Crocombe v Nicholas [2006] CKHC 9; MISC 84 of 2006 (27 October 2006)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

MISC. NO. 84/06

IN THE MATTER of Section 92
of the Electoral Act 2004

AND

IN THE MATTER of an election of Members of Parliament
held on the 26th day of September 2006

BETWEEN

SAM CROCOMBE
Of Avatiu
Petitioner

AND

ALBERT NICHOLAS
of Avatiu
First Respondent

AND

NOOAPII TEAREA of Rarotonga,
Deputy Chief Electoral Office
Second Respondent

Counsel : Mr M Mitchell for the Petitioner
Mr H Puna for First Respondent
Mr J Elikana for Second Respondent

Date of decision: 27 October 2006

DECISION OF WESTON J

[1] I am sorry it has taken so long. The problem was that two votes arising out of the counter-petition physically could not be, or two voting papers physically could not be located and that is the cause of the delay.

[2] The position we have got to is that those two have still not been located but the outcome is such that those two votes are not going to make any difference.

[3] Although considerable efforts are being made to find them, I have directed that I come back and declare the outcome on the basis that those two votes will not make the difference. The outcome does not change, the numbers change slightly. So, putting aside those two votes, Mr Nicholas has 288 and Mr Crocombe has 278. The two votes that emerge were in the cross-petition so it may have effect to that outcome if located but the scrutineers agreed with the obvious arithmetic the two were not going to make any ultimate difference to this so to cut a long story short I have come back and said we will deal with it now.

[4] So, I declare that Mr Nicholas is the winner of the Avatiu constituency. I will have to sign a certificate which I anticipate perhaps Mr Elikana the Electoral Office prepare the necessary certificate and submit it to me or perhaps if the Chief Justice is here next week, to him. I am not sure that I necessarily need to be the Judge that signs it off. But I apologize for the wait but for the reasons I have explained, there was good cause for it.

[5] Costs, the winner is Mr Nicholas, so he goes ahead and gives his memorandum and followed by Mr Crocombe in response, 14 days each way, is that workable?

Mr Mitchell: - Thank you Sir. There is one other matter, you may recall you made an order this morning that the position be ascertained as at the end of the hearing of the Petition as opposed to the counter petition.

Court: - Yes, thank you and I do have that. The Petition at the end of the Petition and all of the Petition votes were able to be counted was 284 to Mr Nicholas, 282 to Mr Crocombe and thank you Mr Mitchell, I think by this time of the day, I was a little tired and overlooked those figures. The scrutineers obviously have copies of these tally sheets anyway, thanks counsel.