Hagai v Toka [2011] CKHC 2; Misc 113 of 2010 (1 February 2011)

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

MISC NO. 113/2010
[RAKAHANGA]

IN THE MATTER of the election of the Members of Parliament of the Cook Islands held on the 17th November 2010

AND

IN THE MATTER of Section 92 of the Electoral Act 2004

Apan>

IN THE MATTER of Sections 7(4) and 20(4) of the Electoral Act 2004

BETWEEN

TOKA HAGAI
Petitioner

AND

TAUNGA TOKA
First Respondent

AND

TAGGY TANGIMETUA
Second Respondent

AND

MARK TEREI SHORT
Third Respondent

Hearing: 1 February 2011
(Held in Rarotonga)

Counsel: Mr P Lynch for Petitioner
Mrs T Browne for First Respondent
Mr H Matysik for Second and Third Respondents

Judgment: 1 February 2011

ORAL JUDGMENT OF THE HON. WESTON CJ
T Browne, Browne Harvey & Associates, Avarua, Rarotonga
P Lynch, Paul Lynch Consulting Ltd, Ngatangiia Rarotonga
H Matysik, Little & Matysik PC, Maraerenga, Avarua, Rarotonga

[1] The General Election was held on 17 November 2010. The Fiest Rdent, Mr&# Mr Toka, was declaredsuccessfuessful candidate in the Rakahanga constituency. According to the Public Notice given on 25 November&#160 he red 30s. The Petitioner received 28 votes, a s, a diffedifference of two votes.

[3] The First Respondent lodged a counter-Petition on 15 December&#160 and raised aned another seven or so qualification objections. During the course of the hearing three of these were withdrawn. At the time of delivering this den I have not heard argument in relation to the counter-Peti-Petition. Counsel are agreed that I will give this decision first in relation to the Petition.

The law

[4] In deciding the Election Petition for Mangaia yesterday I dealt with some of the issues that are also alive before me today. During the course of argument yesterday, and in giving my decision, I referred to an earlier decision of the former Chief Justice: Kairua v Solomoana and Hagan,[1] and then a subsequent decision of David Williams J given in Akatapuria v Taripo & Ors.[2] A statement of the law given by the Chief Justice in Kairua v Solomoana and Hagan was adopted by Williams J.y decision yesterday I sa I said I found the ruling persuasive, and in terms of how I assessed the facts it was not necessary to with a reservation that I had in relation to the summary by the former Chief Justice.

[5] Prior to commencing the hearing today I mentioned that reservation to counsel in case it became relevant on the facts of this case. That reservation concerned the previous finding of this Court that unless the elector had the requisite purpose at the point of leaving the constituency the exception in s 7(6)(a)(ii) would not . Whi. While I appreciate that the statement of the law by the Chief Justice sets a very high standard, and necessarily so, I had a concern that there might be some instances, otherwise deserving, which would be cut out by such an approach. I gave two examples.

[6] The first concerned someone in the constituency of, say, Ngatangiia, who goes into Avarua for the day fully intending to return home that evening. They have an accident while in town and are then airlifted to New Zealand for a period in excess of three months during which they receive medical treatment. I was concerned that a strict application of the test in Kairua would exclude that person from the effect of s 7(6)(a)(ii).

[7] The second example I gave concerned someone leaving an outer island, and I gave as an example an intention to come to Te Maeve Nui for a week or two. Again, while in Rarotonga, this person suffers an accident and is airlifted to New Zealand for treatment. It seemed to me that a strict application of the test in Kairua would exclude such a person from the effect of s 7(6).
[8] Both counsel have addressed me in relation to this proposition. Mrs Browne was inclined to accept that a strict application o test in Kairua might exclude some otherwise entitled electors. By coBy contrast Mr Lynch was inclined to d thed the strict words of the Kairua. Mr Matysik took a position somewhere in the middle odle of the two, suggesting that it was a matter to be assessed on the facts in each case.

[9] Mr Lynch raised id point, in t in that if the test is set too low, there may be a flood-gates effect with the result that the Court would be overwhelmed by Election Petitions aallenges. The concern must be acknowledged but, at the same same time, we must recognise the objections procedure set out in the Act in s 24 et seq. If there we be w be wide-ranging abuses of the exceptions allowed in s 7(6) it would be possible tble to address these prior to the Election through that procedure.

[10] Having that, I think the floodgates concern is overstated. I have have no doubt that the statutory threshold in s 7(6)(a)(ii) is a hig. It wiIt will not be satisfied in cases of minor ailments. That is because it will be difficult in those circumstances to show tinuous purpose of obtaining medical treatment for a period in excess of three months. It i It is highly unlikely that an elector will be able to travel to New Zealand for family purposes, visit a GP once or twice while in New Zealand, and be able to satisfy the Court that they fall within the statutory exemption.

[11] Notwithstanding this discussion, I do not believe I need to resolve the issue in this case. On the findings of fact that I will shortly make, the electors did have the statutory purpose at the point of departure from their constituencies. Nevertheless, the issue has exercised the Court's time and there may well be cases in the future where it arises fairly and squarely. For reasons I will now give I do not believe this is one of them.

The quality of the evidence

[12] Under s 99 of the Act, the Court ii entitled to receive such evidence as in its opinion may assist it to deal effectively with the case notwithstanding that the ece may not otherwise be admissible in the Court. This, I think, is a very realistic provisiovision because it acknowledges that an Election Petition is brought on in circumstances of urgency and where it may be difficult to find evidence of a high quality in all cases. The Act allows a liberal approach to evidence. A case such as the present illustrates the desirability of that provision. Much of the evidence before me was strictly inadmissible. Much of the cross-examination traversed issues upon which the relevant witnesses could not be said to have knowledge or indeed expertise (some of the witnesses were treated as having a de facto expertise). I do not say that in a critical way; simply to register the reality that the parties found themselves operating within.

[13] Part of the difficulty in assessing the medical treatment exception in the Act is that inevitably some assessment needs to be made of medical information and records. The Court, however, is at something of a disadvantage because it is not an expert body. It would be rare that the parties would have time to find sufficient medical expertise in order to produce expert evidence to the Court in the form of oral evidence from an expert. I am not suggesting that they should do this. The Act (in the form of s 99) contemplates that evidence of a different sort might be received. This, though, illustrates that the Court is to make a pragmatic assessment on the balance of probabilities.
span style='font-family: Times New Roman; '>[14] Mrs B160;Brownenot call any oray oral evidence at the hearing. She instead relied upon a series of affidavits and medical records. She produced affidavits from Mr and Mrs Rubeith medical certificatticattached to them. There was awas also evidence from the nurse practitioner in Rakahanga, and that was produced both by affidavit and byers from her. Both of Mr and Mrs Rubena are in New Zeaw Zealand and both are still receiving medical treatment (on the materials that I have seen). I was advised they were not able to be in Rarotonga and I accept that that was the case. Mr Timeteo's cas pred by referreference tnce to medical records and evidence form the nurse practitioner. Mr Timetein New Zealand. ThereThere o evidence from him by way of affidavit or otherwise.

[15] This affi evidence and other evidence was met by the Petitioner in a in an affidavit of Mr Takai dated 17;December&#16r 2010. At the timewearing thng the affidavit Mr Taas the Mayor of Rakahangahanga, although he has since lost that position. Mr Lyncled M0;Takai torm his ahis affidavit and make himself self available for cross-examination. Mrs& Mrs Browne croamined Mr Ta60;Takai iation to tidencidence given in his affidavit. In that sense, then, his evidence was of a mo a more orthodox character than that relien by 160;Browne. That is because the deponent was call called for cross-examination and was then then cross-examined.

[16] Having said that, I find that Mr Takai's evideas subject to t to limitations. First, there are a number of areas where he by necessity resorted to speculation because the matters were not directly within hiwledge or expertise. Secondly, I am bound to say that in soin some respects I found that Mr Takaoured his evidence as i as if he were acting as an advocate for the Petitioner. Therefore, I find that wherever is a conflict between his evidence and that of trst Respondent, I prefer that of the First Respondent. Mr&# Mr H the Petitioner, gave evid evidence. It was of a fairly limited dimension. I found him an entirely straightforward witness but I do not gain much assistance from his evidence because it reallynot go to the heart of the the matters for decision.

[17] So drawing the various threads together, I am left in the position where the overall quality of the evidence is not as high as might otherwise be desirable. Nevertheless, I am bound to make of it what I can and s 99 points me in the directirection. Having considered all the evidence I find the written letters from Dr Tangaroa he materials from from the nurse practitioner to be of the assistance.

Mr and Mrs Rubena

[18] Both Mr and Mrs Rubena left the Island of Rakahanga on 23 July 2010 and they hote nturned rned since then. I am satisfied that they did leave the Island for medical treatment in terms of s 7(6)(a)(ii).160;Lmade ssionssions to the contrary, which I will shortly address. In making this asis assessmsessment I have relied upon the letters atd to Mr Rubena's affidavit, partrlylarly the second one dated 16 December 2060;2010. I have alsord tord to what the nurse practitioner says. While Mr Rubena's avit is not regardegarded by me as evidence to be accepted without question, I have beeluenc paragraphs 3, 4 and 11 where he makes it clear tear that ihat in his view of it he left Rakahanga to seek medical treatment for illnesses that both he and his wife believed they suffered. The fact that they then learned further details about the nature of those illnesses does not in any way mean that they did not leave Rakahanga for the original purpose of seeking medical treatment.

[19] A number of matters were raised by way of argument against the conclusion that Mr and Mrs Rubena left for medical reasons. One of these concerned the role of the Government Representative, but in the final analysis both counsel agreed that that was not material. The most significant issue concerned an argument that Mr and Mrs Rubena left Rarotonga to attend a child's birthday party and then, in February of this year, Mr Rubena's 60th birthday pa

[20] I am prepared to accept that Mr and Mrs Rubena did attend hild's birthday party and have an intention also of attending Mr Rubena's 60th birthdarthday party. I do not think that in any way derogates from my conclusion that the purpose that Mr and Mrs Rubena had when they left Rakahanga was to undertake medical trnt. I accept there can be difficult issues of multiple purp purposes, but I was left with an overwhelming sense that Mr and Mrs Rubena left Rakahanga to obtain medical treatment. The fact that both are now found to be suffering serious ailments strongly points to them having had such a purpose from the outset.

[21] In setting out the materials above I have not expressly addressed those matters supporting Mrs Rubena's I have had regardegard to them in the same way as I have had regard to those supporting Mr Rube and I have generally tlly tended to approach the two of th parallel. I have had regard to Mrs R's affidavitdavit and make make the same weighting of that as I have Mr Rubena's. I had regard tagraragraphs 4, 8 4, 8 and 11 of Mrs Rubena's affidavit.

Mr Timeteo

[22] I accept cept that Mr Timeteo is the same man red to in some of the medicmedical records as Mr Tetini. It seems tha passpoassport name is Mr Tetinihe normally goes e na e name referred to in the Petition. I found Mr Timeteo's case more difficult than that that of Mr and Mrs Rubena. I am not assisy thence of an affidavfidavit from Mr Timealthough thah that by i by itself is not fatal.

[23] A significnificant difference between the case of Mr Timeteo and that of Mr and Mrs Rubena is the statement made on several occasions that Mr Timeteurpose was to live peve permanently in New Zealand. For example, this is referred to i mediecords of the Ministry of Health. There is an Intn International Patient Referral Form date dated 27 September 2010 and that says tha#160;#160;Timeteo's intention was to live permanently in New Zealand.

Mr Tupou

[25] At5] At the outset there was some uncertainty as to the dates during which Mr Tupou was absent from Raka.anga. Initially the amended Petition was silent on the point. Mr Lynch then received instructions that the correct date was 24 May 2010, but it is now common ground that he le 31 May 20t . Ialso clso common gron ground that he returned to Rakahanga on 31 August 2010. In these circumsta M0s, M0;Lyngued Mr&#1pou was absent from the partiparticularcular constituency for a continuous perioderiod exce exceeding three months and thus fell with#160;of the Act. He then submitted there was no savingaving expl explanation for Mr Tupou's absence aerefore hire his vote should be disallowed.

[26] The issue for determination is whether absence as bn 31 May 2010 and 31 August;2010 is fors for a pr a period exceeding three months. Mr Matysik red me to the defindefinition of 'month'

Conclusion

[27] The conclusion of my factual assessments above means that the Petition is upheld in one respect. That is the vote of Mr Timeteo. I do not know how he voted but his vote should be not counted as part of the outcome of the Election. As the difference between the two candidates was two votes it seems to me, therefore, unlikely that the removal is vote will make any diffedifference to the outcome of the Election.

[28] Having got to this point in my decision I asked Mrs Brownt she wanted to do wito with the counter-Petition. In light of my conclusions she indicated she did not wish to proceed with it and it was to be treated as withdrawn.

Costs

[29] Costs are reserved.

Weston CJ

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[1] Kairua v Solomoana and Hagan High Court Rarotonga, OA 14/2004, 2 Augus0;2004, Greig CJ.0;CJ.
[2] Akatapuria v Taripo & Orsspan> H '> HC Rarotonga, Misc 55/04, 13&#160st 2004,2004, David Williams J.