that all registered voters did in fact vote. There is no doubt this latter - objective was achieved since the total Electoral Roll was 179 and 176 people voted. This is a clear indication of the intensity of the interest generated by this election, and is but one of the many factors which the Court must take into account in assessing the witnesses and the evidence they gave; and in assessing whether that evidence based on the balance of probabilities is of standard that the Petition can be upheld or rejected.

SUBMISSIONS ON BEHALF OF THE FIRST RESPONDENT

Mr Mitchell has presented detailed submissions which have been most helpful in identifying the issues and formulating the law which he says is applicable. For example, his skilful and reasoned presentation on the issue of employment highlights the difficulties facing the Court. At paragraph 2.3.2 he submitted as follows:

"It was very obvious that employment on Rakahanga, in common with all the islands of the Cook Islands, was an important electoral issue at the last general election. The First Respondent acknowledged in evidence that he had spelt out very clearly how he would achieve greater employment - with the object of having at least one person in each household employed.

To hold out hope of employment in a general way, in inducing someone to vote must be unobjectionable. What bribery means, in this context, is an offer to a particular person, with a corrupt motive, of a specific job. There is no evidence of that. At the least, your Honour would need to be satisfied to the required standard of proof that the discussions with the various witnesses relating to "a job" was not in the context of the policy of the party as outlined by Dr Robati in his evidence, but was a specific promise, made with a corrupt motive, to secure the person concerned a job, providing he or she voted for Dr Robati."

On the allegation of undue influence contained in the Petition those same submissions identify the serious conflict of evidence. At paragraph 2.5.2 and 2.5.3 it is submitted as follows:

"2.5.2 Without conceding that this ground falls separately under S.71 at all (rather, it seems a natural extension of paragraph (f) of the Petition), the First Respondent points out that the two person accused of this activity, denied it. That is, Temu Hagai and Danny Piho. They were unshaken in cross-examination - and in fact precise allegations of what was said, where, and when were never put to the witnesses in such cross-examination.

2.5.3 The evidence of this activity came from Nga Marsters, Toreka Repaio and Fonu Piniata. There is a head-on conflict in the evidence between these three witnesses on one hand, and Piho and Hagai on the other. It is perhaps significant that Piniata said that he recorded everything of significance in his diary. He admitted under cross-examination, however, that he had not recorded this aspect of the conversation in his diary."

CONCLUSION

I have evaluated the evidence presented in support of the Election Petition; I have recognised the evidence by way of denial from the witnesses called by and - on behalf of the First Respondent; and I have applied the standard of proof required for such a petition to succeed and acknowledged the higher level of the balance of probability.

The result is that I am in no doubt whatever that jobs were offered as distinct from generalised employment; and that undue influence was exerted in the form of threats of various kinds. I have no doubt that the intention was to influence those voters who gave evidence and that they were in fact so influenced.

There have been serious breaches of both S.69 and S.71 of the Electoral Act 1966 which have materially affected the electoral process and as a result have voided the election.

I therefore make the following determinations:

1. That the Petitioners have established serious breaches of Section 69 and Section 71 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 costs are reserved and if necessary Counsel may make submissions in writing in the first instance.

DILLON J