(c) any occasional absence for any purpose, for a period not exceeding3 months.
[5] In short, s 7(4) provides that an elector is disqualified if absent from the Cook Islands or a particular constituency for a continuous
period exceeding three monthstion&7(6)(a)(ii) then then provides that an absence that otherwise is captured by s 7(60;7(4) does nont
as an a an absence if itor the purpose of receiving medical treatment.
[6] Both of the partiferred me to the decision of Williams J given in 2004:2004: Akatapuria v Taripo & Ors. At paragraph 3.3 of that decision his Honour set out an extract from the (then) recent decision of the then Chief Justice in Kairua v Solomoana and Hagan. Williams J referred to parhs [9], [1], [10] and [11] from the Chief Justice's decision, and I set those out below:
[9] ... The onus of response to the objection is on the elector objected to. The objector must respond within seven days of the notice
of this objection and satisfy the registrar of eligibility to be on the roll. On review, that onus must remain to satisfy the Court
that the elector is eligible to be on the roll.
[10] The real issue is the meaning and import of the subsection. On the one hand it is said that the meaning is that the absence must
be for the purpose of medical treatment and that takes effect from departure. It does not cover absence which occurs after some subsequent
event or diagnosis following departure and absence for other non-qualifying reasons. The contrary argument is that the absence may
begin when the medical treatment is required. That the clock steps, the time stops running during an absence when the purpose of
medical treatment intervenes and does not start again till that treatment ceases or four years elapses.
[11] The underlying reasons for this allowance of absence is that in the Cook Islands or in the outer islands there is an absence
of educational and medical facilities. Electors are compelled to travel away from the constituency for these purposes. The absence
is, in terms, for the purpose of medical treatment or education. A person who has gone for some other purpose does not remain absent
for medical purposes. The absence continues because of some event or diagnosis and for the reason or the benefit of medical treatment.
It is not then a continuous period of absence for the purpose of medical treatment but partly for some other purpose and thereafter
for medical reasons. I consider that the true meaning is that the absence to qualify for this special treatment must have the purpose,
at the outset and for the continuous period of it, of medical treatment. The contrary argument does not take account of the references
to continuity and to purpose which encapsulate the underlying intention and meaning of the provision.
Williams J respectfully agreed wit othe observations of the Chief Justice and adopted them in the case before him.
[7] This deci decision of the Chief Justice, together with that of Williams J, is trictly binding on thon this Court, but nevertheless
it is to be regarded as highly persuasive and, for myself, I do approach it in that way. On the other hand,s important to bear in
mind the context that the issues in s in the case before Williams J conceelectors who had lefd left for one purpose, not being a
purpose within the Act, but subsequently argued that they fell within the exceptions to the Act because were receiving medical treatment.
The situation before the the Court today is different.
[8] Mr Matyade the point in submisubmission that the key "purpose", insofar as s 7(6)(a)(ii) is concerned, is that of the elector. I agree. In effect, that must be a subjective purpose or purpose
analysed from the viewpoint of the elector. es not necessarily need to be a reasonable purpose. If we take the receiving of education
aion as an example, it cannot have been required in all cases that the elector follow a particular course of education, pass all
courses that are sat, or otherwise meet some standard that an objective bystander might require. What the Act focuses on is the purpose
of the elector to undertake education for a period not exceeding four years. Having said thatthe the elector's actions are unreasonable,
assessed objectively, that may be relevant to an assessment of the elector's purpose. The claimed course of education cannot be a
disguise for somer purpose.
[9] I believe a similar sort of approach should be taken in relation to medical treatment. The purpose with which the Act is concerned
is that of the elector in receiving medical treatment. Mr Matysik emphasised tt need need not be a formal referral and Mrs Browne
agreed with I also also agree. It is not necessary, therefore, that the person receive medical treatment as a result of a formal
referral by the Health Authority in the Colands. It can be a self-referral as well. The issue then isen is whether the person's continuous
absence is explained by their purpose of receiving medical treatment. As the Chief Justice in Kairua v Solomoana and Hagan recognised, there is an absence of educational and medical facilities in the Cook Islands, and especially the outer islands. Electors
can be compelled to travel away from their constituency for these reasons or they may choose to do so.
[10] I think it is useful now to explore the facts of the two challenges before reaching a final conclusion.
The facts: Mrs Tumarama
[11] I start with Mrs Tumarama. I am satisfied that at the time she left for New Zealand on 29 April  she had urpose oose of receiving
medical treatment. ThereThere was no other reason given for her departure for New Zealand. The folp appent on 1 Jun0;June 2010 is,y
opmnion, "medical treatment" within the contemplation of the Act. Mrs Tumarama had had an oper foon for breast cancer in 2008 and the hospital had asked for her
to have yearly check-ups following that operation. The appoin on 1 June 2010 was just sufh a w-up. -up. The trip to New Zealand was
paid for bfor by Mrs Tumas daughter who lives ines in New Zealand. I did not hear evidence directly from her, but Mrs Tum, and also
her husband, and, did give evidence that the tri paid for by the daughter and I accept that.
[12] When the trip to Naland was paid for a returneturn ticket was not purchased. Mr Lyubmitted that that was a as a sensible precaution
because it was not known what outcome there would be from the medical follow-up. I accept that. I also accept evidence from Mrs Tumarama
she cnot afford thrd the rehe return fare and that she was reliant on her daughter for that. Evidence was given that a return ticket
ot immediately purchased because money was being saved and a cheaper fare was being looked oked for once the money had been saved.
I accept that Mrs Tumarama woave returned to d to Mangaia earlier than she did if she could have purchased a ticket earlier.
[13] Mrs Browne argued that Mrs Tumas purpose to remain in n in New Zealand no longer fell within a purpose of medical treatment.
She submitted that that had passed, because the follow-up contion een successful and no problems had been discovereovered. Thd. Therefore,
Mrs Tumarama could haverned to d to Mangaia. However, Mrs Tumarama said she could not do so because she was then waiting to get the
money.
[14] This, to me, is the real issue in the the case of this elector. Did the fact that she remained in New Zealand following the
consultation on 1 J160;2010 take her outside side the words of s 7(6)(a)(ii)? I do elieve thve they did. I now explain why. First,
and although this is not a crucial point, I note that Mrs Tumarama did receive ml trel treatment on 19 ember 2010 shortly prior
to returning to Mangaia. On t On that occasion she received a further prescription for medication relevo her breast cancer. So there
was on-going medical treatmenatment during the relevant period.
[15] Secondly, and perhaps more importantly, I do not believe that Mrs Tumar purpose had changed. ged. She had come to New Zealand
for the purpose of receiving medical treatment and she wanted to go home as soon as she could. Her reasonnot going home was a lack
of money. But the underlying purp purpose for her being in New Zealand remained the same throughout.
[16] I put to Mrs Browne an example. Ts, if t if the Ministry had agreed to fund an elector but was slow in providing the money for
the return trip, and as a result the elector could not return to tnstituency, would that mean that the person fell outside thde the
exception in s 7(6)(a)(ii)? Mr0;Browne acce accepted that in such a case it could not be reasonably said that the purpose of the
elector had changed but she argued that it was not relevant t actual instance faced by this Court. For myself, however, ver, I think
there is some relevant similarity. Mrs Tumarama was readreturn to n to Mangaia but was not able to do so because she could not afford
the return trip. She had no other reason to remainccept that there may be cases where it is difficult to draw a bright line about
this sort oort of situation. It is a matter of fact and degree in each case, and in my assessment Mrs Tumarama dall within the exhe
exception given in s 7(6)(a)(ii). Therefore,lievelieve that her vote should count and I do not accept the argument in the Petition
to the contrary.
The facts: Mr Na
<
[17] I now address Mr Nga Mr Ngauora did notd not give evidence before me. The evidence is that he is in Rarotondertaking further
medical ical treatment in relation to the same problems that arose in 2010. I accept that Mr Ngauora left Mangaia arotonga on a self-referralerral
basis. I think there is no doubt that he went for the purpose of receiving medical treatment in relato urinary and prostate problems.
This is clear from the records of both the Mangaian and Rand Rarotongan Hospitals. Mr Ngauora n operation in Raro Rarotonga in relation
to his prostate on 29 June 2010. It seems he made a reasonably good recovery9 July  the medical recorrecords show that he was
fit to fly back to Mangaia when when he was ready to do so. It was suggestat hed be by the resident doctor on Mangaia. Mr&# Mr N160;Ngauora
did not n to M to Mangaia at t at that time. Mr Lynch emphasised the extfrot from the medical records of 9 July say Mr Ngauora could
reto Mangaia gaia "when he is ready".
[; '>[18] T18] There was evidence before the Court by way of an affidavit from Mr Ngauora's feeding son. I can give limited weight
only to that affidavit because the deponent was not made available for cross-examination. The affidavit refero Mr Ngauora remaining
in Rarotonga until October for convalescence and further medicaedical appointments. The medical records show that from July onwards
there was a period when Mr Ngauora's h appeared to be o be stable but, within a short while, further medical treatment in relation
to his urinary and prostate problems was mentioned. For example, on 23 September 2010 itsaid that uld not paot pass pass urine as
well as before, and on 28 Septemhe pain in his privatrivate parts was mentioned in thes. Itclear that he was having continued medical
treatment in relation to the matter ther that haat had taken him to Rarotonga in the firste. However, by 29 Octo;October
 it
seems eems he was well enough to travel and he returned to Mangaia. It now appears he has fallen ill again with the same problem.
[19] As far as I can tell from the records (and other evidence), Mr Ngauora had the purpose mincoming to Rarotonga for medical treatment
and thereafter he retained that purpose until he returned on 29 October. Therefore,nd that that he falls within the exception in
s 7(6)(a, and I di the Petitietitiotition in relation to him.
[20] Because I haveissed challenges raiseraised in the Petition, the Petition is now dismissed.
An alternative argument
[21] Mr Matysik raa further argumengument by reference to s 7(6)(c) of the Act, suing ting that reliance might be placed on such a
provision e case of someone who had originally had the intention of receiving medical treatment and hand had then finished that medical
treatmet nevertheless remained outd outside the constituency. He argued that such a further period of absence might then fall within
s 7(6)(c).
[22] I think there is some merit in that argument but as a result of the findings that I have already made, I do not need to make
a final ruling in relation to the argument and I do not do so.
Counter-Petition
[23] Following delivery of this decision I inquired of Mr Lynch er he wished to proceproceed and call evidence in relation to the
counter-Petition. He said he did not, as a result of the findings that I have made. He withdre counter-Petition.
Costs
[24] Costs are reserved.
Weston CJ
Akatapuria v Taripo & Ors HC Rarotonga, Misc 55/04, 13 Augus0;2004, David Williamsliams J.span style='font-sont-size: 10pt; ' class="footnote_reference">
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