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High Court of the Cook Islands |
IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT AITUTAKI
(CIVIL DIVISION)
MISC NO. 112/2010
[AITUTAKI]
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
AND
IN THE MATTER of Sections 7(4) and 20(4) of the Electoral Act 2004
BETWEEN
KETE IOANE
Petitioner
AND
MONA IOANE KAKE
First Respondent
AND
TAGGY TANGIMETUA
Second Respondent
AND
MARK TEREI SHORT
Third Respondent
Hearing: 2 and 3 February 2011
(Held in Aitutaki)
Counsel: Mrs T Browne for Petitioner
Mr P Lynch for First Respondent
Mr H Matysik for Second and Third Respondents
Judgment: 3 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. On 24 November the First Respondent, Mr Mona Ioane Kake, was declared the winner
in the Vaipae/Tautu constituency, having received 163 votes. The Petitioner, Mr Kete Ioane, received four votes less, that was a
total of 159 votes.
[2] A Petition was lodged on 1 December 2010, and an Amended Petition on 10 December 2010. The Amended Petition raised seven qualification
issues under s 7 ofElectoral Act 2004 ("th ("the Act"), and two bribery allegations in terms of s 88(a).
Strike out application
[3] Mr Lyor the First Respondent hent had filed an application to strike out the Petition for lack of particulars in relation to the
allegations of bribery. He based this on s 92(4) which requires the n>span>"specific grounds" of the challenge tset out in the Petition. Mrs Broor the Petitionerioner mner met the strike out application with a Second Amended
Petition on 21 December 2010, and this set out deta details of the complaint of bribery. In a Minute of the Court dated 22 December
2010 Iurned the strike out out application to the date of hearing of the Petition in Aitutaki.
[4] At the commencement of the hearing yesterday I heard argument in relatielation toon to the strike out application, and dismissed
it. I did, however, indicate that I was not unsympathetic to Mr Lynch's concerns but ught tght that such deficiency as there might
be in the Petition could be overcome during the course of the hearing. I am satisfied that that has occurred and tr Ioane was not
prejudiced by such deficiencies as thes there might have been in the Petition.
[5] Mr Lynch had also raised an issue concerning an affidavit which had been filed in quite recent times. He submitted that it raised
new issues of bribery and that paragraphs 8 and 9 should be struck out. I reserved my final decion the point until the Peti Petitioner
proposed calling the relevant witness. This happened yesterday afternoon. I then ruled that not only paragraphs 8 and 9, but also
paragraph 11, would not be read for reasons I explained in my Ruling (No. 2). In short, I concluded that the Petitioner was attempting
to raise new bribery issues without a proper particularisation of them.
Some procedural issues
[6] At the commencement of the hearing yesterday Mrs Browne withdrew a n of the the qualification challenges so that four remained.
Two of these four were a couple who effectively stood or fell together. Towards the end of the hearthe allegation of bribery concerning
sunglasses was also wiso withdrawn, leaving only one of the original two bribery allegations to be decided.
[7] The evidence was given in a slightly unorthodox manner, but it made it much easier for the Court to address the issues. The evidence
was given by reference to each of the electors under challenge, with Mrs Brgoing first and Mr L160;Lynch thplying. Followollowing
that process, the bribery allegations were addressed with Mrs Browne callll of her witnesitnesses first, and Mr Lynch calling his
witnessco second. Following t heard argument and deliverlivered this decision.
[8] All the evidence was givelly to the Court except for one affidavit which was admittemitted by Mr Lynch without the need tl tall
the witness for cross-examination. The evidence given before me was marked by many direct conflicts as between the two sides of the
dispute. As I will sartly, I need to resolve the disputes on traditional credibiedibility grounds.
[9] This decision is given at the end of hearing the Petition and before having heard argument on the Counter-Petition. Counsel have
requested that I proceed in this way and I have.
Qualification issues – the law
[10] This issue turns on what it means to reside in a constituency. Section 7, andicularly s 7(2),7(2), uses the esion
[11] I am troubled by that reference to "occasional", absences because I do not think that this reflects the reality of life in the Cook Islands. In my view, s 7(2) needs to be ireted
in d in a sensible and pragmatic way that reflects the reality of life in the Cook Islands. The reality is that people do ive and
work within the straight-jackets of their constituency. Constituencies are small anll and people come and go from these constituencies
very regularly. The word "occasional" does not appear to be entirely apt to deal with that sort of circumstance.
[12] Mr Lyeferred me to a decision sion I had made in the last Election: Tekaotika Matapo v Robert Wigmore & Ors.[1] I noted in that Judgment:[2]
Continuous residency does not prevent an elector from moving outside the relevant constituency to undertake work. If it did, no one would afford to leave the constituency to work at some other place. The fact that an elector may then spend nights living in a hotel does not necessarily mean that a person has ceased to reside at what is otherwise their place of residence.
[13] In my assessment, 'residence' is a matter of fact to be assessed in each case. Where a person resides is not, in the usual course, to be a simple exercise of adding
up how many hours or days they have spent at a particular place. That sort of exercise might need to be undertaken under s 7(3),
t is not the general eral test to be undertaken in a test of residence under s 7(2). That would nise the fthe fact that people do
work outside their constiies, travel frequently to other Islands within the Cook Islk Islands and also travel to New Zealand and
Australia.
Rima Mata
[15] It was alleged that Ms Mata lived with her boyfriend at Amuri and so should not have voted in Vaipae/Tautu. The Petitioner called
evidence from her former partner Mr Ruarangi. He aed that MsMs Mata lived in AmHe also refo referred recent conversation with
a th a person he described as Ms Mata's current pr to supporupport his evidence.
[16] Ms Mave evidencedence in rebutrebuttal. I prefer her evidence to that of her former partner. Incase of conflict I accept hept
her evidence rather than his. She gave her evidence in a frank and straightforward way. Some of the questions asked of her were invasive
of her privacy but she tended to answer them directly. She accepted that currently she had a relationship with a man at Amuri, but
she denied that he was her partner in the sense that lived with him at Amuri. In fact, she said she lived with Ms Tumangi at the
house at Vaat Vaipeka.
[17] There was evidence supporting her from Ms Kamoe. I accept that bhe anhe and Ms Mata primarily li the househouse at Vaipeka, which
is in the Vaipae/Tautu constituency.
[18] In reaching this conon I taken account of t of the arguments raised by Mrs Brow;Browne thth of these tese two witnesses –
that is Ms Mata and Msmoe – h11; have reasons to give partial evidence. She submitted that they were both beholden to give
the evidence thay dido not accept that that. Indeed a similar sort of allegation could be made in relation to heto her own witness.
What I have done is to stand back and assess the evidence given by these three people, and my conclusion reflects my assessment of
that evidence.
[19] Therefore the Petition in relation to Ms Mata is dismissed.
Avatea Tuoa
[20] There is no evidence before me as to when this elector came onto the Roll Roll, but I am advised from the Bar that it was in
2006. He has been on the Roll since that time in the constituency of Vaipae/Tautu. The focus of the evidence before me was whether
he became disqualified to appear on that Roll in 2010. The allegation was that this elector lived with his girlfriend at her parents'
house or in temporary accommodation of his girlfriend's family. It was said this house (or temporary accommodation) was outside the
relevant electorate.
[21] Mrs Strickland girl's mother, ger, gave evidence for the Petitioner. As she gave her evidence, however, it became clear that
the black and whicture initially painted by her was perhaps not so clear. I then heard evidence from the elee elector's father, Mr
Messine. I foum to be an iman impressive witness. He answered questions simply and quickly without prevarication. He said that his
son Avatea'ongings – what he called 'everything' – were in the house with him and his wife. I also heard evidence from the voter. He accepted that he travelled between his
girlfriend's house and that of his parents. He regarded his parents' house as being the place where he actually resided, but he accepted
that he split his time between the two. I think it is fair to say he was very nervous in giving his evidence. He appeared anxious
to avoid creating offence either on the part of his girlfriend's family or of his own.
[22] It was clear to me that Avatea Tuoa and his girlfriend do not always live together as a couple, and do not always live together
with their child as a group of three. Sometimes they live individually either in the elector's parents' property or sometimes in
that of his girlfriend's. It is also clear that Mr Tuoa regards his parents' house as the place where he actually lives, and he gave
evidence that in 2010 he spent quite a bit of time there.
[23] I gained the clear impression that this elector was caught in a tug-of-war between the two families. I believe that Mrs Strickland
holds strong ngslings that he should vote in her electorate and I find that this thinking coloured her evidence. In the case of conflict
I prefer Mr Messine's evidence at of#16s Strickland. I am very sorry that I have had had to reach such a view because I think both
families are acting out of est of intentions. But the contest was put before me in those terms and I need to resolve ilve it, and
I have resolved it as I have said.
[24] I conclude that this elector resides at his parents' home for the purposes of s 7 of the And I reject the cthe challenge in the
Petition.
Mr and Mrs Ngatae
[25] I then come to the third and fourth objections, Mr and Mrs Ngatae. Mrs Ngat listed in the Electoractoral Roll as Veia James,
but it is common ground that she is to be regarded as Mrs Ngatae, the wife of Mrat;Ngatae. I deal with these two electors together
becthey usband and wife aife and rund run the hotel business jointly between them.
[28] Mr Ngatae gave evidence on behalf of his wife and himself. As I said during the course of argument, I found him to be a good
and honest witness. He explained hked long hours at Amuri and so did his wife. They divided their time between the house at V at
Vaipae and their place of work at Amuri. He was candid that he and his wife made a decision to spend more time sleeping in their
house at Vaipae in the period leading up to the Election because he believed that would qualify him as an elector in that constituency.
He wanted to make sure that no one would argue that they were disqualified. Unfortunately his hope has not come to pass. There has
been a challenge to both him and his wife.
[29] Mr Ngataeained that his plantalantation and pigs are at his house in Vaipae. He said that he frequently returned to his house
at Vaipae in the afternoon to work in his ption or with his pigs. He and his wife would then return torn to the hotel in the evening
to cook food and to make sure that the place was secure later in the evening before guests went to sleep. His evidence was that Mr
and Mrs Ngatae eat, wash, cook and perform other normal daily domestic duties at their hotel. They keep their clothes there. While
they have a fridge, freezer and ision in their house at Vaipae, these are not used. Their family photos can be found at Vait Vaipae.
Mr Ngatae explained that het tilt the Vaipae house in the early 1990s and that both he and his wife regarded it as their house and
where they resided.
[30] I heard evidence from some corroboraoborative witnesses supporting what Mr Ngatae said. I also heard evidence from another employee
of the hotel, Ms Hewitt, who gave evi inconsnconsistent with that of Ms Leon. I prefer the evidence of Ms Hewitt whose evidence to
me seemed to be more credible.
[31] Notwithstanding the conf conflict in the evidence, the real issue was whether Mr and Mrs Ngatae re in thouse at Vaip Vaipae ipae
in the terms set out in the Act. As I said during the course of argument, I have found this to be a vefficult issue. Many of the
functions that one normally associate with a place of residence ence did not occur at Vaipae. Yet Mr Ngatae has provided a perfectly
good explanation for why that is. I gained a very powerful sense that Mr and Mrs Ngatae regard thouse at Vait Vaipae as their residence.
It is where their plantation is and where Mrs Ngatae haarden.
>
style='font-family: Times New Roman; '>[32] I am also troubled by the fact that if I find find they did not reside at Vaipae then
thy other alternative is that they resided at Amuri. It wouldwould seem contrary to commonsense to reach such a view. Nevertheless,
I am bound to reach the conclusion that the two electors did not reside at Vaipae. I reach that conclusion with great regret. The
Act requires me to act in accordance with the law, and as best I can assess its terms, I have reached the conclusion that the votes
of Mr and Mrs Ngatae shoot be counted.
[33] Therefore, the Petition in that respect is upheld.
Bribery allegations: the law
[34] The allegations are brought in terms of s 88(nitially they concerned rned two particular incidents but, as I have mentioned,
we are now only addressing allegations concerninater tank and two particular electors, Mr and Mrs Tangi. br>[35] Mrs Browne provided me with references to a number of paragraphs in the decision of the former Chief Justice, David Williams;J,
in Pitt v Ioane.[3] In particular, she referred to paragraphs 4.11, 4.15 and 4.16 of that decision. She emphasised that in order to prove bribery there
needs to be a 'giving or offer of consideration'; it needs to be a valuable consideration; it needs to have been given to induce the voter to vote for the candidate; and, finally,
the intent behind it has to have been corrupt in terms of how the Act expresses it. She accepts that the standard of proof is relatively
high, commensurate with the seriousness of the allegation. She emphasised, however, that the burden of proof is not so high as to
amount to the criminal standard.
[36] Mr Lynch provided useful submissions in relation to bribery, but in large measure these are to the same effect as Mrs Browne.
Mrs&Browne did emph emphasise a passage in the earlier decision/span>Pitt v Ioane
[37] The allegations were as follows:
b) That the First Respondent committed the following acts of bribery within the meaning of Section 88 of the Act in conon with with the said Election in that:
(i) He directly or indirectly gave or offered to [two] electors valuable consideration in order to induce the electors to vote for him; or
(ii) He directly or indirectly made gifts or offers to these electors in order to induce them to procure or endeavour to procure his return or the vote of any elector;
(iii) In consequence of such gift or offer, procured or endeavoured to procure his return as Candidate or the vote of any elector. The particulars are as follows:
1. The First Respondent is a member of the Aitutaki Cyclone Appeal Committee. He was tasked with the job of carrying out a survey of the households in Aitutaki that were affected by the Cyclone who were left without water tanks. At the time he was tasked with this responsibility the Committee was unaware that the First Respondent was putting his name forward as a Candidate for the Constituency of Vaipae/Tautu nor did the First Respondent disclose this to the Committee.
2. The First Respondent represented himself to Tangi Metuakore (page 15 Li) and Tangi Mouari Meti Metuakore (Page 20 line 21) being electors of the Vaipae/Tautu Constituency as a person who had authority to provide materials, in parti water tanks to the said electors in order to induce the elhe electors to vote for him. He offered to provide the water tanks to the said electors in return for their votes or alternatively to induce them to vote for him.
3. Tangi Metuakore is the same person as Apu (No. 42) on the list for the Vaipae District. The First Respondent allegedly visited this elector twice during the last week of October between 2pm-4pm. During the First Respondent's first visit Tangi Metuakore was at home on his own. On the second visit however his wife Tangi Mouari Metuakore was with him. The wife told the First Respondent to go away.
4. The offer to provide the said water tanks to the said electors was also to induce them to procure or endeavour to procure the return of the First Respondent or the vote of any elector.
Bribery - the Petitioner's case
[38] The Petitioner called three witnesses. The first two of these were Mr and Mrs Tangi. They gavir evidence ence in a mix of Maori
and English. Mr Tangi in partr seemed to hato have some difficulty giving evidence. He tended to settle down as time went on. However,
I wish to stress that while I have formed adverse viewhis evidence, which I will describe shortly, that did not anot arise because
of the communication difficulties he encountered.
[39] Each of Mr and Mrs Tangi had swo affidavit in t in English. Mrs Tangi had deposed that her husband's affidavit had been read
out to her and she agreed with it. I must say I have some reseons as to this process. I believe that the English renditiodition of
what was an account apparently given in Maori was not entirely accurate. For example, Mr Tangi cd one key aspect of t of his written
evidence in relation to whether Mr Ioane was on his motorbi noor not. Mr Tangi also added ae chunk ounk of extra evidence into what
was referred to as the second visit involving Mr&#oane.
[40] Both Mr and Mrs #160;Tangi stroasserted thad that Mr Ioane visihem twice in Octo October and spoke to them both on each occasion.
I observe that the Petition itself at paragraph 3 shat M60;Taas only there here on one of the two occasiocasions, so there is an
inconsistency, as , as I see it, between the Petition and thdence. I am bound to say that I found the evidence given by Mr and Mrs
Tangi unsatisfactoryctory in a number of ways. It simply did not have a ring of credibility about some key aspects. Mr Ta evidence
can be more crie criticised in that regard than his wife's. As I say shortly, I do not accept there were two visits in October. I
accept there was one only. On that occasion I find the First Respondent was givs given a brush-off. The question of water tanks was
not discussed on that second occasion. Indeed, Mrs Tangi said as much when she gave evidence.
[41] The evidence of Mr and Mrs Tangi as to the alleged offer of a water tank was imprecise and variable. For example, at one point
Mr Tangi said that uld get a wt a water tank only if the CIP would "stand" at the Election. It was only when counsel clearly prompted him that he would say that the First Respondent was wanting to exchange a vote
for a water tank.
[42] I also have some trouble accepting that it is credible that Mr Ioane would offer to g wate water tank to someone who already
had one. There was no suggestion that the existing water tank of Mr and Mrs Tangi was in any way unsatisfactory or needebe replaced.
[43] In my view, the most telling comment was made by Mrs Tangi when she said, in ionation to the second of the two visits in October,
that Mr and Mrs Tangi did not wish to hear what Mr Ioane was saying. Plainly whey were not interested in voting for him and they
were not interested in hearing him say anything about his campaign. Mrs Taaid there was no discussicussion of water tanks on that
second occasion, and in that respect I do accept her evidence.
[44] In addition to the evidence given by Mr and Mrs Tangi there was evidence from a third witness on behalf of the Petitioner giving
evidence in relation to tanks supplied by a Church organisation. I did not find any of that evidence useful in addressing the bribery
issues.
Bribery – the First Respondent's case
[45] The First Respondent gave his evidence by reading a detailed and comprehensive affidavit. One aspect of his evidence was unsatisfactory.
I find that he prevaricated in relation to the topic of when he was appointed a candidate. He seemed very reluctant to accept that
he had had political aspirations for some time. After some persistent cross-examination by Mrs Browne, it became cleat he t he had
had an interest in holding a political position from 2009, and that he actively became a candidate – even if it was not publicly
announced – in or about August 2010.n>
[46] Mr Ioane was criticised by Mrs Browne in undertaking the survey in June on the basis he had a clear intention at that point of
becoming a candidandidate. She said that that gave him an opportunity to politicise the issd to ce his political ical interests.
Mr Ioane steadfastly stly rejected these allegations. He said that he was acting out of the best interests of the people of Aitutaki
and that the question of politics was only at the back of his mind. Mrs Browne also pme cations to s to Mr #160;Ioane in ron to what
shat she said was a particular high percentage of 'yeses' in the list of people to get tanks out of the constituency of Vaipae/Tautu. I am not able to reach any conclusion in relation to
those assertions because there is simply not enough evidence before me to do so.
[47] In the course of his evidence Mr Ioane emphasthat in June hene he was undertaking the survey for the benefit of the whole Island
and not just the electorate for which he eventually stood. He did so as part of his general denial that in June he was acting in
any sense in a political way. I accept that evidence.
[48] In relation to when the first meeting occurred, which Mr and Mrs Tangi say was in October, Mr Ioane said that the firetineeting
occurred in June and the second meeting in October. He agrees (with Mr and Mrs Tangi)e were only two meetimeetings. I accept his
evidence. If thst meeting occurred in June, which I have found it did, it , it seems highly unlikely that there would have been an
active canvassingvotes at that point becausecause, although it was known there would be a General Election, no date had been set
and Mr Ioane's ntion as a candidatdidate certainly had not been approved by the Committee of the CIP, or even announced. The General
Election wh was eventually called in November was some five months after the survey was undertaken in n in June. Mr Ioane denied
the allegaconc concerning the first meeting and I accept his evidence.
[49] As e second meeting between Mr Ioan Mr and Mrs Tangi, I ac I accept this occurred in Octo October during the course of Mr Ioane's
cgn. I accept what what he has to say about that meeting, that there was no discussion of water tanks and I have already mentionet
Mrs Tangi said the same. >
Bribery – conclusion
[50] So my conclusion in relation to bribery is this. While Mr Ioane may have been unwise to conduct the survey in June (because that
raised the possibility of the sort of allegations that have now been made against him), I do not find that there was any act of bribery
that took place either in June or October 201 indeed on any other occr occasion so far as Mr and Mrs Tangi are concerned.
[51] Therefore, I reject the Petition in relation to the allegations of bribery made agae against Mr Ioane.
[52] I have upheld two challenges in relation to Mr and Mrs Ngatae. Because thse there are four votes between the electors that means
that the result of the Election has not altered. For it to have been altered I would have had to uphold the briberegations as well,
and I have rejected those. In light of thof the fact that I have rejected, in essence, the Petition, I need to check where we are
at with the Counter-Petition.
[53] Following my decision in relation to the Petition, Mr Lynch confirms he withdrhe the Counter-Petition on behalf of the First
Respondent.
Costs
[54] The question of n of costs is reserved.
Weston CJ
[1] Tekaotika Matapo v Robert Wigmore & Ors Misc No. 88/06, 1 December 2Weston J. [3] Pitt v Ioane Misc No. 82/2006.
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