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High Court of the Cook Islands |
IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT PUKAPUKA AND RAROTONGA
(ELECTORAL COURT)
MISC NO. 115/2010
[PUKAPUKA]
IN THE MATTER of Section 92 of the Electoral Act 2004
AND
IN THE MATTER of the election of the Member of Parliament of the Cook Islands held on Wednesday 17 Novembe0;201
BETWEEN
VAI PEUA
Petitioner
TEKII LAZARO
First Respondent
AND
TAGGY TANGIMETUA
Second Respondent
AND
MARK TEREI SHORT
Third Respondent
AND TEWOE LUKA
Fourth Respondent
Hearing: 14 February  (at Pukapuka)puka)
16 and 17 February 2011 (at Rarotonga)
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Counsel: Mrs Tne for Petitioner
Mr P Mr P Lynch for First Respondent
Mr H Matysik for Second, Third and Fourth Respondents
REASONS FOR JUDGMENT OF C NICHOLSON J
T Browne, wne, Browne Harvey & Associates, Avarua, Rarotonga
P Lynch, Paul Lynch Consulting Ltd, Ngatangiia Rarotonga
H Matysik, Little & Matysik PC, Maraerenga, Avarua, Rarotonga
Introduction
[1] I state my reasons for making the decisions and Orders in my Judgment of 17 February 2011.
[2 General eral Election was held on 17 November 2010. On 26&N160;ber 2160;2010 the first respondent, Tekii Lazaro, was declared as the successful candidate duly elected as Member of Parliament for the Pukapuka-Nassastitu He h votes. The petitioner, Tamaiti Vai Peui Peua, rea, received 84 votes, four votes less less. The other candidate, Tai Ravarua, received 77 votes. Mr Lazarod as a member of the the Cook Islands Party, Mr Peua as an Independend Mr&# Mr Ra as a member of thecraticratic Party.
[3] Mr  Peua filed an Election pon tion on 3 December 2010 n amended pen on 60;De60;December 201>
[4] In his amendemendemended petition Mr Peua stated three grounds. nds. First, that the votes of sevmed p shou disallowed because each was disqualified uned under tder the Electoral Act 2004 ("the Act" Act"). Secondly, that eight people were rd from the Roll without nott notice of such removal being given to each as required by the Act. Third, that Mr Lazaro committed al ac brib bribery and specific acts of bribery in relationation to three people.
[5] On 22 December 2010, Mr ro filed n of e of intention to oppose the amended petition and a counter-petition.
[6] In his counter petition Mraro s three grounds. First, that the votes of nine electors should be disallowed as eaas each wach was not qualified. Secondly, that Mr Peua was guilty of bribery in respect of three electors, that the Island Secretary was guilty of bribery and that two other people interfered with electors on the day of the Election.
[7] On 11 February 201 Lazaled an apan applicationation to strike out the amended petition on the grounds that it did not comply with the provisions of the Act, as it did not sp the f souLater that day Mr Peua filed a notice oice ofce of oppf opposition to that application, and an application to amend the amended petition by inclusion of a prayer stating the relief he sought.
[8] The hearing started at Pukapuka on Monday 14 Februa60;2011. Ten witnessenesses, including the fourth respondent, Ms Luka, gave oral evidence there. In addition, numerous affis and documents were submitted by the parties as evidence.
[9] At the start of thof the hearing both Mr Peua and Mrzaro rew the the grounds alleging voting by disqualified pied people, and Mr Peua amended the allegecifiecific acts of bribery late to only one person. Mr Lazaro di pursue his counteounter-petition in any respect.pect.
[10] The hearing resumed attonga on Wednesday 16 February. Mr   Lazaro and his wife oral eval evidence. Further documents were produced as evidence. Mrs Browne applied for furtherdamendment of the amended petition to plead that 86 people had bemoved from them the Eral Roll and that notice asce as required by the Act had not been given to any of these people.
Strike out application and amendment
[11] Mr Lynbmitted that the amendedended petition should be struck out as it did not comply with the requirements of s 92 of the Act, whiches:
:
92. Election petitions –
(1) Where any cand candidate ... [is] dissatisfied with the result of any election held in the constituency for which that cate is nominated ... [he] mhe] may, within seven days after the declaration of the results of the poll by the Chief Electoral Officer by petition filed in the Court demand an inquiry into the conduct of the election or any candidate or other person thereat.
....
(3) The petition shall be in Form 14 and shall be heard and determined before a Judge of the Court.
(4) The petition shall allege the specific grounds on which the complaint is founded, and no grounds other than those stated shall be investigated except by leave of the Court and upon reasonable notice being given, which leave may be given on such terms and conditions as the Court deems just.
[12] The relevant part of Form 14 as printed in the Second Schedule of the Act states:
Wherefore your petitioners pray that it may be determined:
| | That the said ................................... was not duly elected; and/or |
| | That the said election was void; and/or |
| | That ........................ was duly elected, and ought to have been so declared. |
[13] In R v Secretary of State for the Home Department, ex. Parte Jeyeanthan,[1] Lord Woolf said:[2]
... The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory is it usually assumed it can be safely ignored. If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect. The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as "shall" or "must" is used.
[14] Later in his Judgment Lord Woolf said:[3]
Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances.
[15] I this case I take into account that s 92(4) specifically grants leave to the Court to allow amendment of the grounds that Form 14 required to be stated in the petition. This indicates an intention exibility for the contents of the petition. Also, that s 93 of tt states that if t if t if a petitioner fails to comply with any Order for security for costs the Court shall dismiss the petition for want of prosecution. The absence of such a terminating san for failure to comply wity with the Form 14 requirements and tknowlenowledgement in s 92(4) ofibility for the cone contents of the petition indicate to me that the legislature did not intend that failure to strictly comply with the Form 14 requiremeeant the petition was was a nullity.
[16] Furthermore,more, the three types of relief indicated in Form 14 are those which itioner oner is very likely to seek and pleading of them involves little more than the insertion of the names of the successful date and the petitioner in the two blank spaces provided.
[17] It would have been been obvious from the time that Mr Piled his petition that thet the relief he was seeking was to have himself replace Mr Lazaro as tccessful candidandidate andnot, to have the election found to be void in order to give him another chance to be electelected. In my view it would not be realist find that Mr Lazaro had been prced in hiin his opposipposition to the petition by the failure of Mr Peua to state the obvious grounds of relief that he was seeking.
[18] I considered that in order to do what was just in all the circumstances, it ppropriate to allow amendment by adding the prayer for relief and to decide the petition onon on its merits. I therefore granted Mr Peua's application to amend the amended petition by adding a prayer for relief and dismissed Mr Lazaro's application to strike out the amended petition.
Further amendment
[19] Mrs Bradvised that the amended nded petition only challenged the removal of eight people from the Roll because she understood from the information given that only eight people had been removed and n not given to each of them them of their removal. However, in her affidavit of 9 February 2he Chlef Electoral Officerficer, Ms TTangimetua, annexed a list list written by Ms Luka, the RegistraElectors tors for the constituency of Pukapuka-Na whicted 8ctors to be removed from the Pukapuka-Nuka-Nassauassau Electoral Roll. Ms Tangimetua stua said that she deleted the names of tho people from the main Roll Roll before it closed on 5 October 20here o s no indication inon in Ms Tanua's affidavat notice ofce of removal had not been sent to each of these 86 e 86 people. However, in cross-examination at Pukapuka on 14 February;2011#160;said that that noat notice of removal had not been given toen to any of those 86 people. Mrs Browne shat this was the fihe first she was aware of this and she accordingly sought an amendment of the amended petition to i to increase the number of people who had removed from the Roll without notice to 86.
[20] [20] Because I considered that the amended petition should be decided on its merits, I decided that it was in the interests of justice to allow the amendment and I did so.
Bribery
[21] Mr Peua alleged that M0;Lazaroazaro committed acts of bribery by offering and giving free massages and free Maori medicine to Tearo Tinomana and other electors.
[22] Tearo Tinomana is 24 and has lived in Pka all his life. He is a fi a fisherman. He deposed that on Wednesday, 3 November 2010, Mr&Laza;o visited thed the house where he and his girlfriend and children live. He said that Mr Lazaro them to be patient aent as he did not have anything or to giem. However, if he succeeded in the elections he s he wouldwould help them. He asked if he wanted to be massaged by his wife, Dressersaid that she was good at m at massaging and that if he wanted to he could go to their house for a massage.
[23] He knew that Mr Lazaro was the Cook Is Part Party candidate at the coming Election, but did not know him personally. He was not sick at the time and there was no reason why he should have a massage. He thought that the only reason that Mr Lazaro asked him to getssagassage from his wife was to persuade him to vote for him.
[24] He knew that Mr Lazad his wife were stayinaayina house about 150 metres from where hed. Afte After Mr Lazaro's visitnd his his ghis girlfriend tried hard to avoid Mraro, and sometimes they hid if they thought he was coming ting to see them.
[25] On Saturday morning, 6 November 2010, he wathe bwach waiting for his fhis father-in-law to go fishing. Mr and Mrs Lazaro approached him and Mr L said that they hen waitinaiting for him to go over and get a massage. He asked him again if he would go to his hhis house so that his wife could massage he sait by that time he was aware that Mr Lazaro haro had apad approached other people asking them to go to his wife for a massage.
[26] He got a sore stomach. After he came back from fishing on Tuesday 9 November 2he we t to the house wMr&#wMr Lazaro taying.ying. He laid laid on a bed inside the house and Mrs Lazaarted massaging him. Whm. While she was massagingtalkehim. old him to be careful and not to vote fote for Mror Mr Ravarua becauswas a drunk runk runk and he did not have a good standing i community. She said that hhat he would not make a good leader. Mr Tia said that she also told told him that Mr Peua was noood man anated Pted Pukapukkapuka and Nassau as if they were pig-pens. She told him not to be silly and that he should vote for her hd.
[27] He said taid that Mr Lazame into the room while hile he was being massaged andd and would have heard what Mrs Lazaro saihim.
[2r> [28] Mr Tinosaid that before he lefe left, Mrs Lazaro asked him to return on Thursday, 11 Nov, for another me. He dide did not go back.
[29] Mr Lazaro deposed thatr fter ater an absence of about 20 years he and hfe ar in Pukapuka from Rarotonga on 26 October 2010 leading up to p to the Election. He saie said that his wife had a gift of providierapemassage and her uher unique method included drinking a mixture of eggs and limes. She brougbrought a stock of eggs and limes to Pukapuka for this. She gave many people in Pukapuka free Maori massages, both before and after the Election.
[30] Mr Lazaro that on Saturday 6&#y 6 Novembe and his wife went tent to the beach to get some fish and there met Mr Tinomana for thst time. Tidy did not know who he was at the start. He asked Mr Tinomana ws fathefather wasr was as then they could work out who Mr&#inomana's family was. He thought that Mr Tinomana knew that he was the Cook Islands Pads Party candidate. They did not talk poli
[31] Mr Laza;Lazaro said thfew days days later on visits to homes to campaign people he visited the house of Charlie Fe who is a supporter of Mr&f Mr Peua.160;Tinomana and his ghis girlfriend were staying in one of Mr Fe's houses. He said that ahat although he believed that they were probably also supporters of Mr Peua, he visited them more out of courtesy than to activelpaign them. He said he was welcomed into the house and spok spoke about his running as a candidate in the Election. He said that Mr&#inomana pretended that he would vote for him but he did notd not really believe him. He said that after he finished his campaign chat Mr Tinomana mentioned thatstom stomach was sore. He felt sorry for him and told him that his wife had a gift of Maori medical massage and that if he wanted to he could visit her and get a massage from her. He said that he never mentioned anything about getting a Maori massage from his wife in return for voting for him.
[32] Mr Lazaro that Mr Tinomannomana visited hie aife at their home and had a massage in the lounge. There were other people present with him on the veranda. He said that did iscuss the giving of a Maori massage by his wife wife being in return for voting for him.
[33] Mr Dresser Lazaro ed that abou about February 2010, as a result of instructions which she received from God when she was ill, she started preparinicine and applying it by massage for herself and then other people. She was told to treat teat two kinds of sicknesses that frequently kill people from Pukapuka, and massaged two very sick people in Rarotonga. Before she and her husband went to Pukapuka in late October last year to campaign for the Election, she received a telephone call from Mr Teinho had been her teacheracher on Pukapuka. He told her about his medical condition and she agreed to massage him when she came to Pukapuka. She took her medicineggs and limes to Pukapuka to massage him and other people. ple.
[34] She said that she met Mr Tinomana when she and hebanusband were on the beach. She said that they asked him what his name was and who his parents were. She and her husband had st campaigning. She told him her husband was standing for the Cook Islands Party and asked hied him what Party he supported.
[35] The next time that she saw Mr Tinomana was when he cameheo the house where she and her husband were staying. He said that he had a sore stomach. She called him into the sitting-room and there gave him some medicine and a massage. She asked him to back for further massage buge but he did not. She said that she never asked him to vote for her husband as payment for the massage. She said she did massages for him and other people on Pukapuka, as she does this for free to help sick people and serve God.
[36] Atera Temoana deposed that on Wednesday 3 Novembe0;2010, Mr Laza;Lazaro came to tme whee where she and Mr Tinoman their children live lived. She said that he told them that he did not have anything for them and did not have any foooffer. How if he f he was successful at the Election he woue would help them. She said that he told Told Tearo that his wife was good at massaging and that he should go to her for a massage. After that visit she and Tearo tried very hard to avoid Mr Lazaro and his wand would huld hide if they thought they were coming to their house.
[37] Ms Temoana saat on Tuesday 9&#y 9 Ner, after came back from from fishing, he asked her to accompany him to Mr Lazaro's ho's house and that he was going to get a me. Shyed outside on the veranda while Tearo went insidinside to get a massage. Mr Lazaro anro and other pewere were on the veranda, a Lazant inside for a while. ile.
e>
[Note: these paragraphs about Atera Temoana's evidence are to be mto tht of the draft Judgment to follow the part which hich deals with the evidence of the evidenvidence of Tearo Tinomana and before I deal with the evidence of Mr and Mr Lazaro].