a>
(a) did conspire with each other by deceit or other fraudulent means to defraud Her Majesty The Queen by participating in a scheme
whereby money which belonged to Her Majesty The Queen was fraudulently used for private purposes, namely the charter of an aircraft,
with cash, from the Ministry of Health Medivac Scheme, under the false pretence of a sick patient evacuation, the alleged patient
being Mr Willie John, former MP for Penrhyn, when the real purpose was to uplift Mr Robert Tapaitau, the newly elected Member of
Parliament for Penrhyn, and his wife, to Rarotonga on 30 June 2018 to secure his support for the Cook Islands Party and the personal
benefit of the defendants as Prime Minister and Deputy Prime Minister respectively[9].
[6] After an unsuccessful application by the defendants to stay the 22 July 2020 informations[10], they went to trial before Hugh Williams CJ sitting, by consent, as a Judge Alone[11], with the evidence being given on 15-18 March 2021.
[7] After the informant’s case was formally closed, Mr Raftery QC, senior counsel for the respondents, applied for dismissal
of the informations on the ground that the evidence disclosed no case for them to answer and, in an oral decision delivered on 19
March 2021, the application was granted with the decision being summarised in the following passage:
[136] Rounding all that off, and dealing first with the Pukapuka flight, the finding is that it has not been shown to the required
standard that the circumstances amounted to the furtherance of a criminal conspiracy between Messrs Brown and Puna to commit a crime
within the meaning of the authorities. No conspiracy was alleged and no crime proved, whether under s 280 or otherwise. In part,
their actions as proved may have been legally erroneous but no part has been shown to have been founded in deceit or in other fraudulent
means or with the intention of defrauding the public, and accordingly it has not been shown that the defendants have any case to
answer in relation to the Pukapuka flight. There being no case to answer, the consequence of that is that informations 311/20 and
315/20 must be dismissed as having no possible basis for success. The defendants are therefore acquitted on those informations and
verdicts of “Not Guilty” are entered on the same.
[137] In terms of the Penrhyn flight, again it has not been shown to the required standards that Messrs Brown and Puna entered into
a conspiracy to commit a crime within the terms of the authorities, either under s 280 or otherwise. It ht beot been shown that
their actions in respect of that flight were motivated by deceit or other fraudulent means and it has not been shown that such actions
ofrs as were proved to have occurred were intended to defraudfraud the public.
[138] Accordingly the orders will be that those two informations must also be dismissed as being incapable of leading to a verdict
of guilty. The defendants are therefore acquitted on informations 310/20 and 314/20 and verdicts of “Not Guilty” are entered on the same.
[139] The charges under the Ministry of Finance and Economic Management Act are to be marked “not to be proceeded with without
the leave of the Court or the Court of Appeal”. In light of all the findings of law and fact throughout this judgment the
possibility of leave being granted is not expected to excite any enthusiasm for leave to be sought.
[140] The overall result therefore is that the private prosecution is at an end with both defendants being acquitted on all charges.
[8] While the judgment was delivered in open Court on 19 March 2021 a few days elapsed before both a verified transcript of the evidence
was available to the parties and a typescript of the judgment. As a result, at the informant’s request, a summary of the judgment
was issued on 1 April 202he typescript of t of the full judgment followed on 6 April 2021.
[9] On 27 April 2021, Mr Allsworth, acting personally and not through Mr George, filed hisapplication for leave to extend by 20 days
the time availabailable to him to file a Notice of Appeal on the grounds that the transcript of the evidence was still unavailable.
The application was intituled as brought under ss 58(2)(b) and 59(b) of the Judicature Act 1980-1[12] but when it was pointed out to Mr Allsworth that those sections only relate to appeals in civil cases and that any application thereunder
should not have been to this Court but to the President or a Judge of the Court of Appeal, no amendment was sought, no further action
could be taken on the application and it lapsed accordingly.
[10] At the time, Mr Allsworth filed no second application, but on 6 July 2021, 108 days after delivery of the 19 March 2021 judgment,
Mr Allsworth, by then again acting through Mr George, applied for leavappo appeal the judgment and to extend the time for him so
to do. It is with those applications that this judgment is concerned.
[11] On 30 April 2021 the dants filed a Notice of Opposition to Mr Allsworth’s 17;s 27 April 2021 application opposing the
grant of leave on the basis that the judgment had been available from 1 April 2021 (summary) and a full copy issued on 6 April 2021
and making the point production of a transcript of the evidence at the hearing wing was not vital to informants bringing appeals
as any appeal would be based on the judgment, not the evidence, and saying “there is no good reason why the informant failed
to meet the prescribed time for filing his notice of appeal”.
[12] On 8 July 2021 the defendants filed a Memorandum in Opposition to Mr Allsworth’s second leave application saying the “grounds
of opposition to the original application ... remain applicable to this latest application” and that “the defendants
oppose this latest application on the same grounds”.
Explanation for Delay in Filing Second Leave Application
[13] Mr Allsworth filed a brief affidavit in support of his 6 July 2021 leave application recounting the history of the availability
of the transcript of the evidence and saying that, since 27 April 2021, “we have been trying to instruct a senior barrister
and solicitor in New Zealand to act for us” but “to date we have not heard from him despite many follow ups” so
“we have decided to reinstruct the prosecuting counsel to act for us again to file this application” as a consequence
of which “Mr George, with some reluctance, agreed to act for us if we have no-one else”. The affidavit said the Citizens
Against Corruption group was taking its action in what it sees as the public interest.
[14] Mr George filed two sets of submissions in relation to the current matter, the first dated 6 July 2021 and attached to the second
leave application, and the second dated 16 August 2021 in response to Mr Raftery’s submissions dated 22 July 2021[13]. In the second, Mr George submitted[14] that the application for leave was out of time was “because local lawyers were scarce or unwilling to act and difficulties
were experienced instructing a New Zealand based lawyer” and that “CAC has no funds to finance legal counsel from New
Zealand and I was the only one willing to do it pro bono even though I was suffering from stress and fatigue working on my own”. At the hearing Mr George said he was continuing to
act pro bono. The submissions continued by submitting[15] that a “three month delay in seeking leave to appeal is not unreasonable comparing the position of the two parties”;
that “CAC is impoverished with no access to legal, financial and logistical facilities,” but that “the defence
on the other hand had easy access to everything especially when the two defendants have government personnel and facilities at their
disposal and unashamedly used them during these proceedings”.
[15] Evaluating those assertions, it is to be noted that there is no evidence to support CAC’s claimed indigence or underpinning
Mr George’s comments about the defendants’ position and that difficulties engaging counsel are barely adequate as an
explanation for delays in applying for leave. But, if the circumstances discussed in the following portions of this judgment disclose
that there is both jurisdiction to bring an appeal in the circumstances of this matter and good grounds for so doing, the proper
approach must be not to hold the inadequate reasons for delay in applying for leave as determinative against the informant.
Does Jurisdiction Exist to Appeal the 19 March 2021 Judgment in the Circumstances of this Matter?
[16] To reiterate, the 19 March 2021 judgment was on the defendants’ application to dismiss the informations under s 280 of
the Crime 1969 on thon the basis that the evidence before the Court adduced by the prosecution – whose case had been closed
– disclosed no case for the defen to answer. The test to be applied in such situations is w is whether the evidence before
the Court disclosed evidence on which the trier of fact, properly directed and applying the applicable law, might convict the defendants.
But, as this was a Judge Alone trial, the trier of fact had the advantage of considering the evidence both in the context of its
legal components and as the one making the jury-like decision as to whether the evidence, matched against the elements of s 280,
could result in conviction. For that reason, the finding that there was no case on the evidence for the defendants to answer necessarily
led to dismiss the informations and acquittal of the defendants.
[17] It being common ground that acqt acquittals are normally unappealable in Common Law jurisdictions such as the Cook Islands,
the threshold question then arises as to whether there is jurisdiction in law for Mr Allsworth to appeal the acquittals in this case.
[18] Mr Raftery’s submissions were that the law and traditional public policy were such that there could be no appeal against
a finding that the evidence adduced by the prosecution provided no case for defendants to answer. This was on the basis that prosecutors
have never been able to appeal acquittals whether by jury, Judge Alone or following a finding of no case to answer. He submitted
that the only possible exception to that principle might be that provided by s 75D of the Judicature Act 1980-1[16] which gives High Court Judges power, during or after a trial, to reserve a question of law arising in the trial for the opinion of
the Court oeal.
[19] That, howeverwever, requires identification of a question of law arising during or after the trial and, as will be seen, identification
of any questions of law raised on Mr Allsworth’s behalf is very difficult.
[20] Mr George – who candidly acknowledged during the hearing being unaware of s 75D until receiving Mr Raftery’s submissions
– suggested that the defendants’ approach adopted New Zealand precedent, something which was inappropriate in the Cook
Islands wholesale proposition[17]>[17] and, while acknowledging that there is no relevant statutory provision in the Cook Islands, suggested the applicability of the proviso
to s 3 of the nal Procedure Act Act 1980-1 was tempered by s 99 dealing with minary proc proceedings.
[21] The proposition that the situation existing when the 19 M2021 judgment was delivered might at this late stage be trae translated
into a preliminary proceeding under s 99 fails when the termshe sthe section are considered. It applies “where a trial of
any person is to be heard” so is clearly prospective, etrospective; it applies only when the mode of trial is under ss 14,
16 or 17 of the Judicaudicature Act 1980-81 when this was under s 15A; it provides for wriwien witness statements being tendered
at least 28 days before trial with the defence having the right to have those statements considered by a JP; and it applies only
to the situation where a Justice has to decide whether a defendant should be committed for trial[18] with the requirements of the section to follow being set out. True, s 99(1)(k) provides that a “discharge of the defendant
under this subsection shall not operate as a bar to any other proceedings in the same matter” by contrast with s 111(2), but
tstatutory requ requirements clear that Mr Allsworlsworth has no rse trse to s 99 of the Criminaledure Acte Act 1980-81 in the circumstances
of this ma
[22] Reverting to s 75(D)(1), there h been neen neen no request from the prosecution under that section during the trial for resion
of any point of law forw for the Court of Appeal, and s 99 of the Criminal Procedure Act 1980-81 being inapplicable, it would be
strained and artificial to now reserve for the Court of Appeal any points of law that can be identified from Mr George’s submissions
for the Court of Appeal, particularly having regard to the findings later in this judgment which all assert, as Mr Raftery emphasised,
matters of fact.
[23] In those circumstances, the only other possible provisions which might give the Court jurisdiction to grant Mr Allsworth’s
application for leave to appeal in the circumstances of the 19 March 2021 judgment are by way of s 68 of the Judicature Act 1980-1[19] or Article 60 of the Constitution.
[24] Section 68 reads:
68. Appeals with leave – (1) A person convicted before a Judge of the High Court sitting with or without a jury —
(a) whose sentence is a fine less than $200; or
(b) who has been sentenced to a community sentence; or
(c) who has been convicted and discharged,
may, with the leave of a Judge of the High Court, appeal to the Court of Appeal against his or her conviction or sentence or both
conviction and sentence.
(2) Both the prosecutor and any person convicted by a Justice or Justices of the Peace who has appealed to a Judge of the High Court
under section 76(7) may further appeal to the Court of Appeal against the decision of the Judge of the High Court, with the leave
of a Judge of the High Court.
(3) If a Judge of the High Court refuses leave to appeal under subsections (1) or (2), the intended appellant may apply in accordance
with the Rules of Court to a single Judge of the Court of Appeal who is not also a Judge of the High Court for leave to appeal to
the Court of Appeal[20].
(4) Leave to appeal may be given on conditions as to filing the appeal within a stated period but there shall be no condition imposed
requiring the giving of security for costs of the appeal.
[25] Sections 68(1)(3)(4) being presently inapplicable, the only possible provision of s 68 enabling the High Court to grant leave
to appeal to persons in Mr Allsworth’s position would be by way of s 68(2) but, as was observed in Joint Minute (No’s
22 & 14),[21] for Mr Allsworth as prosecutor to be given a right of appeal, with leave, to the Court of Appeal against the 19 March 2021 judgment
under s 68(2) requires the insertion of commas after both the words “prosecutor” and “s 76(7)” and construie
the subsection as if the word “further” were superfluous. As Mr Raftery submitte#160;68(2) 8(2) clearly apponly to
the situation where there has been an appeal to the High Court from a decision of a of a JP and gives a second appeal, with lonly,
for that matter to proceed to the Court of Appeal. Tl. That is, of course, not the case here so s 68(2) is therefore inaable able
to create jurisdiction for the High Court to grant leave to appeal to persons in Mr Allsworth’s situation.
[hat leaves Art 60 of the Constitution[22] as thas the only possible avenue giving a right of appeal against acquittals. The Article reads:
60 (1) Subject to the provisions of this Constitution, and as may be prescribed by Act, the Court of Appeal shall have jurisdiction
to hear and determine –
(a) any appeal from a judgment of the High Court; and
(b) any cause or matter removed by the High Court to the Court of Appeal.
(2) Notwithstanding anything in sub clause (1) of this Article, and any limitations as may be prescribed by Act, the Court of Appeal
may in any case in which it thinks fit and at any time, grant special leave to appeal to that Court from any judgment of the High
Court, subject to such conditions as to security for costs and otherwise as the Court of Appeal thinks fit.
(3) In this Article the term "judgment" includes any judgment, decree, order, writ, declaration, conviction, sentence, or other determination.
[27] At this point, Art 60(2) is inapplicable but it is clear that, under Art 60(3), the judgment of 19 March 2021 is a “judgment
... order ... or other determination” of the informations and accordingly the question is whether the 19 March 2021 Judgment
is appealable by dint of the operation of Art 60(1)(a).
[28] That consideration, in its terms, is narrowed as it was common ground that jurisdiction to appeal against the 19 March 2021
Judgment is nowhere “prescribed by Act” and that there is nothing elsewhere in the Constitution affecting the situation,
so the possible avenue of appeal is not “subject to the provisions of this Constitution” itself.
[29] That means there is only power for this Court to grant Mr Allsworth’s application to appeal against the 19 March 2021
if that situation can be brought within the phrase “the Court of Appeal shall have jurisdiction to hear and determine ... any
appeal from a judgment of the High Court”.
[30] Mr George, naturally, submitted that the phrase created a general right of appeal rather the alternative construction that,
if there is a right of appeal from judgments of the High Court created by some other provision, those appeals are to be heard and
determined in the Court of Appeal. Mr Raftery, again naturally, contended that the relevant phrase in Art 60(1)(a) did not itself
create a right of appeal in situations such as the present but ordained the forum for the determination of appeals brought pursuant
to rights of appeal created by other statutory provisions.
[31] It is considered that the defendants’ submissions are correct and the relevant provisions of Art 60(1)(a) prescribe the
forum for hearing appeals from High Court decisions brought under other statutory provisions, but do not create a right of appeal
from them.
[32] Looking at the issue from the viewpoint of policy, there is a wealth of authority from around the Common Law world that acquittals
are unappealable.[23] The principle is regarded as a fundamental incident of the Rule Against Double Jeopardy. In some jurisdictions the principle is
expressly set out in the Constitution.[24] In some the principle is grounded on Constitutional provisions similar to Art 60(1)(a) as supported by Court decisions.[25] In what would appear to be the case in virtually all jurisdictions, it seems to be accepted that any derogation from the principle
can only be brought about by statute specifically addressed to the topic and, even in those jurisdictions, the grounds on which acquittals
are challengeable are heavily restricted and do not apply in circumstances like the present[26].
[33] Those criteria not applying to the present case, there is no basis as a matter of principle for construing Art 60(1)(a) as creating
jurisdiction for this Court to grant Mr Allsworth’s application for leave to appeal the 19 March 2021 acquittals.
[34] Then, considering the issue from a more domestic viewpoint, the most telling factor against a finding that acquittals are appealable
in the Cook Islands is that, when Parliament was passing Part IV – the Part containing the “Provisions Relating to All[27] Appeals” – of the Criminal Procedure Act 1980-1, it created, especially in s 131, a comprehensive suite of powers for
Courts dealing with appeals against convictions or sentences, but created no powers relating to appeals against acquittals. Had
Parliament intended to depart from the Common Law principle that acquittals are unappealable when it was enacting provisions relating
to “all” appeals it would have provided an express regime for appeals against acquittals. It enacted nothing in that
area.
[35] Further, counsel were unable to refer to any attempt by prosecutors to appeal acquittals in the 40 years since the Criminal
Procedure Act 1980-1 was passed. Mr George, the main defence counsel in Rarotonga for many years, would have known of any such attempt
had it been made, but referred to none, even though such a precedent might have assisted Mr Allswobr> [36] To this poin point, those
two matters are strong indicators that acquittals are to be regarded as unappealable in the Cook Islands and that Art 60(1)(auld
not be construed so as to create a right of appeal in t in those circumstances.
[37] Additional, though less potent, factors against the reading of Art 60(1)(a) for which the informant contends are that, were
Mr George’s submissions correct, the Article would create a right of appeal against any judgment of the High Court, even those
which are by statute unappealable[28]. To construe Art 60(1)(a) as creating a general right of appeal against High Court decisions could found arguments cutting across
the provisions creating a right of appeal from High Court decisions but only with leave. Given that the Court in which JPs who qualify
under s 11 of the Justices of the Peace Act 2017 sit is the High Court,[29] such a construction could run counter to the provisions governing appeals fro’ sittings. Those difficulties also militate
againstainst a finding that this Court has power to grant Mr Allsworth’s application.
[38] Given all of that, both as a matter of principle and because of the lack of any enabling statutory provision, the conclusion
is that no jurisdiction is given to this Court to grant informants’ attempts to appeal acquittals in criminal cases, either
in the circumstances in which the 19 March 2021 judgment was delivered or generally, and accordingly Mr Allsworth’s applications
for leave to appeal to the Court of Appeal against that judgment and to extend the time for him so to do must be dismissed for lack
of the requisite jurisdiction.
Was the Judgment of 19 March 2021 a “wrong decision on the question of law based on ... mistaken identification and interpretation
of the facts”?[30]
[39] Despite the conclusion that the acquittals judgment of 19 March 2021 is unappealable, it was made clear during the hearing that
the view of Mr Allsworth and the CAC Group as to the correctness of their attitude to the matters in issue in the private prosecutions
is so single-minded that they intend to try to appeal to the Court of Appeal if the decision goes against them[31]. In light of that, some comments on the other matters raised by the informant may be germane.
[40] As already noted, it is difficult to define any points of law in the judgment which the informant challenges as being erroneous
but, from the matters listed as grounds in the applicant’s submissions, the following appear to be the points which are claimed
to be “wrong decisions on the questions of law based on mistaken identification and interpretation of the facts”: - (a) an error in paragraph [34] of the 19 March 2021 judgment as to those present at a swearing-in ceremony on 5 July 2018 which is
said to be a “fundamental error in using [the Chief Justice’s] mistaken analysis of the above facts, to set him off course,
to cleanse the two defendants of their criminal conduct”[32];
- (b) an error in the judgment “by switching the order and priority of the prosecution case back to front”[33];
- (c) “the actions and activities of both defendants, setting off the conspiracy activities were completely ignored in the judgment”[34];
- (d) “there is no allegation in this case of falsehood”[35];
- (e) that the Cabinet Submission which was exhibited in evidence “was invalid and should not have been allowed to be minuted”[36];
- (f) some general points concerning a Cabinet Minute exhibited in evidence and the evidence relating to that which “raises the
question that a Cabinet Minute approving an unlawful act cannot validate that unlawful act”[37];
- (g) criticisms that there were overt acts in the evidence other than those appearing in the Notice of Overt Acts[38];
- (h) that paragraphs [122] and [123] of the judgment “captured the real issues of the entire case” but were erroneous on
the facts[39].
[41] The overall thrust of the informant’s submissions is perhaps most neatly summarised in the following passage[40]: - It is submitted that the Court’s decision in reaching its conclusion that there was no case to answer was wrong, it slipped
when it decided that the gathering on 5 July 2018 was to swear all MPs after the section 78 confirmation on 28 June 2018 and its
finding that the switch to a non-urgent medivac evacuation from Penrhyn was a “coincidental” opportunity to uplift Robert
Tapaitau, when the evidence showed a long planned arrangement. Robert Tapaitau said in evidence that he knew the charter flight
to Penrhyn was intended for him all along.
- It is submitted that these are exceptional circumstances where a substantial miscarriage of justice has occurred.
[42] Before dealing with the individual points raised by Mr George it is pertinent to note that, although the 19 March 2021 judgment
dealt with a number of moderately complex issues of law, no challenge is brought by Mr Allsworth to the observations in the judgment
relating to any of them. As set out above, even the grounds on which Mr Allsworth’s application is based only refer to factual
matters. Examples of the issues of law dealt with in the judgment include the effect of Art 18(2) of the Constitution,[41] the rights, entitlements and obligations of MPs[42] and the interpretation to be given to provisions of the Electoral Act 2004, the Civil List Act 2005 and the Remuneration Tribunal
(Queen’s Representative and Members of Parliament Salaries and Allowances) Order 2009/04.[43] Some of those were contentious or had the potential to change existing practice, yet those matters are not mentioned in the application
for leave to appeal. All of that may be seen as throwing doubt on the submission that the 19 March 2021 judgment includes a “wrong
decision on the question of law based on ... mistaken identification and interpretation of the facts”[44] and that a “wrong interpretation of the facts leads to the wrong application of the law”[45].
(A): Error in Paragraph [34] of the 19 March 2021 Judgment
[43] Turning from those general observations to the specific points raised for the informant, the first centres around paragraph
[34] of the judgment which reads:
[34] For the 2018 General Election the dissolution of Parliament occurred on 11 April 2018 under Article 37 of the Constitution.
The General Election itself was held on 14 June 2018 and the Section 78 Declaration was issued on 28 June 2018. The Members who
became the Government and the Members of the Opposition were all sworn in as MPs by His Excellency on 5 July 2018. And as is customary,
the Members of the Parliament attended on His Excellency on that occasion.
[44] In relation to that paragraph Mr George submitted that the third (and fourth) sentences were incorrect as the only Cabinet Ministers
sworn in on 5 July 2018 were the two independent MPs and the One Cook Islands Party MP, an assertion he supported by reference to
Art 29 of the Constitution, the evidence as to when the s 78 Declaration of the successful MPs was made and the evidence as to when
election petitions filed following the 14 June 2018 General Election were determined plus the date of the summons by the Queen’s
Representative to the MPs for the subsequent term of Parliament.
[45] Though the oral evidence was equivocal,[46] Exhibits 2 and 3 covered the swearing-in of two Ministers and it is now common ground, agreed by Mr Raftery, that the third and fourth
sentences of paragraph [34] were in error and that the only persons sworn in on 5 July 2018 were Ministers Vainetutai Rose Toki-Brown,
Robert Tapaitau and, possibly, George Maggie Angene[47].
[46] But does that mistake amount, as Mr George submitted, to a “fundamental error ... using ... mistaken analysis of the ...
facts, to set him off course to cleanse the two defendants of their criminal conduct”? Should that error be regarded as having
the effect for which Mr George contends?
[4er There are a number of reasons why such a conclusion would be inappropriate.
[48] First, in a lengthy judgment[48] minor slips in recounting some of the detail are not uncommon. It was for that reason that the judgment began – as oral judgments
habitually do – with the reservation appearing in paragraph [1] which reads:
[1] Before beginning this judgment there are one or two housekeeping matters that need to be addressed. The first of those is that,
as with any oral judgment, the right is reserved to edit it, change part and add to it on editing. There are some necessary additions
– e.g. dictating footnotes disturbs the narrative of a judgment but they need to be included afterwards – and there are
always infelicitous choices of words which need to be corrected and expansions needed for clarity. So there may be different routes
to the terminus but the terminus will certainly be the same.
[49] As participants in the administration of justice, counsel, no matter whom they represent, have an obligation to point out erroneous
statements of fact in judgments. No counsel intervened during or following delivery of the 19 March 2021 judgment to correct the
oversight and no application has been filed to recall the judgment to correct the error, yet it now forms a major plank of the submissions
made on Mr Allsworth’s behalf. That may undermine the reliance Mr George puts on it.
[50] Then, paragraph [34], because it was principally concerned with Mr Tapaitau’s position, was only relevant to the charges
relating to the Penrhyn flight so could have had no effect on the charges relating to the Pukapuka flight.
[51] Thirdly, the conspiracy alleged in relation to the Penrhyn flight was pleaded to have occurred between 14-30 June 2018 so the
issue of who participated in the 5 July 2018 swearing-in ceremony was well after completion of the alleged conspiracy and was not
therefore especially relevant to whether the evidence established the elements of a conspiracy within the dates in the informations.
It was, however, relevant to the following passages in the judgment as to the rights, entitlements and obligations of MPs following
a s 78 Declaration he discussioussion concerning the Civil List Act 2005 and the 2009/04 Order. It was included for that purpose.
The error in the third and fourth sentences of paragraph [34] was therefore, evtting it at its highest fort for the informant, at
most only minimally consequential as far as determining whether the defendants had a case to answer, particularly as it related to
the Pukapuka charges.
(B): Claimed Error in Dealing with the Order and Priority of the Informations
[52] Mr George submitted that all matters relating to the Penrhyn charter flight were the prosecution’s principal case, drawing
on the numbering of the informations in support, and it was therefore an error for the judgment to deal with the Pukapuka flight
first.
[53] The pre-eminence of the Penrhyn charges may have grown in retrospect, but, even so, this point is no more than marginally persuasive
as far as the leave application is concerned for a number of reasons.
[54] The first of those is that the numbering and order of informations filed in the Court merely represents a numerical sequence
not, in principle, allied to seriousness. Even if the sequence in which Mr George handed the informations across the counter was
deliberate, it could not be argued that the filing sequence imposed on the Court an obligation to deal with them in that order.
[55] Secondly, despite some submissions seemingly to the contrary,[49] Mr George accepted that this was not a case where the evidence given in relation to the Penrhyn flight could be used to strengthen
the evidence given in relation to the Pukapuka flight or vice versa. Absent a situation where settled law dictates to the contrary
– not the case here – it is fundamental in criminal law that the evidence given in relation to any particular information
must be the only evidence used to decide whether there is a case to answer on that information.
[56] Thirdly, by contrast with jurisdictions which use indictments encompassing all the offences faced by an accused which might
imply a cascade of consideration, the Cook Islands uses no such procedure. Each information must be for one offence only[50] so there is nothing to be derived from the separate informations which implies that the various charges must be dealt with in any
particular order. In jury trials, while verdicts must of course be taken in respect of each charge, there is no requirement as to
the order in which the verdicts are taken and no way of knowing in what order the jury considered them.
[57] Fourthly, Mr George submitted no authority to suggest that the Court was obligated to deal with the informations in any particular
order. They were in fact largely dealt with in date order where it seemed logical to “clear away” the legal issues relating
to the overall matter and thus create the legal landscape against which the largely factual issues concerning the charges, particularly
those relating to the Penrhyn flight, could be more readily assessed.
(C): Texts as Evidence of Conspiracy
[58] Mr George’s submissions dealt extensively – as had his submissions at the no case to answer stage – on text
messages to and from the defendants and Mr Taipatau. That lead him to submit that the “actions and activities of both defendants
setting off the conspiracy activities were completely ignored in the judgment”.
[59] It is unnecessary to repeat the detail appearing in the judgment on this topic, or the conclusions, but it is perhaps symptomatic
of the approach to the facts adhered to by Mr Allsworth and hisorters thas that Mr George’s submissions completely omitted
reference to the contemporaneous texts and negotiations betweeTapaitau and a representative of the Democratic Party.
[60] What was also missing from from the submissions was any recognition of the fact that, after the s 78 Declaration on 28 June
2018, as recorded in the judgment[51] neither of the principal parties had a majority of the 24 seats in Parliament and thus, to be able to form a government, each had
to secure the allegiance of the two independent MPs and the One Cook Islands Party MP by entering into coalition agreements with
them.
[61] Though the detail is obviously private, the fact that such negotiations are undertaken in those circumstances is publicly known,
routine and not, of itself, conspiratorial, whether in the Cook Islands or elsewhere. In any democracy, if the electors give no party
an outright majority, negotiations between political parties follow aimed at forging a majority and thus enabling a coalition government
to be formed. That occurred following the 14 June 2018 poll, and for the informant’s submissions not to acknowledge that,
or to approach the fact that negotiations between Mr Tapaitau and the defendants took place as evidence of itself of conspiracy gave
an unbalanced slant to the submissions. That was compounded by the omission of reference to the parallel negotiations between Mr
Taipatau and the Democratic Party.
[62] As the judgment said, the fact of the simultaneous negotiations was relevant only as a background to the charges faced by the
defendants, with the nub of the discussion of those charges being whether the overall circumstances surrounding the making of arrangements
for the charter flights and, more, the payment for the same from the public purse, was shown to have created a case of possible breach
of s 280.
[63] While the text messages between Messrs Puna, Brown and Tapaitau were relevant to those questions, whether or not the defendants’
actions in the form of the texts put in evidence demonstrated a case for them to answer against the elements of s 280 also had to
be seen in the context of the texts between Mr Tapaitau and Mr Willis, the representative of the Democratic Party. Those parallel
negotiations, unremarkable in a political context, affected the inferences which might otherwise have been available from the defendants’
texts alone.
[64] Turning to the making of the arrangements for the Penrhyn flight and the payment for it, there was an allegation in the informations
that the Penrhyn flight was not a genuine non-urgent medivac flight and was an aspect of the defendants’ conspiracy. But that
was not made out in that the evidence showed that the flight was arranged on medical grounds, organised in accordance with Te Marae
Ora’s Referral Process and paid for by the Ministry of Health[52]. Certainly, one of the passengers for whom the flight was arranged was, by coincidence,[53] the unsuccessful CIP candidate for the Penrhyn seat, but the fact that there was to be a medivac flight was notified by the all-government
email[54] of 29 June 2018 advising a large number of recipients that the Ministry of Health was chartering a flight to and from Penrhyn the
following day and offering seats to any recipient who cared to book – and pay – for them. Mr Tapaitau’s travel
on that flight at public expense could not be challenged, he then being a declared MP. It may have been a convenient means for the
defendants to continue their negotiations with him in Rarotonga, but, once he was in Rarotonga, he was available to both major parties.
In the circumstances, seen in the round, all of that was not a major factor tending to proof of the elements of the s 280 charge
against the defendants as far as the Penrhyn flight was concerned.
(D): That there was no Allegation of Falsehood
[65] This matter can be dealt with briefly. Mr George’s submissions covered a number of aspects of the evidence which he submitted
demonstrated falsehood on the defendants’ part. But the passage to which he referred, paragraph [16], is no more than a recital
of the elements of s 280 winote that, although fugh falsehood can be one of the pleaded elements of s 280, none of the informations
in this case asserted falsehood. Accordingly, consider as to whether there was evidence of a breach of s 280 was was confined to
considering whether there was evidence of, as pleaded, “deceit or other fraudulent means,” not whether there was evidence
of falsehood.
(E): Notice of Overt Acts
[66] Paragraphs [22] and [23] the judgment described the Notice of Overt Acts given on behalf of the informant said to amount to
a conspiracy and noted that the formal document confined itself to recounting text messages to and from the defendants and only relating
to the Penrhyn flight.
[67] Mr George was critical of that section[55] saying other overt acts appeared in emails, the Cabinet Submission of 28 June 2018 and Cabinet Minute (18) 0164.
[68] Again, Mr George is mistaken in this approach.
[69] The Notice of Overt Acts, something required as a normal incident of criminal procedure in conspiracy cases, was in this case
expressly limited to the Penrhyn text messages so, if the usual evidential requirements of the notice had been strictly applied,
the prosecution might have been precluded from adducing any other evidence to make out the alleged conspiracies. That would have
dramatically reduced the evidence on which the prosecution could have relied. Sensibly, the defence did not seek to confine the
prosecution to its Notice of Overt Acts, raised no objection to the wealth of other evidence adduced on the informant’s behalf,
and, as a result, the formal Notice was largely disregarded during the hearing.
(F): Cabinet Submission of 28 June 2018, Cabinet Quorum, Cabinet Manual and Cabinet Minute (18) 0164
[70] These topics were extensively covered in the judgment.[56] It is unnecessary to repeat that detail. Mr George’s submissions[57] repeated his submissions on these topics at the hearing and argued that the Cabinet Submission was unnecessary, there was no Cabinet
quorum as defined by the Cabinet Manual for the reasons he advanced and that the “Cabinet Submission was invalid and should
not have been allowed to be minuted”. In his later submissions[58] his earlier submissions were amplified to submit that the Cabinet Minute did not validate the Pukapuka charter which was, in Mr George’s
submissions, unlawful and that the Cabinet Submission was a critical part of the prosecution’s evidence. These were said to
be questions of law in that the “interpretation of procedures adopted by the defendants did not follow the requirements of
the law”.
[71] It is unnecessary for present purposes to repeat, or specifically adhere to, the discussion in the judgment, particularly the
section Mr George challenged as to the signature of the Cabinet Submission by the then Solicitor-General[59].
[72] All of that discussion was described in the judgment as “tangential” because its relevance was only as appears from
the following passage:
[81] That, however, is not directly the point because, as mentioned before this exercise needed to be undertaken, the point for present
purposes is not whether the Cabinet submission and the resolution were valid – that is only of tangential interest –
the point is whether all the circumstances relating to this aspect of the matter can be taken into account in deciding whether the
prosecution has proved that the actions of the defendants were undertaken as part of their conspiracy and fraudulently and deceitfully
in terms of s 280.
[82 result of a of all of that as far as the Pukapuka flight is concerned, is that it has not been demonstrated by the prosecution
that they can show that the defendants were acting fraudulently y aspect of that matter, orr, or that they were acting pursuant to
a conspiracy, or that, if they thought they were entitled to act as they did, they were not acting pursuant to their honest though
mistaken belief as to the effect of the provisions and the evidence.
[83] On that basis therefore, and irrespective that no Overt Act said to amount to a conspiracy was pleaded, the conclusion must be
that the evidence fails to satisfy that there is a prima facie case in relation to the Pukapuka informations.
(G): Paragraphs [122] & [123]
[73] The submission that these paragraphs were factually in error, to the extent that factual errors, even if proved, might give
grounds to grant leave to Mr Allsworth to appeal, have already been addressed, and require no further discussion.
Result
[74] The result is: - (a) That there is no jurisdiction for informants to appeal to the Court of Appeal judgments of the High Court holding there is no
case for defendants to answer on informations brought against them, dismissing the informations against them and acquitting them
accordingly;
- (b) That even were there jurisdiction for the informant to appeal the oral judgment of 19 March 2021 in this matter to the Court of
Appeal, for the reasons set out in this judgment the facts and the law do not disclose sufficient basis for extending the time for
the informant to seek leave to appeal to the Court of Appeal or to make an order in the informant’s favour in that regard and
the applications for orders to that effect are accordingly dismissed;
- (c) The hearing of the leave application was in chambers. Chambers judgments are not usually made public, but the interest of the
public in the outcome of this matter is such that it may not be appropriate for the normal rule for such judgments to be followed.
Unless, within 5 working days of delivery of this judgment, counsel file memoranda arguing to the contrary, this judgment will be
released publicly, including to the media.
______________________
Hugh Williams, CJ
[1] In September 2021 Mr Puna resigned as Prime Minister and as a Cook Islands MP and is now Secretary-General of the Pacific Islands
Forum and Mr Brown became Prime Minister.
[2] Now Citizens Against Corruption Inc, an incorporated society.
[3] As may be Mr Norman George, at most times counsel for both informants; T N George undated affidavit re costs, at 11.
[4] CR 724-727/19.
[5] “Mr George” to distinguish him from Mr T N George.
[6] See Allsworth v. Puna & Brown, CRN 308-315/2020, Stay Judgment, 23 December 2020, Hugh Williams CJ, at [6]-[30].
[7] “The Pukapuka Flight”.
[8] The use of this term is explained in the judgment at [2] and [3] but needs no recital as it is not relevant to the present application.
[9] “The Penrhyn Flight”.
[10] See fn 6 supra.
[11] Judicature Act 1980-1, s 15A: s 280 has a maximum penalty of 5 years imprisonment and is in Part X of the Crimes Act 1969.
[12] Enacted by s 2 of the Judicature Amendment Act 2011.
[13] The applicant’s submissions will hereafter be referred to respectively as A (for Applicant) 1 or 2, followed by the paragraph
reference.
[14] A 2.12 (a)(b).
[15] A 2.13 (a)-(c).
[16] Also enacted by s 2 of the Judicaturndment Acnt Act 2011.
[17] Sec 3, Criminal Procedure Act 1980-81. Article 46 of the Constitution. A 1.5.39
[18] SectiSection 99(1)(h).
[19] Also enacted by s 2 of thecature Amendment Acnt Act 2011.
[20] All Court of Appeal Judges are High Court Judges: Art 56(2)(a)(3) enacted by s 7 of the ConstituAmendment ment (No.28) Act
2009.
[21] Issued 19 July 2021, at [13].
Also enacted by s 7 e Constitution Amon AmendAmendment (No.28) Act 2009.
[23] Google search, any more traditional research being impossible in the present circumstances.
[24] Such as the 5th Amendment to the Constitution of the USA.
[25] E.g. People v. O’Shea [1982] I R 384 (Supreme Court of Ireland).
[26] See Criminal Procedure Act 2011(NZ), ss 147 & 151-6.
[27] Emphasis added.
[28] E.g. Chief Justices’ refusals under s 390A(2) to make orders under s 390A of the Cook Is Act 191t 1915 (NZ) in applications
under that section.
[29] Justices of the Peace Act 2017, ss 4, 11 & 12.
[30] A > A 1.1.
[31] It was also hinted they may endeavour to appeal to the Privy Council (A 1.5.40) and it was said (A;#160;2.14(f)&(g) p 24 of
hearing transcript) that, if the group is ultimately unsuccessful in this case, a third set of informations may follow based on a
different section of the Crimes 969.
[32] A 1.2.(a)-(h).
[33] A 1.3.
[34] A 1.4.
[35] A 1.5.
[36] A 1.5.7.
[37] A 1.5.23.
[38] A 1.5(g)-(i).
[39] A 1.5.24.
[40] A 1.5.37 and 38.
[41] At [75] ff.
[42] At [84]-[98].
[43] Particularly at [99]-[115].
[44] A 1.
[45] A 2(a).
[46] E 6.
[47] He may not have been sworn in on 5 July 2014.
[48] 140 paragraphs and 36 pages of typescript dealing with 475p of evidence given over the preceding four days plus a number of legal
issues.
[49] A 1.3(c).
[50] Section 15, Criminal Procedure Act 1980-81.
[51] At [37].
[52] At [126]-[135] especially [132].
[53] Mr George’s submissions said (A 15(f)) the word “coincidence” was in the oral judgment but not in the written
transcript, perhaps implying a generous use of paragraph [1] of the judgment, but Mr George was incorrect: see [127].
[54] Exhibit 12A.
[55] A 1.5 (g)-(i) relating to Exhibits 5, 6 and 7.
[56] At [51]-[80].
[57] A 1.5(i) (6)-(23).
[58] A 2.8 and 9.
[59] A 1.5(i) (18)-(20).
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