Baxter v Maoate [2006] CKHC 10; Misc 81 of 2006 (1 November 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(ELECTORAL COURT)

MISC. NO. 81/06

IN THE MATTER of the Cook Islands
Electoral Act 2004 and the
General Elections held on
26 September 2006

BETWEEN

JOHN BAXTER
of Aitutaki, businessman and unsuccessful candidate for
election in the Amuri Ureia Constituency
Petitioner

AND

MR TEREPAI (JUNIOR)
MAOATE
of Aitutaki, successful candidate for election in the
Amuri Ureia Constituency
Respondent

Counsel : Mr N George for Petitioner
(assisted by Law Clerk Mr B George)
Mr M Mitchell for Respondent

Date of Hearing: 31 October and 1 November 2006
Date of Decision: 1 November 2006

DECISION OF WILLIAMS CJ

This is a petition brought by Mr John Baxter, Petitioner and Mr Terepai Junior Maoate, Respondent.

It is an oral judgment and I give it now rather than reserving because it is desirable since my mind is clear on the outcome that I should deliver the judgment.

1. Significant efforts have been made the Judiciary to deal with these Petitions as soon as possible and it would be unhelpful to delay while I write a more refined Judgment. However, I want to say that I reserve the right to add to what I am about to say, especially in the case of the legal principles, I am not going to take time to read them out but I will insert them in the Judgment. There may be corrections and minor additions to be made to the facts and narrative.

2. The Petition relates to the recent General Election on 26 September where in the Amuri Ureia electorate the outcome was that the sitting candidate the Respondent was re-elected. The result was 214 votes for the Respondent and 164 for the Petitioner.

3. I begin by describing the background of the Respondent that is relevant to the allegation of bribery made here. He was elected in 2004 in this constituency. His father is a senior Cabinet Minister and prior to the dissolution of Parliament as I understand, was the Deputy Prime Minister.

4. The evidence establishes that there is in the Maoate family a long-standing tradition of public service and of charitable giving. This of course is a splendid tradition and it is to be encouraged but it is necessary for me to stress at the outset that such an admirable tradition establishes no right to ignore the electoral laws about bribery and corruption and treating. I can take the tradition into account insofar as it is argued and if it is established that it was a motivating factor but of course if they are found to be breaches of the electoral law, it is no defence to say that there is an established tradition in the family of the kind that I have mentioned.

5. The setting in this case and why I mentioned the Maoate family is because all of the allegations in the Petition which I will come in a moment, are resisted on the basis that they were charitable gifts or simple outright gifts to friends, family, local residents.

6. Mr Mitchell referred to the passage in Vol. 14 of Halsburys Laws of England, Third Edition, page 217 which says in part:

"bona fide charity has always been allowed, on the other hand, what we call charitable gifts may be a merely auspicious and subtle form of bribery. The evidence of an election is an important factor if we take into consideration and decide whether a particular act of charity amounts to bribery. Charitable desire may be unobjectionable so long as there is no elections in prospect. But if an election becomes imminent, the danger of the gift being regarded as bribery is increased. It has been said that charity at election times ought to be kept in the background by politicians".

and that is a citation to the Wigan case which Mr George mentioned and which I set out in my judgment.

7. Halsbury went on to say:

"that the question is one of degree, an isolated small donation on the occasion of a birth may not be bribery. There are such gifts on an extensive scale will need to be inference that they were given to influence voters."

8. Then further on down it says:

"in order to constitute the effects of bribery, it does not matter how long before an election the bribe given is given provided that the bribe is operative at the time of the election. Time is however material in considering the question of evidence. It is obvious that where a considerable time lapses between the bribe and

the election the difficulty of proving bribery much increases.If the act of bribery is committed shortly before the poll, the act will be assumed to be bribery until the contrary is shown If the act of bribery is committed after the voter has voted,

it must be shown that it was done corruptly and for this purpose it is important to see whether it has been done in the pursuance of an antecedent promise."

9. The Court of Appeal recently made similar comments about the importance of the timing in the Wigmore v Matapo case. (In my Judgment I will reproduce what they said). Clearly the authority is to the effect that politicians and Ministers should be particularly careful of their behaviour during the election period.

Grounds of the Petition

10. There were five grounds for the Petition, namely:

(1). That on Saturday the 23rd of September 2006 in Aitutaki Terepai (Junior) Maoate, the successful candidate representing the Democratic Party in the Amuri Ureia Consituency directly gave to Ngeretupuna Taiava, an elector in the Amuri Ureia Constituency, cash to the value of between $5.00 to $10.00 in order to induce the elector to vote for him.

Section 88(a) of the Electoral Act 2004.

(2). That during the month of September 2006 in Aitutaki about 3 weeks before the General Election on September the 26th, Terepai (Junior) Maoate, the successful candidate representing the Democratic Party in the Amuri Ureia Constituency directly or indirectly offered to any elector namely Vainemoepai Taokai, an elector in the Amuri Ureia Constuency, valuable consideration, namely the free renovations of her house in order to induce the elector to vote for him.

Section 88(a) of the Electoral Act 2004

(3). That on or about the first week of September 2006 at the Rarotonga International Airport, Domestic terminal, Terepai (Junior) Maoate, the success candidate representing the Democratic Party in the Amuri Ureia Constituency gave Ake Oti, an elector in the Amuri Ureia Constituency, the sum of $20.00 cash in order to induce the elector to vote for him.

Section 88(a) of the Electoral Act 2004

(4). That in the month of September 2006, in Aitutaki about 2 weeks before election day September the 26th, Terepai (Junior) Maoate, being a candidate at any election in the Amuri Ureia Constituency by himself during the election campaign period directly gave food namely one large tuna and a piece of frozen wahoo to any peson who is an elector in the Amuri Ureia Constituency, namely Lawrence Williams –

(a). for the purpose of corruptly influencing that person to vote (for him) or

(b). for the purpose of procuring himself to be elected.

Section 89 Electoral Act 2004

(5). That on the 17th of September 2006 in Aitutaki, Terepai (Junior) Maoate being a candidate at any election in the Amuri Ureia Constituency, by himself, during the election campaign period directly gave food namely, a tray of bread and pai bread to any person who is an elector in the Amuri Ureia Constituency namely Taia Manuela and Kaitai Tutai

(a). for the purpose of corruptly influencing that person to vote (for him) or

(b). for the purpose of procuring himself to be elected.

Section 89 Electoral Act 2004

11. Before considering the evidence in relation to each, it is appropriate to mention some characteristics which apply to all of them.

12. First of all, there is no evidence that when Mr Maoate made the gift that is alleged to have been given for the purposes of wrongly inducing the elector to vote for him. There was no evidence that there was any talk of voting. In other words, in each particular case, this was to George, the topic of whether the recipient should vote for Mr Maoate or his party was never raised.

13. Secondly, most, if not all of the recipients appear to have been either elderly people with some form of disability or some form of problem with the sole exception being a young woman Mrs Ake Oti, who was the recipient of a gift on the birth of her baby and the Tutai family, the couple who I would say were maybe in their 40s to whom the tray of bread was given. But three of the five involved elderly people in need of some kind or another, that is the second common feature.

14. The third common feature is that in each case the Respondent in his evidence has asserted that they were gifts in the place of things that were given which is every case except number 2 and that they were given with no set motive because of a combination of a tradition in the family to look after people in need and because of a sense of duty arising out of his more recent responsibilities but much more of the former than the latter.

15. The final mater is that no case where money changed hands was the amount of any significance, even in the Cook Islands setting. So the case if far different from some of the notable bribery and corruption cases that have been heard in the Cook Islands over the years. As Mr Mitchell rightly acknowledged, that is not to say that the allegations are not serious or that they should not take it lightly the amounts involved are but one factor considering the overall question of whether offences have been committed.

16. I deal now with some of the evidence which was given on each ground.

17. The first allegation relates to Mr Ngere Taiava and it is acknowledged that although the petition alleges a gift of $5-$10, it was a $5 sum that was handed over. The circumstances were that Mr Taiava is an elderly blind man, an old age pensioner. He has been known to Mr Maoate for many years and I will come back to that in a minute. They met some time in September not long before the election. In fact if the date is correct, it is very shortly before the election, 3 days before the election.

18. And the circumstances were that in the course of the discussion Ngere said to Mr Maoate that he had been disappointed recently because he had wanted to go to a meeting at the Cook Islands Party headquarters and someone was supposed to pick him up but they did not do so. In the course of the discussion he asked whether there was a, for confirmation, that there was a Democratic Party meeting on that evening.

19. Mr Maoate confirmed that there was such a meeting. He pointed out that all attendees would be required to pay for the food that would be supplied at the meeting. Mr Maoate knowing of this man’s generally prepotenious status gave him $5.00, nothing was said about voting.

20. The circumstances that had led to this discussion were that as was apparently quite often the case, Mr Maoate when he saw Mr Taiava walking home, offered him a ride. He had offered him a ride on many previous occasions because he knew that there were difficulties with his elderly blind man finding his way home. That was the only evidence offered on ground one.

21. In cross examination he confirmed that he had not been asked to vote. There was no difference between the two as to what had been said or what had happened. However, he did say during cross examination that there were family connections between them. His phrase was "it is the same grandfather line" and he acknowledged that they had known each other for a long time and that it was a habit of Mr Maoate from time to time to give him food and money. He said he has always looked after him.

22. Mr Maoate came to give evidence. He explained that he had known Mr Taiava since the early 1970s-80s when Mr Maoate came back to Aitutaki in 1983 he met him again and socialized with him occasionally and he said that since 1983 till the present, he has virtually given him money and food. He said he had a soft spot for handicap people, especially old people and he went on to describe how he had often given him goods when he had come to his store which he owns in Aitutaki, Maina Traders. In this respect he said that if he saw him in the store looking to buy things, he would ask him what he wanted and having supplied him with his needs, he would tell the staff to give him the food, whatever he wanted and he would direct that the charges should be entered up against his wife’s account. It is not appropriate for me to explore the subtle question of why his wife ended up paying for these things, that is an irrelevancy.

23. There were other witnesses, namely, Ms Emi Tanga, who works at the Maina Traders store, and in addition Manea Paiti, both young women who worked there. She confirmed in every respect what Mr Maoate had said about his long-standing support for Mr Taiava. The evidence in my view established that over the years there have been numerous occasions, very frequent occasions where this kind of generosity has been extended by Mr Maoate to him.

24. It is appropriate at this stage to say that in approaching the question of whether any offences have been committed, I have had recourse to the memorandum issued to all counsel by Mr McFadzien which contains all the relevant cases. In my judgment I will refer to relevant cases on bribery and to matters on burden of proof and so on which both counsel have mentioned. Taking into account all those principles, I need to approach this evidence to decide whether it has been established that there was an act of bribery under s. 88(a) in this regard.

25. Before giving my ruling on that I should say two things briefly about the legal position. First, as I pointed out to Mr George in his closing, the Petitioner needs only to establish that one of the motivating factors was a deliberate attempt to induce the elector to vote for him.

26. Contrary to what Mr George said, it is not necessary for him to establish that lawful intention to use was the dominant intention. Putting it round the other way, it was established to the record standing that one of the motivating factors was to induce the elector vote. That will sustain the allegation.

27. Taking into account all of the evidence that was put before me and the long standing tradition and past support of this particular individual by Mr Maoate where friendship and family connections, I find that the ground has not been made out. In saying that, and this applies to all of the grounds I remark that I listened carefully to the evidence of Mr Maoate, I found him a completely truthful witness, indeed, an impressive witness. He had where there is a dispute on the facts, against, that is a case I will mention in a moment, I look at his evidence with very considerable weight and there is no conflict between the parties here as to what actually happened and I accept as truthful the evidence of Mr Maoate, that he was motivated by nothing other than his long-standing commitment to this man and all the reasons I have traversed already. In my view, ground 1 fails completely.

28. I come now to ground 2 which is a slightly different matter because what is contended here is that there is a breach of s. 88(a) because in relation to Mrs Tokai, a promise was made to fix the roof after the election so no money changed hands, no goods were provided.

29. The evidence of Mrs Tokai was that she is a an elderly person living in a house which has very considerable problems including rotting timber and extensive leaking. I should mention that in her evidence she described Mr Maoate Jnr as a good man in the village. There was no dispute between the parties as to what happened.

30. Mr Maoate had been visiting Mr Tokai’s sister in law who lives nearby. The sister in law had said you need to help Mrs Tokai because I have been there recently and seen leaks in the roof and buckets to try and catch the leaks so would you please go next door and help this 76 year old lady with that problem. Mr Maoate had said that he would do so and he went next door and had a discussion about the leaking problem. He advised that it was impermissible for him to arrange any government assistance during the election period. He was sympathetic to her situation however he said that after the election he considered that he would be able to help because the government had available funds. She said that she terminated the discussion by saying "well, forget about it."

31. It was suggested that she made that rather dismissal remark because she had deduced that his offer of assistance had a political motivation. That was denied. Mr Maoate confirmed her account and once again there was no real disagreement as to what had happened.

32. He pointed out in his evidence that he had known her since the 1970s. They had known each other because her niece was one of the members of the dance team that he had formed in 2001, had been a couple of trips overseas and he said that his actions that day in deciding to go and speak to her were motivated by that background but even more by his responsibility to look after old people in the electorate, that he always tried to see the old people and keep in touch with them and offer what assistance he could.

33. He explained that he had said to both of the women on the day that he could not do anything during the election, he made that quite clear and strongly denied that there was any political motivation. He said he had always taken an interest in helping people with their housing and there was evidence from three people who, namely Mrs Natua, Mrs Williams and Mrs George who all confirmed that Mr Maoate was accustomed to trying to assist elderly people with housing problems, either as a voluntary matter or as an Member of Parliament, he had been involved in the housing work parties, not just within the electorate but around the island. The arrangement usually was that the owner would provide the materials, the cases were, there was no government involvement and Mr Maoate was often leader of the workers.

34. Looking at the question whether an offence has been established under s. 88(a), I find the evidence is insufficient to sustain the allegation. I note in particular the way in which Mr Maoate resisted the idea of helping during the election period and in my view that strongly demonstrates that he had no political motivations; first in undertaking the discussion and secondly in signifying that he would only become involved and seek to assist after the election.

35. The third allegation relates to a meeting at the Rarotonga airport in September of this year when Mr Maoate gave $20.00 in cash to a young mother, Mrs Ake Oti. He said he gave it to her either for her to buy nappies for the baby or to put in the baby’s bank account. Ms Oti gave evidence as to their meeting. As with all the others, she said, on the occasion in question there was no talk of voting. She said she was "surprised he gave me the money." She acknowledged that in discussion he had explained that he gave money to mother’s who gave birth.

36. Mr Maoate in his evidence said that over the years he had made similar gifts to perhaps 20 such mothers. He helped more than 10 of them in the last 5 years. As to his prior relationship or knowledge of this young lady, he said that her partner works for Mr Baxter who was the opposition candidate.

37. He said it was a spontaneous gesture. He began by asking her whether she had had the baby. He said it was part of a family tradition. He said that Oti was living in one of his houses, the Air Rarotonga building is in front of the house and that the partner to Ake is a relation of his, they usually work together. The father is a social friend, they have played rugby together, been on trips to New Zealand and he has treated them as family. He said they were living free in his house at the time. Against the background of his established tradition which his wife confirmed, I did not find that there was any improper political motives in this gift.

38. As to the question of why it was cash, it naturally arouses suspicion. His wife said that her view was understandably he gave cash, in the usual course, she would have been deputed to go to the shops to buy the nappies. Like many men he was not accustomed to doing that, that was her explanation as to why cash had been given. I find it an acceptable explanation. So once again I find that the petition is not made out ground 3.

39. I advance to the treating allegations which first involved gifts of "one large tuna and a piece of frozen wahoo to Lawrence Williams, allegedly in September 2006. There was a great deal of evidence about the fishing schedules of the Maoate family and the evidenced established beyond any question of doubt that there was a long-standing tradition that where members of the family had a successful catch, and especially a large catch, they would distribute it to neighbours and others on the island. The evidences also established that on may previous occasions Mr Williams and been the recipient of gifts of fish. Mr Williams’ evidence was that when Mr Maoate gave him the fish, he said "he caught a lot of fish and is going to give it away." Mr Williams said he thanked him and nothing else was said.

40. Mr Williams agreed that he had been given fish by Mr Maoate since 2004. The evidence of Mr Maoate however was that it went back a good deal further than that.

41. There is some evidence about the suggestion by Mr Williams that the Maoatea family was in a habit of throwing fish away and he said he complained about that. In my view that is a side issue which has little or nothing to do with the primary allegation.

42. In cross-examination Mr Williams acknowledged that he was closely related to Mr Maoate Jnr; that his house was opposite Mr Bob Maoate’s house, the brother of Junior Maoate and that Bob often gave him fish, so did another brother, Mr Peckham Maoate. So there was no dispute by Mr Williams that over the years lots of fish had been given by the Maoate family. It was confirmed by Mrs Walker one of his neighbours.

43. There was a fair deal of time spent on the question of whether in fact he had been given a large tuna and piece of frozen wahoo. The evidence of Mr Junior Maoate was that the gift came about because of the fact that on Monday the 7th of August this year he had caught a very large marlin weighing, according to the press report 208 kilograms as well as tuna, mahimahi, bonito and other fish, a total catch of about 300 kilograms. This was a regionally major event because it was the subject of a photograph in the Cook Islands News on the 8th of August. What Mr Junior Maoate said was that the proceeds of this large catch were distributed widely and that Lawrence Williams had been given a small fresh tuna and some fresh marlin.

44. Mr George wanted to, after a fair way through the evidence to amend the petition to take out the words "frozen wahoo." I disallowed the application because of its lateness and because it seem to me inappropriate to allow a petition to be amended as we ......... just to coincide with the evidence. I had earlier allowed several inconsequential amendments.

45. In truth there may not be much in the descriptions of fish except that to the extent that there is any issue between the accounts given by these people. I find that the gift was from the catch on Monday the 7th of August. In my view it is supportive of an innocent distribution of the fish because it was occasioned by this very large catch by Junior Maoate, a great number of people were the beneficiaries of this fish. If it had indeed been given later as a piece of frozen fish, that might deter the implication that it was not a spontaneous gesture following from the big catch on the 7th of August if the delivery had been frozen fish. Looking at all of the available evidence, I find that the allegation is not made out.

46. The final allegation which may be characterized as the weakest of all the cases. Mr George candidly admitted, conceded in his closing address which he deserves credit that all of these cases were borderline cases bearing the absence of any discussions about voting. He would need to persuade me to infer an improper and illegal motive.

47. In this particular incident as has been apparent in my judgment so far I have not found it possible to draw that that inference. In fact, the evidence is, in my view, and the same applies to ground 5, consistent with a innocent explanation and I do find in all cases that it was not politically motivated.

48. The allegation is as follows:

"That on the 17th of September Mr Maoate being a candidate directly gave food, namely, a tray of bread and pai bread to any person who is an elector in the Amuri Ureia Constituency namely Taia Manuela and Kaitai Tutai"

49. The evidence in support was given by Taia Manuela and she explained that her husband Kaitai and Mr Maoate had been friends and acquaintances for many years and they have developed a tradition where Mr Tutai was skilled hunter who caught wild pigs on the island, would exchange pork for groceries or food or other things given by Mr Maoate.

50. The evidence established beyond doubt that that was the tradition between the two of them who were closely acquainted and that on this particular occasion Mr Maoate Jnr came round to see whether any pigs had been shot recently and whether any pork was available. He brought with him some bread, six joined loaves and also some pai bread which is a sweet bread in a block, the estimated value of about $4.00. This was on a Sunday morning. She did not agree that it was a gift. She said, I thought it was to be an exchange. That, in her words, Kaitai would give the piece of pork and it would be an exchange.

51. As it turned out, although he had some pork a few days earlier he did not have any at the time. Mr Maoate gave the bread and in the ......... at some future time he would get some pork. Mrs Manuela confirmed that her husband and Junior are close friends.

52. Mr Maoate in his evidence confirmed that they were close friends. They used to go spear fishing and still friends today. He used to work for Mr Maoate and they still continue the tradition giving each other gifts, food for food and exchanges.

53. He said that as he left having given him the bread, he said "don’t forget the piece of pork." There was no discussion of politics.

54. In my judgment the evidence falls far short of establishing the requirements of s. 89 of the Electoral Act. In fact, I will go so far as to say that this was a frivolous allegation to contend that gift of bread. In those circumstances where on all sides it was agreed there had been a tradition of exchange and that in return for the bread, some pork would be given in the future.

55. In a setting where politics was not spoken and it was known to Mr Maoate that his friend was a full, to quote Mrs Manuela, "a full Demo" is just an impossible contention to sustain.

56. The consequence of my findings that the evidence is clear on each of these matters and my acceptance of the evidence of Mr Maoate that there was no corrupt intention and that was a proper and innocent explanation leads me to dismiss the petition.

57. As to the question of costs, it may be difficult to deal with that today because the Petitioner may not know what are the total costs. If that is the case I simply direct that the parties should endeavour to agree on costs, if they cannot agree on the amount of costs then the Respondent will lodge written submissions in support of the claim for costs but then 21 days from the date of my signed written judgment, thereafter the Petitioner will have 21 days to reply in writing, indicating the Respondents views as to the quantum of costs.

58. I have decided that the Respondent is entitled to costs so their submissions will be confined to the quantum of costs. The only matter which should be specifically addressed apart from quantum is the question whether in relation to Ground 5 there is justification for full indemnity costs because of what I have found to have been a frivolous and untenable allegation.

Chief Justice