Ioane v Kake [2011] CKHC 5; Misc 122 of 2010 (3 February 2011)

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

ter">AND

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

BETWEBETWEEN

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

Ruling: 3 February 2011

RULING (No. 2) 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] We have now come to the point in the evidence where an earlier objection raised by Mr Lynch to certain evidence to be given by Mr Anitonia was raised and I reserved a final decision. I have now fully grasped the significance of paragraphs 8 and 9 of this affidavit, which Mr Lynch criticises. He has also confirmed paragraph 11 falls within the same category.

[2] I have taken this issue up with Mrs Browne and sheput it to me o me that in effect this is propensity evidence or similar fact evidence designed to support the allegations made.

[3] As Mrs Browne has ted, allegations of bribery are very serious. The standard dard of proof is not that of a criminal standard but it is higher than the usual civil standard of balance of probabilities. The Act requires particulars to be given. I am not prepared to allow allegations supposedly of similar fact evidence to emerge by a side-wind. If they have not been pleaded I am not prepared to entertain them.

[4] Therefore, I do not propose to read paragraphs 8, 9 and 11 of Mr Anitonia's affidavit.

Weston CJ