IN THE HIGH COURT OF THE COOK ISLANDS

Misc. Nos. 21, 22, 23, 24, 25,
26, 27, 28, 29, 30 and 32/78

IN THE MATTER of elections of members of the Legislative Assembly
of the Cook Islands for the constituencies
of Te-Au-O-Tonga, Takitumu, and Puaikura

AND

IN THE MATTER of four petitions by
ARCHER VIVIAN HOSKING JNR.
of Avarua Shopkeeper
and other electors of the constituency of Te-Au-O-Tonga
such petitions being numbered Misc. 21, 22, 23, 32/78
Petitioners

AND:

LIONEL GEORGE BROWNE
of Rarotonga, Company Director
First Respondent

AND:

ALBERT ROYLE HENRY
of Rarotonga, Premier
Second Respondent

AND:

TEANUA DAN KAMANA
of Rarotonga, Planter
Third Respondent

AND:

REI JACK
of Rarotonga, Supervising Printer
Fourth Respondent

AND:

JAMES ALCIDE GOSSELIN
of Rarotonga, Chief Electoral Officer
Fifth Respondent

AND:

ROBIN MACDONALD BULLEN
of Rarotonga, Returning Officer
Sixth Respondent

AND:

IN THE MATTER of four petitions by
JOHN TUMAKA SHORT
Builder of Takitumu and other electors
of the constituency of Takitumu such
petitions being numbered 24, 25, 26 and 31/78
Petitioners

AND:

MATAPO MATAPO,
of Rarotonga, Planter
First Respondent

AND:

APENERA PERA SHORT
of Rarotonga, Minister of the Crown
Second Respondent

AND:

JAMES ALCIDE GOSSELIN
of Rarotonga, Chief Electoral Officer
Third Respondent

AND:

JOSEPH CAFFERY
of Rarotonga, Returning Officer
Fourth Respondent

AND:

IN THE MATTER of four petitions by
AHSIN NGATUAINE
of Arorangi Housewife and other electors
of the constituency of Puaikura
such petitions being numbered 27, 28, 29 and 30/78
Petitioners

AND:

JIMMY MAREITI
of Rutaki, Planter
First Respondent

AND:

RAYMOND TAPAI PIRANGI
of Aoroangi, Business Manager
Second Respondent

AND:

JAMES ALCIDE GOSSELIN
of Rarotonga, Chief Electoral Officer
Third Respondent

AND:

RICHARD JOHN RUDDELL
of Rarotonga, Returning Officer
Fourth Respondent

Dates of Hearing:
Auckland - 3, 4, 5, 18, 19 May 1978
Wellington - 11, 12, 13 May 1978
Rarotonga - 19, 20, 21, 22, 23, 26, 27, 28, 29, 30 June

Date of Determination: 24th July 1978

Counsel: P.B. Temm, Q.C., V.A.T.K. Ingram, and I. Short for all Petitioners
L.W. Brown, Q.C. and J.G. Collinge for all Respondent Candidates
B.H. Giles for the Chief Electoral Officer and the Returning Officers
D.A.R. Williams as Amicus Curiae

DETERMINATION OF DONNE C.J.

This Electoral Court has received four Petitions in respect of the election for the constituency of Te-Au-O-Tonga, four in respect of the constituency of Takitumu, four in respect of the constituency of Puaikura which were filed in the High Court of the Cook Islands pursuant to Section 74 of the Electoral Act.

Since the allegations of the Petitions in respect of each of the constituencies refer to the same alleged breaches relating to the conduct of the elections by each of the Respondent candidates, the parties by consent agreed that the Petitions should be heard together. I am therefore able in this one determination to deal with all of them.

The allegations made against the Respondent candidates and their agents were many and varied and I do not record them in extenso. The following general summary of the allegations will suffice.

1. The corrupt practice of bribery relating to free or subsidised air travel, opportunities to meet family, relatives and friends, and to receive gifts and food and the use of public moneys corruptly in connection with the said gifts.

2. The corrupt practice of bribery relating to the advance of $329,000.00 by Sir Albert Henry and his agents to other persons.

3. The corrupt practice of bribery in relation to gifts or offers to public servants.

4. The corrupt practice of bribery in respect of offers to loan money or make gifts to electors.

5. The corrupt practice of treating in relation to the provision of meat, drink, entertainment or other provision to persons who travelled from New Zealand by air on chartered aeroplanes for the purpose of voting.

6. The corrupt practice of undue influence in relation to alleged threats against voters.

7. General corruption of a widespread and general nature including the corrupt use of public money.

This summary is drawn from the Te-Au-O-Tonga Petitions but it may be applied to all of the petitions.

General Findings of Fact

Having considered the evidence in its totality, I am satisfied the following facts have been established:

Late in 1977 the Premier of the Cook Islands, Sir Albert Henry and his Cook Islands Party executive decided to seek an early dissolution of the Legislative Assembly and to "go to the country" in a General Election to be held early in 1978. Consequent upon this Dr. J. Williams, then a Member of Cabinet, formulated two memoranda incorporating a plan for the conduct of the proposed election by the Cook Islands Party, one which he intituled "Project G.E." and the other "Suggestions for E. Day". They were classified by him as "Confidential". Before the Assembly was dissolved on the 12th of January 1978, these memoranda were considered by the Parliamentary Caucus of the Cook Islands Party, Dr. Williams being required to explain them to the Members. The Premier was not present at that meeting but, he had already been supplied with copies of these documents and, on his instructions, Dr. Williams retrieved the copies after the meeting from all except the Cabinet Ministers each of whom retained his copies.

On the 12th of January 1978 Sir Albert having given consideration to the cost of the election campaign to be waged, wrote a letter to a Mr Finbar Kenny, a citizen of the United States of America being at that time in Honolulu, seeking financial assistance for the campaign. Mr Kenny (and his company The Cook Islands Development Company Limited) and the Cook Islands Government are partners in the joint venture project known as the Cook Islands Philatelic and Numismatic Bureau. In his quest for finance Sir Albert advised Mr Kenny that his Party proposed to seek aircraft for charter to carry his party supporters to Rarotonga to vote. That letter was handwritten and was delivered in Honolulu to Mr Kenny by the Honourable Mr G.A. Henry. In the result Mr J.W. Little who is Mr Kenny's representative in Rarotonga and the Managing Director of the Cook Islands Development Company Limited received instructions in January to make available an advance against the Philatelic Bureau revenue. The basis for this advance will be considered later in this determination.

Being assured of finance, Sir Albert Henry travelled to New Zealand by aircraft on the 25th of January 1978 for the stated purposes of a health check and consultations with New Zealand authorities on proposed international fishing agreements. While in New Zealand he took the opportunity of addressing Cook Islanders in Tokoroa, Wellington and Auckland. His first meeting was in Tokoroa. It was chaired by Mr Charles Eleazara, a coordinator for the Cook Islands Party in that town, and among the topics raised by Sir Albert was the provision of free plane flights to Rarotonga for voters. From Tokoroa, Sir Albert proceeded to Wellington where in the course of his talks he was advised of an application to permit the landing at Rarotonga Airport of two charter flights by Air Nauru aircraft, the charters being organised by the supporters of the Democratic Party. On the 30th of January 1978 he addressed a meeting of Cook Islanders at Porirua during the course of which he told his listeners of his plans to charter aircraft to fly voters to the Cook Islands free of charge. Sir Albert, who was accompanied by his son and daughter, Mr Hugh Henry and Mrs Graham, Mr Charlie Carlson a Cook Islands Party executive from the Cook Islands, and his physician Dr Koteka, then returned to Auckland where on the 3rd of February 1978 he addressed a meeting of Cook Islanders at Freemans Bay. Again the intention to provide free flights was explained by him to the audience.

Sir Albert returned to Rarotonga on the 3rd of February 1978. It seems clear that on the New Zealand trip he had succeeded in organising campaign committees and organisers. In Tokoroa the party organiser was Mr Eleazara, in Wellington Messrs. Sam Samuel and Turi Karati were chosen, while in Auckland Messrs. Charlie Strickland, Vaka Akatika, Tapa Ford, Tiario Tuki and Umeki Teaupaku constituted an organising committee. They were to be joined later by Messrs. Charlie Carlson and Mata Taruia from the Rarotongan branch of the Party.

Sir Albert with his wife again left Rarotonga on the 8th of February 1978 on a trip which took him to New Zealand, Melbourne, and Honolulu. The fares amounting to $5,730.00 were paid in cash which Sir Albert had received by way of an advance from the Philatelic Bureau. He had also received personally on the previous day from the Bureau the sum of $2,500.00 which I infer was to cover his personal expenses for the trip. In Melbourne Sir Albert t arranged with Ansett Airlines of Australia to charter 3 Boeing 727-200 aircraft to operate 6 return flights from Auckland to Rarotonga for the purpose of transporting voters to the poll at Rarotonga. The quoted charter fee was A$290,000.00. No written agreement was completed as it was necessary for further details to be finalised. Mr Little accompanied Sir Albert to Melbourne, but took no part in any of the negotiations relating to the chartering of aircraft. From Melbourne the party proceeded to Honolulu where Sir Albert reported to Mr Kenny the result of his Ansett negotiations after which he returned to Rarotonga on the 18th of the month and announced on his arrival that he had secured the aircraft.

The Cook Islands Party opened its political campaign at Rarotonga on the 27th of February 1978. All the candidates (in particular the Respondent candidates in these proceedings) were present. At this meeting Sir Albert announced the plans to send Mr. Charlie Carlson and Mr Mata Taruia to Auckland to "help our people who are coming by plane to vote". Mr Carlson also spoke announcing that "this man is flying to New Zealand on Wednesday to prepare those people in New Zealand who are ready to come to Rarotonga and vote C.I.P."

On the 6th of March 1978 a private company called Cook Islands Government New Project Company Limited was incorporated at Rarotonga under the Companies Act 1970. It had a capital of $1,000.00 divided into 1000 shares of $1.00 each, 999 of which was subscribed by the Cook Islands Government Property Corporation a Government statutory corporation of Rarotonga, and one share being subscribed by a Mr. Charles Maxwell Turner who at that time was employed as an assistant to the Advocate General. The directors of the company are Sir Albert, Messrs. G.A. Henry, G.F. Ellis and A.P. Short all of whom are members of Sir Albert's Cabinet. Sir Albert has said in evidence that all the share capital was in fact paid by him. In this event, such payment would create a debt due to him by the Cook Islands Government Property Corporation and Mr Turner, the shareholders of the company. The Memorandum of Association of the new company was executed on the 3rd of March 1978. On the 24th of February 1978 Sir Albert requested from the Philatelic Bureau an advance to Government of $4,000.00 for the purpose of establishing this company. This sum was duly advanced and it is highly probable it was in part applied by Sir Albert in payment by him of the share capital of that company. The next payment step in the history of this company is the opening of an account in its name by Mr C.M. Turner with the Commercial Bank of Australia at Queen Street, Auckland, New Zealand. On the 10th of March an initial deposit of $200.00 was lodged in the account.

On the 13th of March 1978 Sir Albert as Premier of the Cook Islands, wrote to the Director of the Philatelic Bureau as follows (It should be noted the Director is Mrs G. Little, the wife of Mr J. Little):

"OFFICE OF THE PREMIER OF THE COOK ISLANDS
Rarotonga, Cook Islands

13 March 1978

The Director
Philatelic Bureau
RAROTONGA

Dear Madam,

Further to my letter of 24 February 1978, the Cook Islands Government New Projects Company Ltd, wishes to assist in the financing of a major project for the Cook Islands. Substantial finance will be required and I would be pleased if you would forward to me a cheque in external funds for $NZ327,000 made out to the above company.

This sum of $NZ327,000 is to be regarded by the Philatelic Bureau as an advance to the Government of the Cook Islands against 1978 philatelic revenue that will become payable to the Government.

Yours faithfully
A.R. Henry
Premier"

On receiving the cheque and being aware of its amount which was $337,000, not $327,000 as mentioned in the said letter, Sir Albert probably as a result of advice he had received from his solicitors in Auckland, arranged for a cheque payable to himself drawn on the account of "Cook Islands Government New Projects Co. Ltd" to be signed by Mr G.A. Henry and Mr A.P. Short who were by authority given on behalf of the company dated the 7th of March 1978 authorised to draw cheques on that account. Mr Short acknowledged the enormity of his task in his farewell speech to Sir Albert at the Rarotonga Airport when the Premier was departing for Auckland on the 14th of March.

The next day in New Zealand, the 16th of March 1978 (New Zealand time) Sir Albert paid into the account of the Cook Islands Government New Projects Company Limited the cheque for $337,000 he had received from the Philatelic Bureau. I am satisfied that Sir Albert in doing what he did was giving effect to a scheme which had been devised in Rarotonga with Mr Turner and I shall consider this aspect later. It is probable that Mr Collinge the legal advisor for the Cook Islands Party, was unaware of the plan until he was apprised of it by Mr Turner on his arrival in Auckland on the 7th of March 1978.

Sometime before the 14th of March 1978, Mr Turner and Mr Collinge gave consideration to certain provisions of the Public Moneys Act 1969 and were inclined to the view that they could apply to the transactions planned involving the Cook Islands Government New Projects Company Limited. On the 14th of March Mr Turner sought an opinion thereon from Mr D.A.R. Williams a well known Auckland barrister from whom the Advocate General had frequently sought advice. It should be recorded that Mr Williams was not given details of the planned transactions but was simply asked for his advice on the narrow question of whether the Public Moneys Act would apply to funds held by the Cook Islands Government New Projects Company Limited. Mr. Williams discussed the matter with Mr Turner on March 14th and later on the 16th of March recorded his opinion in writing expressing his view that this company was by virtue of its shareholding in effect an agency of the Cook Islands Government, that any money handled by it was public money, and that the provisions of the Public Monies Act 1969 and in particular Part IV thereof, to which reference will also be made later, applied.

The position on the 16th of March 1978 was that the Ansett charter arrangements were completed and the money for the charter was to be paid to the Ansett account at the Australia and New Zealand Bank, Auckland Branch on or before the 20th of March. Mr Glasgow deposed, and I accept his evidence, that while the written agreement made on the 21st of March 1978 fixes a date for payment on the 22nd of March there had been an earlier agreement for payment on the 20th. The Philatelic Bureau cheque for $337,000 had been paid into the New Projects Company account. Mr Williams' opinion was received. On that day also the Ipukarea Development Company Limited with a capital of $100.00 was formed, the shareholders being Messrs. Charles Strickland, Hugh McCron Connal, Teremoana Pamatatau and Munakoa Samson each subscribing to 25 shares of $1.00 each. The company was to be registered next day by Mr Collinge.

The implications of Mr Williams' opinion and the progress of the scheme was on that day discussed by Sir Albert with Mr Collinge, Mr Turner and probably others and I have no doubt that it required revision as a result of the view of the lawyers as to the effect of the Public Moneys Act 1969 thereon. It is also probable that when the possibility of that Act's applicability was first mooted, it was decided as a precaution to obtain in Rarotonga the cheque from Messrs. Henry & Short to which reference has already been made.

The next day the 17th March 1978 as a result of the discussions the previous day, Sir Albert lodged the cheque for $335,000 drawn on the Cook Islands Government New Projects Company account in an account which he opened in his own name at the Bank of New South Wales. Mr Turner on the same day made arrangements with the Australia and New Zealand Bank, Auckland Branch, to open an account in the name of Ipukarea Development Company Limited and deposited a cheque for $335,000 drawn by Sir Albert on his newly opened account with the Bank of New South Wales, Auckland Branch.

An extension of time for payment of the charter fees having been granted by Ansett Airlines, a formal agreement in writing was entered into on the 21st March 1978 under which Ipukarea Development Company Limited agreed to pay to Ansett Airlines next day $A290,000 for which the latter was to provide six return flights to Rarotonga, four on the 26th March and two on the 30th March (New Zealand time).

On the 22nd March 1978 a cheque drawn on the Ipukarea Development Company Limited account was paid to "A.N.Z. Bank (for account Ansett Airlines Australia)" and was signed on behalf of the company by "C. Strickland" and "T. Pamatatau". The cheque was for $323,639.90 which was apparently the New Zealand equivalent of the Australian charter fee of $A290,000 plus the appropriate draft fee. The Reserve Bank of New Zealand on that day approved of the transfer to Australia of the amount paid.

Meanwhile in Tokoroa, Wellington, and Auckland the Cook Islands Party organisers and committees had been organising the flights to Rarotonga. In late February or early March it had been decided by the Party that there should be a sum of $20.00 paid by those who went on the flights. This was to be a charge for the food and drinks supplied on the journey. In all other respects the flight was to be provided free of charge. The news of these free flights around the Cook Islands communities and the requests for consideration as passengers were numerous, meetings were held in Tokoroa under the direction of Mr Eleazara, and also in Wellington chaired by Mr Turi Karati and Mr Sam Samuel. These three gentlemen undertook the task of organising the flights in their respective areas. In Auckland, Mr Charles Strickland, Mr Sam Crummer, Mr Charlie Carlson, Mr Mata Taruia, Mr Tapa Ford, Mr Vaka Akatiki and Mrs Parau Taruia appear from the evidence to be the persons mainly concerned with arranging the flight lists. These activities which are the subject of further findings by me recorded below resulted in the six planned Ansett flights taking place as arranged. At the Auckland International Airport on the flight days were the Auckland organisers for the Cook Islands Party who had prepared boarding lists for the flight. As each passenger came forward on the calling of his name, he was given a pass worded as follows:-

"No.

COOK ISLANDS PARTY

Name:

Plane: 1, 2, 3, 4, 5, 6

Paradise Tours.		Auckland - Raro - Auckland"

The six flights brought to Rarotonga 445 voters who are known to have voted in the three constituencies with which we are concerned - 308 voting in Te-Au-O-Tonga, 77 in Takitumu and 60 Puakura. Some others from the planes apparently voted in other constituencies.

The evidence also establishes that there were two charter flights of Air Nauru aircraft which brought voters to Rarotonga. These were arranged by Cook Islanders living in New Zealand who supported the Democratic Party. In each case the full charter fare of $245.00 was paid for by the passenger.

On the 30th March 1978 the General Election was held resulting in the Respondent candidates being elected in their respective constituencies.

In so far as the scheme to "fly-in" voters is concerned, I have no doubt that the Respondent candidates were aware of all aspects of it. They knew that it involved electors from New Zealand flying in chartered aircraft each being required to pay $20.00 only in relation to such flights. They were also aware that the leader of their political party, Sir Albert Henry, was assuming the main responsibility for arranging the necessary finance for the project and for the setting up of the requisite organisations and organisers to select the passengers for each flight, and they each agreed to leave those tasks to Sir Albert and those chosen by him to bring the project to fruition. They were aware that the flights were being made available only to the supporters of the Cook Islands Party. In fact, the whole scheme relating to the "fly-in" voters was revealed by the Premier at various political meetings at which all the Respondent candidates were present. They never disassociated themselves from it. They without a doubt accepted this scheme and in the very nature of it they were the beneficiaries at the Polling Booths because of it.

The Aircraft Charter Scheme:

The main allegations contained in the petitions are those of bribery, treating and general corruption. I propose to deal separately with these complaints but, before I do so I give consideration to the point raised by the Petitioners as to the reason for the decision of the Cook Islands Party to charter the aircraft. The Petitioners say that the chartering of the aircraft was part of the Party's election campaign plan which was formulated by Dr. Williams and that as this was so, this fact can with the other allegations, support a finding of corrupt motive.

The Respondent candidates’ evidence is that the move was prompted by the information received that the Democratic Party was sponsoring two charter flights. Sir Albert Henry at page 79 (lines 17 - 20) of the Notes of Evidence is recorded as saying in answer to his counsel's question:

"Q. I want now Sir Albert to bring you back to the point from which I asked you to digress. You had reached a point where you had returned from Wellington to Auckland and told your supporters that you would endeavour to get the plane.

A. Yes and only then did I think about it and it was getting pretty late."

Sir Albert had previously said that while in Wellington the Civil Aviation Department had advised him that an application had been made to land two flights at Rarotonga of Air Nauru aircraft. I am satisfied that the decision by the Cook Islands Party to charter aircraft for its own supporters had been taken much earlier than this. Sir Albert had told Mr Kenny in his letter to him in early January of his intention to obtain aircraft (see Notes of Evidence page 80 Lines 10 - 4 to 25 - 6). Indeed, the proposal (as opposed to the details of it) was known in New Zealand before his visit there late January. In his address in Tokoroa before his visit to Wellington he mentioned it. Turning to the memoranda of Dr. Williams, I was referred to the one intituled "Suggestions for E Day" and in particular to Section F thereof reading "Cook Islanders in New Zealand must vote". In that section he recommends the chartering of aircraft and stresses the need to bring Cook Islanders from New Zealand as they "will influence the outcome of the election". He also emphasises that "we must ensure that we bring only those people who will vote for us" and that "those voters must be told the party candidates they must vote for". This memorandum was prepared approximately at the end of December 1977. The motive for preparing it is, I feel, expressed in paragraph 7 on page 5 thereof which reads:

"The future of the Cook Islands Party is dependent on the election. If we win the Party will live forever, if we lose the Party is dead."

Now, this memorandum together with the other intituled "Project CE" was considered by the Cook Islands Party Caucus and the Premier in early January 1978. It is relevant to note that in the former document are other suggestions:

(a) The need for the Premier to go to New Zealand for a routine medical check taking with him a strong team for meetings in various cities through the Cook Islands society.

(b) Arrangements for T Shirts, poster printing etc.

(c) The need to announce within a week the increases in salaries and wages.

(d) The establishment of a Young C.I.P. Movement.

It was suggested that it was a mere coincidence that these and other steps recommended in the memorandum were in fact carried out. I cannot accept that and when consideration is given to the speech of the Honourable Mr Akaruru at the final campaign meeting of the Cook Islands Party on the 28th March, I am drawn to the conclusion that the Williams' suggestion concerning the chartering of aircraft to bring voters from New Zealand to the Cook Islands was incorporated by the Cook Islands Party organising committee as part of the Party's campaign from the beginning. After quoting from the Williams memorandum which he had and, in particular, Section F which refers to the flying in of voters, Mr Akaruru said:

"Dr Williams, why very quickly forget your proposal to the Cook Islands Party organising committee. To go back and criticise for we have done exactly and according to what you have suggested."

These words I consider admit of no other interpretation than that the Cook Islands Party organising committee had adopted the Williams' suggestion.

Bribery:

As has been said in the Mitiaro decision just read, the common law definition of "bribery" is no longer applicable in the Cook Islands (see page 35 thereof). The statutory definition must therefore be considered, the applicable provisions in this case being Section 69(a) which reads:

"Every person commits the offence of bribery who, in connection with any election:

(a) directly or indirectly gives or offers to any elector any money or valuable consideration or any office or employment in order to induce the elector to vote or refrain from voting."

The law as to the provision of travelling expenses for a voter is summarised in Halsbury's Laws of England 4th Edition, Volume 15, para. 770 at page 421:

"The unconditional payment, or promise of payment, to a voter of his travelling expenses is not bribery, but the payment or promise of payment to a voter of his travelling expenses on the condition, express or implied, that he would vote for a particular candidate is bribery."

The leading case on this topic is Cooper v Slade (1858) 6 H.L. Cas. 746; 10 E.R. 1488. This case concerned an allegation of bribery under the statute 17 & 18 Vict. c102 Section 2 which provision is substantially in the same terms as Section 69(a) of the Electoral Act 1966 (supra). The allegation arose out of a letter which was sent to a voter in the following terms:

"Sir - The Mayor having appointed Wednesday next for the nomination, and Thursday for the polling, you are earnestly requested to return to Cambridge and record your vote in favour of Lord Maidstone and F. W. Slade, Esq., Q.C.

Yours truly
Charles Balls
Chairman
Your railway expenses will be paid."

The voter accordingly went to Cambridge and voted. Afterwards he received the sum of eight shillings, the expenses to which he had "bona fide" been put by his journey. The Court held that the promise and payment constituted bribery. On page 780 (lines 8 - 17) Wightman J. said:

"If the words of the section are taken literally, a promise of money to a voter to induce him to vote at an election, though without specifying or intending that he should vote for a particular candidate, would be within the definition of bribery in the second section; but giving a reasonable construction to the Act, it must, I apprehend, be understood to mean, that to constitute the offence of bribery the promise must be to induce the person to whom the promise is made to vote for a particular candidate."

At page 782 (lines 13 - 18) Coleridge J. stated:

"This, then, was a promise of money in order to induce a voter to vote; and whether the payment of travelling expenses, per se, be legal or not, I am clearly of opinion that to promise to do so, in order to induce a voter to vote, is within the second section of the statute."

Lord Cranworth in his judgment page 786 (lines 3 - 20) said:

"On the first point, I confess that, though undoubtedly from the earliest time of my recollection this has been a matter under discussion, I never have been able to entertain any doubt but that the giving of money to a person to come and vote for a particular candidate at a particular election is giving to him money within the meaning of this section, and within the meaning of previous sections which are to the same effect as the present. The section is, "That every person who shall directly or indirectly give any money to any voter in order to induce the voter to vote or refrain from voting, shall be guilty of bribery." Now surely, if I say to a person, "If you will come to Cambridge and vote for me, I will give you money, being the amount of whatever expenses you may pay for coming there to vote", that is giving money to the voter for the purposes of inducing him to vote, it is giving money to him to indemnify him for something which, but for giving the money, he would have to pay out of his own pocket."

Lord Wensleydale stated at page 790 (lines 1 - 7):

"I had no difficulty in giving my opinion as to the construction of the Act; I thought that, according to the meaning of the Act, a promise of a sum of money, although that money might be only the fair and reasonable expenses of the voter coming to the poll, if made in order to induce any voter to vote, or refrain from voting, was within the Act of Parliament."

and again at page 791 (lines 4 - 13):

"With respect to the first proposition that was laid down, that every payment of expenses, though fair and reasonable, to a voter in order to induce him to vote, that is, every payment upon condition expressed or implied that he should be paid his expenses if he voted for a particular candidate, is bribery within the meaning of the Act of Parliament, appears to admit of no doubt at all; and there has been no difference of opinion upon it anywhere. The Judges of the Court of Exchequer Chamber were all of that opinion."

In an Australian case, Woodward v. Maltby 1959 V.R. 794 concerning a section in the Constitution Act 1956 of Victoria also of similar wording to Section 69(a) of our Act Smith J. said at page 798 (line 48) to page 799 (line 7):

"It would be surprising to find in such section that something is made to amount to bribery which does not involve any intention to buy a vote, or to buy that approval and goodwill which may influence a vote…. Before the section should be held to apply here it should be shown that there was an intention to induce voting for the candidate, or to induce approval or gratitude towards the candidate and thereby to influence electors to vote for him or to refrain from voting against him, and an intention to produce those results by means of the gift as distinct from the advertisement on it."

See also the Horsham Case (1876) 3 O’M & H. 52.

In the case here the bribery primarily alleged is that of giving of the flight to Rarotonga and return to each of the electors so transported for $20.00 for the purpose of inducing the elector to vote for the Cook Islands Party candidates, the Respondent candidates. To sustain this allegation there must be proved to the requisite standard by the Petitioners:

(a) The giving of the consideration.

(b) That the consideration was valuable.

(c) That it was given to induce the voter to vote for the Respondent candidates and that it was given on the express or implied condition that the Voter would vote for such candidates.

(d) That the intent to do this was corrupt.

It is not necessary for the Petitioners to prove that the elector did in fact carry out his part of the bargain by voting. If the act of giving the consideration is done for the purpose of inducing the voter to vote or refrain from voting for a particular person, it is no answer to say that the bribe was unsuccessful. In Henslow v. Fawcett (1835) 3 Ad. & E. 51 at 58; 111 E.R. 331 at 334 (lines 7 - 14) Patteson J. said:

"It appears that the defendant sought the voter, out, and gave him money for the purpose of inducing him to vote, and that the other took it. At all events, whether the voter did or did not mean to perform the contract, he professed to enter into it, and took the money given by the defendant for the purpose of corrupting him. In the second place, if he never had such an intention, I should still hold the defendant liable. Whether or not the voter intended to perform his part of the contract is immaterial; the defendant had done all that lay with him. If the agreement was made, that is enough."

See also Harding v Stokes (1837) 2 M &W 233 at 235; 150 E.R. 742 at 743 and Sulston v. Norton (1761) 3 Burr 1235; 97 E.R. 807 at 808.

I now propose to analyse the evidence of the activities relating to the organising of the Ansett flights in the three areas in New Zealand with which we are concerned, Wellington, Tokoroa and Auckland.

As to the requirements (a) and (b) above, there is no dispute by the Respondent candidates that each voter was given the f light for $20.00. The evidence establishes that a normal return flight fare was at that time $328.00. The charter rate paid by those who travelled on Air Nauru was $245.00. A flight for $20.00 did indeed represent a giving of valuable consideration to the extent of at least $225.00 and I hold the elements of proof (a) and (b) have been established.

As to the first part of (c) i.e. the question of an inducement, the tenor of the evidence of those witnesses called to depose on this point is such that I have no doubt that they were induced to undertake the trip to vote because of the "free" flight. Some of these witnesses have stated this. But apart from this direct evidence, the transaction itself, emanating from the Cook Islands Party, by its very nature supports the contention that was intended to induce the elector who benefited from it to vote. For the sum of $20.00 he was to receive transport in a large aircraft for the considerable distance of 1,874 miles to his homeland. It is true there was a guarantee of a stopover of no more than possibly 2 hours before returning but, there was the prospect of seeing friends and relatives, the eating of traditional food and the participation in the festivities that go with it. It added up to a day of excitement for $20.00. When measured against the proven charter fare paid by others from New Zealand who were determined to exercise their franchise to the extent of paying the full fare therefor, the consideration here was indeed large. In the case of those who paid the full charter fare the cost to them to vote was $245.00 and in the case of those who benefited from the Cook Islands Party’s scheme the cost to each was only $20.00, although if those who actually voted had shared the cost of the full charter fee of the Ansett planes, it would have cost each over $800.00. Apart from the payment of the $20.00 the voter was involved in little effort or sacrifice other than the placing of a cross on a voting paper. That the transaction was an attractive one is borne out by the fact that while many applied only a comparatively selected few were chosen to benefit from it. These circumstances lead me to the firm conclusion that the scheme was indeed aimed to induce the persons benefiting from it to vote and as such it was a step in the transaction "of a very dangerous character; it brought the parties to the very verge of the law"- Longford Case (1870) 2 O'M & H. 6 per Fitzgerald J. at 15.

There being an inducement I pass to the second part of (c) which is the crux of the matter: i.e. whether there was an express or implied condition that the electors given the free flight would vote only for the Cook Islands Party candidates. I accept the uncontradicted evidence of Mr Cuthers on this point. He said in the New Zealand evidence at page 58 (line 33) to 59 (line 18) as follows:

"Q. Still talking about this meeting 3 days before flight was there any talk about who you would vote for when you got to Raro.
A. Yes there was something said I asked him how do we vote because I have never voted before so they got out card or piece of paper and drew on it 4 little squares with names of who we were to vote and showed us how to mark off the votes and showed everybody round the room.
Q. Did you see names on piece of paper.
A. Yes I did.
Q. Do you remember names.
A. Yes Albert Henry, Tenaua Kamana, Lionel Brown and Rei Jack.
Q. Did you know those names yourself.
A. Yes I knew 3 of them but one I did not know who he was.
Q. Who was one you did not know.
A. Rei Jack
Q. Did they say anything else about 4 names.
A. Yes they said we must vote for those 4 and nobody else.
Q. Who were four
A. Albert Henry
Q. What was political connection
A. CIP
Q. Was anything said about what would be position if you voted for someone other than those four.
A. Yes
Q. Who was speaking, where was he
A. Sam Samuel was standing right in front of me
Q. How far away
A. About 3 ft away from me when he said if anybody voted for demo they’d find out and fine person who voted for demo would have to pay $300 for the fare.
Q. That was meeting 3 days before you flew
A. Yes

Furthermore, on the trip to Rarotonga he told me of the reading over the aircraft loudspeaker system the names of the Cook Islands Party candidates. He fairly stated that the announcer, Mr Karati, had said that he had been requested by some to tell who these candidates were, but, the matter went further than that. At page 60 (lines 4 - 17) Mr Cuthers is recorded as saying:

Q. While you were on plane were there announcements made over loud speaker
A. Yes there was announcement made by Papa Turi Karati over the intercom
Q. What was announcement made
A. He said we had to make sure that we voted for the Te-Au-O-Tonga CIP candidates which were Albert Henry, T. Kamana L. Brown and Rei Jack.
Q. That tells us who CIP candidates were but did he give their names in the announcement
A. Yes
Q. Did he say anything else about this subject
A. After he had spoken on intercom he and Sam Samuel some other delegates wrote out on small piece of paper the four names of the candidates who we were to vote for which had four names of CIP candidates.
Q. Did you see any of these pieces of paper yourself.
A. Yes one was handed out to me and my mate."

While the motive of announcing the candidates' names over the speaker system of the aircraft to all passengers because of the inquiry of only some is questionable, it may in a measure be so explained as negating an improper intent, but, to distribute generally around the plane, the names of the Cook Islands Party candidates only is, in my view, the strongest evidence to support a conclusion that was intended to ensure that the voters voted only for those candidates.

The condition to vote for Cook Islands Party candidates was certainly taken seriously by Mr Cuthers who said at page 60 (line 26) to page 61 (lines 1 - 4):

"Q. Did you vote for CIP or not
A. Yes I voted for Albert Henry, Teanua Kamana, Lionel Brown and Tom Davis
Q. Tom Davis is not CIP is he
A. No
Q. Was there any particular reason why you should vote for leader of Demo and 3 CIPs
A. Well on that occasion I was gambling
Q. Yes what was your gamble
A. I was gambling if I voted for 3 Cook Island Party and one Demo they would not notice
Q. Who would not notice
A. Cause Sam Samuel had said if we had voted for Demo we would have been fined or pay the amount of $300
Q. So what was gamble
A. The gamble was I took 3 CIP and one Demo hoping I would not have to pay $300
Q. Tell us why you were hoping you would not have to pay $300
A. Because I am not Cook Island Party supporter
Q. If you are not CIP supporter why did you vote for 3 of them
A. Because I was scared and to pay $300"

It should be noted that the Wellington organisers of the flight Mr Sam Samuel and Mr Turi Karati were each found guilty on the 13th day of June 1978 of the offence of bribery under the said Section 69(a) on a complaint involving Mr Cuthers and another witness Miss J. Pokoati.

After a careful weighing of Mr Cuthers' evidence and the evidence of Miss Pokoati, Mr Arai and Mr Pokoati, I am convinced that in the case of the Wellington electors it was a condition laid down by the Cook Islands Party organisers that in return for their being given this flight to Rarotonga they each should vote for the Cook Islands Party candidates in the constituency with which they were concerned. I am also satisfied that the Wellington organisers for the Cook Islands Party took every precaution to ensure that only those who would accept this condition were allowed to fly. If I required further fortification for this finding I need but turn to the record of the speech by Mr Sam Samuel at the final election rally of the Cook Islands Party at Rarotonga on the 28th March 1978 at which he said:

"It was said that of the 270 voters for Te-Au-O-Tonga that arrived on Saturday 203 were for the Demos and 67 for us.
Who said so? Who looked for the voters coming?
Was it the Demos or me?
I spent seven nights in Auckland.
I was up day and night, day and night.
I, Mata Taruia and his wife, Tutini and Mama Pepe.
We were awake day and night, day and night and no sleep.
When sleeping we just sit upright in our chairs.
Here are the names obtained on that.
Ours Porirua and Lower Hutt their names.
190 votes Cook Islands Party for Te-Au-O-Tonga.
How did they get Ansett?
Those that came on that plane are people of mine from Mitiaro, Mauke, Te-Au-O-Tonga.
Others belong to this CIP behind here. For Rei Jack.
We did not want those who called themselves CIP.
We were annoyed.
We've had enough.
In Porirua we commenced with 250 people on our list.
We crossed out and deleted those that would split the vote.
Those that we were not too sure of totalled one hundred and fifty.
Wellington then will make up the balance."

In Auckland, there was also close scrutiny of those seeking flights. Mr Mata Taruia, who with Mr Charlie Carlson was sent to Auckland from Rarotonga, to help organise them said at a meeting of his Party at Constitution Park on 1st March 1978:

"….Here is your son to be sent on Tuesday to do that work, that is victory. I will take the screen, when I clean the screen not even a grain of sand will be able to come through. Our members are to be screened."

Mr Charlie Strickland the Auckland President of the Party, in a television an interview at the Auckland International Airport on 25th March 1978 said:

"Q. How can you be sure that all will vote for the Cook Islands Party?
A. Well - I am pretty sure they will they are going to vote for the Cook Islands Party - ah - because they are all - ah - Cook Islands Party voters.
Q. They are all members are they?
A. Oh yes! They all members of the CIP."

Mr Charlie Carlson also gave an interview at the Airport to a reporter Mr T. Verdon whose report of the interview appeared in the New Zealand Herald of the 27th March 1978:

"Each flight yesterday carried out 130 voters, said one of the three Cook Islands Party organisers, Mr C. Carlson.

The voters had to show a special CIP card attached to their ticket, with details about their electorate, before boarding the plane.

They had been carefully screened by party organisers to ensure they were in fact supporters.

Mr Carlson said the lists had been studied for two weeks and the organisers knew practically every voter personally. Voters resident overseas must return to the islands to vote in the week allowed.

"We are fairly sure that 100 per cent of them are CIP supporters" he said.

Good Faith

However, he agreed the party was relying on their good faith to vote for the CIP.

"Even if 95 per cent of them vote for the party it will be all right," said Mr Carlson.

He said he was confident the party would win the election, even without the special votes, but it could not stand idly by while the opposition organised flights."

Mr Tu Ford explained in his I evidence the procedure followed in his case when he sought to be chosen for the flight to Rarotonga. At page 18 of the New Zealand evidence (lines 1-48) he said:

"Q. After you spoke with Tere Tuakura about this airplane flight what did you you (sic)
A. I went over and paid my fare
Q. Whereabouts did you go to pay that fare
A. Hall Avenue Mangere
Q. Who did you pay when you went to Hall Ave Mangere
A. I paid it to Parau
Q. Do you know this person called Parau
A. Yes
Q. Do you know her surname
A. No
Q. How much did you pay Parau
A. $21
Q. And what was that payment for
A. $20 for fare and $1 for fee
Q. What was fee he paid $1 for do you know
A. Yes I know for the badge
Q. When you paid this money to Parau did she have a discussion with you
A. Yes
Q. What did she say to you
A. She asked me if I was a Party
Q. What did you say to her in answer
A. I said to her yes
Q. Did she say anything else to you then
A. Do I know who I was going to vote for
A. No
Q. When you said No what did Parau do
A. She wrote all the names of the people that I have to vote on a piece of paper
Q. I want to show this piece of paper
A. Yes
Q. Is that the piece of paper which Parau wrote those names on
A. Yes
Q. The names on that piece of paper are those names Parau wrote for you.
A. Yes
Q. The crosses that appear next to those names were those crosses written by Parau also I’m sorry who wrote those crosses next to those names
A. Parau
Q. Would you please read out the names appear on that paper
A. Lionel Brown Albert Henry, Dan Teanua Kamana and Rei Jack
Q. ………Exhibit 22.........."

And in cross examination of his evidence that he had been excluded for the flight at the Airport he said at page 19 (lines 17 - 26):

"Q. Mr Ford are you Demo party supporter
A. Yes
Q. Is Tapa Ford your uncle
A. That's my old man
Q. And is Tapa Ford a Cook Islands supporter
A. Yes
Q. Did he object to your going on a Cook Islands Party plane
A. Yes
Q. Did you lead Parau to believe that you were a Cook Islands Party supporter
A. Yes."

As to the organisation in Tokoroa it is clear that the organiser Mr Eleazara had in fact carried out close scrutiny of those who were to travel on the planes when considering the applications. I refer to the following evidence:

Page 73 lines 20 - 4 to 25 - 4;

Page 74 lines 15 - 2 to 20;

Page 75 lines 1 - 3 to 10 - 3, lines 20 - 2 to 20 - 6;

Page 76 lines 20 - 5 to 35.

He was also interviewed by a reporter of the Tokoroa Newspaper. In that he states the manner in which the persons were chosen - see Exhibit 18. This evidence leaves me in no doubt that only those who would vote for the party were chosen and that it was undoubtedly a condition of the flight that the people chosen would vote for the respondent candidates.

The statements of the Auckland organisers as to scrutiny of those who sought the Ansett flights to ensure that only those supporting the Cook Islands Party candidates travelled on them and the evidence of Mr Ford illustrating how the aim was put into practice, satisfies me that the aims of the Auckland organisers in providing the inducement of these flights like that of their colleagues in Wellington and Tokoroa was to induce those obtaining them to vote for the Cook Islands Party candidates in the constituencies of Te-Au-O-Tonga, Takitumu and Puakura and this was a condition of their participation. Although I think it is very probable that each voter was told explicitly that they must vote for the Cook Islands Party candidates only, it is not necessary for me to make such a finding since I am quite satisfied, in view of all the surrounding circumstances, that there was in each case an implied condition to this effect. I am satisfied therefore that this part of element (c) has been established also.

As to the element (d) to be proved i.e. the corrupt intention, in the Mitiaro decision I referred to the interpretation of that expression. (See page 13 referring to Rogers On Elections 20th Edition, Volume II hereinafter in this Determination called "Rogers", and Adams Criminal Law and Practice in New Zealand 2nd Edition, para. 821 pp. 234; Cooper v. Slade (1885) 6 H.L. Cas. 746; 10 E.R. 1488; Wairau Election Petition (1912) 31 N.Z.L.R. 321, 326). The evidence above referred to, in my view, must result in the inescapable conclusion that the "fly-in" voting plan of the Cook Islands Party was purposely effected to induce electors to vote for Cook Islands Party candidates. The plan affected all those electors who availed themselves of the Ansett Flights. If further evidence be needed to establish this intention reference need only be made to the purpose of the plan as outlined in Dr. Williams' "Suggestions" which were adopted by the Cook Islands Party organising committee. Furthermore, the wording of the Boarding Pass above referred to, which was handed to each of the travellers before they boarded the aircraft allows the strongest inference to be drawn that the flights were only for Cook Islands Party supporters as indeed does their refusal to provide flights for those who were suspected Democratic Party supporters and in this regard I refer to the evidence of Tu Ford, Aileen Moreland, and Tepapa Manuel. The effect therefore of my findings of fact mean that all the elements necessary to constitute bribery have been proved. However, Mr Brown for the respondent candidates submitted in closing that bribery by them was not established. He argued that all the passengers on the flights were staunch Cook Islands Party supporters and that they could not be bribed because as he said "One does not have to preach to the converted. There was no need to offer corrupt inducements nor to impose conditions." Mr Temm answered this submission by contending that the mischief begins before the conversion. One must ask why the flying electors were CIP supporters and he submits the answer can clearly be inferred from the evidence that they had to make it plain to the organisers of the scheme that they would vote for the parties’ candidates before they were given the flights. I agree but apart from that it seems to me that if the evidence establishes, as it does here, that the intention of the perpetrators of the scheme was to offer the flights to the electors in order to induce them to vote for the Cook Islands Party candidates, the question of the political allegiance of the electors partaking in it is largely irrelevant.

Now, the law relied on by Mr Brown is not at variance with that submitted on behalf of the Petitioners, its applicability depending upon the finding of the facts in this case. He does, however, seek to distinguish on the facts this case with those in Cooper v Slade (supra) where there was found to be an implied inducement to voters. He contended that Cooper's Case related to collecting travel expenses after voting which is a different matter from the provision of travelling free of charge in advance of voting and he argued that once people board a plane no control (in terms of payment) can be exercised "by the provider of travelling expenses after that point and no control can be exercised in the Polling Booth itself". He quoted Bo1ton (1874) 2 O’M & H. 145 which concerned a letter to a voter with these words - "We enclose a railway pass. I trust that you will be able to make it convenient to come over and record your vote in favour of Messrs Cross and Knowles." This was held not to be a conditional promise and therefore not bribery. Mellor J. at page 146 said:

"All control over that railway pass was gone when it left the Respondent's agent. That is how it stands. So far as it is in any sense a conditional bargain or can be called a bargain at all, it is a bargain entirely onesided - I put myself in your power, I send you a piece of paper to take you to Bolton and back again."

In this case the position is quite different. Here there was complete control by the Cook Islands Party organisers over the air-ticket of each flight passenger. The boarding card referred to above which was handed to the passenger, was given at the Airport to those selected electors who had come to the Airport for the purpose of travelling on the aircraft which was waiting there to fly them to Rarotonga. That was the only ticket issued and upon it being issued, the passenger went to the plane. The question of control at the Polling Booth is irrelevant since there is no requirement of proof that in fact the elector passenger voted - Henslow v. Fawcett (supra). In my view, the promise to pay is the relevant factor and, if as in this case, it is given at the start of the transaction that is the end of the matter. This was the view of Willes J. in Northallerton (1869) 1 O'M & H. 166 where he expressed himself as follows:

"No doubt if a promise were given beforehand that the fares would be paid it would be bribery. I do not know, however, that paying afterwards without any previous promise would amount to bribery. This is a point I believe that has yet to be decided."

I was also referred to the New Zealand case of the Wellington City Election Petition (1897) 15 N.Z.L.R. 454 where on the facts it was held that the provision of free cabs by a political party to convey voters to the Poll was not bribery or an illegal practice. The ratio decidendi of the Election Court is expressed by Prendergast C.J. at 444 as follows:

"The Court does not think it necessary to call on Mr Skerrett to reply. It is not improbable that the persons placed in charge were persons appointed by the Liberal Association, but this has not been proved. If it had been proved that the Liberal Association provided the men who controlled the cabs that would have put a different aspect upon the matter ... So far as we can see these cabs were used by any person who chose to do so. It is said that it was so. I think it very possible that there was some attempt to accommodate some persons more than others, but there is no evidence which would justify us in saying that the cabs were used for the purpose of promoting the election of the Liberal candidates."

This case clearly is distinguishable on the facts from the present case where the Cook Islands Party organisers were in control of the flights and the purpose thereof was for the promoting of support for the Cook Islands Party candidates.

On the law, as I see it, the allegations of bribery have been undoubtedly established. The scheme amounted to a bribe to electors and the respondent candidates are in law answerable for it. They, by their words and conduct, showed that they knew of it and condoned it. They left its implementation to Sir Albert Henry and the Cook Islands Party organisers. They accepted what was done. They never disassociated themselves from it. They took the benefit of it. In such circumstances they are liable for the bribery. I have touched on this aspect in the Mitiaro case (see page 12 referring to the Bay Islands Election Petition (1915) 34 N.Z.L.R. 578-586). Agency in electoral law is different from the general law of agency. Blackburn J. in The Bewdley case (1869) 1 O'M & H.16 at page 17 said:

"No-one can lay down a precise rule as to what would constitutes evidence of being an agent. Every instance in which it is shown that, either with the knowledge of the member or candidate himself, or to the knowledge of his agents who had employment from him a person acts at all in furthering the election for him, in trying to get votes for him, is evidence tending to show that the person acting was authorised to act as his agent. It is by no means essential that it should be shown that a person so employed, in order to be an agent for that purpose, is paid in the slightest degree or is in the nature of being a paid person."

The aspect of agency is further discussed by Willes J. in his classic statement in the Blackburn case (1869) 1 O’M & H. 198 at 201 (line 26) to 203 (line 15) as follows:

"Nothing can be clearer than this law; it has existed for a considerable period, I believe certainly from as early as the time of James I. Some 265 years ago the general principle was laid down upon the first and only occasion upon which the jurisdiction of the House of Commons over parliamentary elections was seriously questioned, (Goodwin's Case 2 State Trials 91) and upon which occasion it was confirmed. And it is enacted and settled as the law by the Corrupt Practices Prevention Act of 1854, s.36 which, to my mind, does no more than lay down in very distinct terms that which has been always the understood law of Parliament, or rather the common law of the land, with respect to the election of Members of Parliament; that is to say, that no matter how well the Member may have conducted himself in the election, no matter how clear his character may be from any imputation of corrupt practice in the matter, yet if an authorised agent of his, a person who has been set in motion by him to conduct the election, or canvass voters on his behalf, is in the course of his agency guilty of corrupt practices, an election obtained under such circumstances cannot be maintained. As it has been expressed from early time, no person can win and wear a prize upon whose behalf the contest has not been legitimately and fairly carried on, or, as it was expressed upon the occasion to which I refer, non coronabitur qui non legitime certaverit, which is only so much in Latin showing the antiquity of the principle which I have already expressed in English; and whether it be that the person who contends in respect of any unfair play of his own, whether it be the owner of a horse in respect of the unfair play of his jockey, whether it be the owner of a ship in respect of the fault of his steersman, or the hoisting of an additional sail against the rules of the race by one of the seamen; or whether it be a candidate in a parliamentary contest in respect of his agent, in every one of those cases, whether it has been the principal who has been guilty of illegality, or whether the illegality has been committed by his agent only even without his authority or against his will, provided it be done in his agency and for the supposed benefit of his principal, such principal must bear the brunt, and cannot hold the benefit in respect of that in which the agent has compromised him, and would in a matter of this description have also betrayed the public, who have a right that a just election shall be had. The amount of the injury done by the agent, if the injury has been done of the character which I have described, is immaterial. If an agent bribe one voter with 2s.6d., and that voter votes for the candidate, election void. If an agent bribe one voter with 2s.6d, and the voter taking the 2s.6d. with purpose, express or implied, of voting accordingly, should break his promise, and vote for the other side, election still void. Although the result of the bribe was nothing as to the poll, the result was in point of law that an illegality of so gross a character and so difficult to trace would have been committed that no election would be safe, no community would be sure but that elections were gained by the exercise of corrupt practices, unless, for the sake of all, the election in which an agent has been guilty of such a malpractice were held void as against the principal of that agent. It is not by way of punishment to the principal that the election is held void, it is not because the majority has been swayed or even affected by the malpractice that the election is held void, but it is because malpractices designated as corrupt by the common law and by the Legislature in the Corrupt Practices Act, are so odious and are so dangerous, that it is thought better to hold void an election where either such practices have generally prevailed, whether traceable to a Member or his agents or not, or where a single instance of such corrupt practice has been distinctly traced to the Member or to an agent of the Member."

Having examined the principles above expressed which I consider to be apposite and the facts in these cases, I am of the firm conclusion that the allegations of bribery by the Respondent candidates in respect of the Ansett flights are sustained and I so hold.

Treating:

The Petitioners allege that the Respondent candidates were guilty in respect of the corrupt practice of treating since they provided the "fly-in" voters with meat, drink, entertainment or other provision for the purpose of procuring their own election or for the purpose of influencing the vote of those persons. There is no doubt such provision was made by the Cook Islands Party for the travellers. The evidence (including the television video-tapes) vividly tells of this. In the Mitiaro case I dealt with the law as to treating and I do not propose to elaborate on it here save as to point out that the burden is on the Petitioners to establish a corrupt intent. I do not consider they have done this. I accept Mr Brown's submission that what was done here was consistent with traditional Polynesian hospitality. It would have been considered by the travelling voters as their due and I am satisfied would not be regarded as a "treat" in the sense of section 70 of the Electoral Act. Nor should those providing the feast have imputed to them a corrupt intent in doing so, since every Polynesian knows what according to custom is required to be done for visitors: the most important obligation is to provide customary hospitality. Baron Pollock in the case of Lancaster (1896) 5 O'M & H. 39 at 43 when considering the provision during an election of a smoking concert in a working class environment said, as follows:

"However, that is done; that is the habit in that class of meeting; it is established from month to month and from year to year, and you cannot expect that it should be stopped because an election is coming at some time...."

I am therefore of the view that treating as alleged by the petitioners has not been established and I discard the allegations thereon.

Use of Public Servants and the Cook Islands Broadcasting and Newspaper Corporation

I now propose to deal briefly and generally with the allegations of bribery, undue influence and corrupt practice in relation to the use of public servants and the Cook Islands Broadcasting Newspaper Corporation (commonly known and hereafter referred to as "the CIBNC") to induce electors to vote for the Respondent candidates and the threat by the Cook Islands Party members in Government to inflict loss of office upon those employed as public servants who did not support the Cook Islands Party. Standing alone, these allegations, in my view, have not been proved to the standard which is required to sustain such allegations. However, taken with the other allegations I feel that the suspicion raised in the evidence concerning them, calls for some comment by me.

Dealing first with the public servants there is no doubt some were employed during normal Government working hours to put together the manifesto of the Cook Islands Party at the Government Printing Office. I have no doubt there was no deduction from their pay as public servants for this time spent on non Government service. There was evidence of other public servants being engaged in Cook Islands Party campaign work both in the Cook Islands and New Zealand. The records of the Public Service Commission, if I accept the evidence of the Public Service Commissioner, are so appallingly inadequate that it is not possible to hold with certainty what the position was in relation to these people and I hold these allegations to be not proven. Nevertheless it should be made clear that the involvement of public servants in political activities is fraught with danger. The right of public servants to ally themselves to a political party is unquestionable. But political affiliation should neither lessen the obligation of the public servant to serve faithfully and well the Government which employs him, irrespective of the politics of that Government, nor should it place him at a disadvantage in respect of advancement in his career in any way. To threaten or even suggest that because of his political loyalty a public servant could or would lose his position in the service of government is a tactic worthy only of a totalitarian or despotic regime. Should such an allegation be sustained, it could possibly give rise to legal proceedings, but, more importantly, I consider, if it arose from the action of a member of the executive Government, it could justify steps being taken under the Constitution to effect his removal from Ministerial office. Again, too, a Government is empowered to use its public servants only in legitimate Government service. That statement is indeed trite, but, the temptation by the political forces of Government to direct the employment of public servants it controls to further its own political ends is great, if the atmosphere pervading is that of fear by the public servant, that a refusal to be so used, could result in either his dismissal from the service or his chances of promotion therein being inhibited.

The CIBNC is a statutory corporation created by the Broadcasting and Newspaper Corporation Act 1970-71. It is responsible for the publication of the Cook Islands news and the only broadcasting service in the Cook Islands. It is governed by a Board comprising the Financial Secretary and two Government appointed Directors. It is required to carry out any directions given to it by the Minister in Charge of Broadcasting. The main allegation of the Petitioners is that there is censorship of the Cook Islands News and Broadcasting service and control over the news to the extent that it is unfairly slanted in favour of the Premier and the Cook Islands Party. It is true that, as Mr Brown has said, the Cook Islands News is no English Sunday Times, but, it is fair to conclude that its influence in its country of origin, the Cook Islands, is far greater than that of the Sunday Times in England. Apart from the distribution of the newspaper in the Cook Islands, its main news items are repeated in the National News broadcast over the Corporation's Radio Station several times daily. The wonders of the transistor or battery radio have enabled even the remotest parts of our large Island territory to be reached by these National broadcasts. Listening to radio broadcasts is an integral, and sometimes the main, preoccupation of the people in the Outer Islands. It is their source of daily news and indeed provides, in many cases, their only information of national affairs. In these circumstances, the News Media of the CIBNC could indeed be a powerful propaganda machine in the hands of unscrupulous operators. The responsibility of the Board and the Management to ensure that there is always a truthful and objective dissemination of news is indeed a grave one and there can be little wonder that the columns of its news are so closely scanned by those who would criticise its objectivity.

I am not satisfied that the allegations of general censorship are made out. It would seem from the evidence and from an examination of the Cook Islands' News copies presented therein that there is reasonable coverage of news submitted to it by the Democratic Party albeit set in less prominent sections of the paper than the news of the Premier, his Ministers and his Government. The prominence given to rather banal news of the Premier from time to time is, I feel rather due to the imaginative pen and persistence of his Press Secretary than to a predetermined editorial policy. There is, however, one complaint of the Petitioners which could support a finding of censorship by way of inference and that is the shockingly distorted and untruthful publication of news of the hearing of evidence in connection with these cases in Auckland. The publication of some evidence given and the failure to publish any reference to the damning letters of the Premier to the Director of the Philatelic Bureau of the 24th of February and the 13th of March, to which reference has already been made, could allow the strongest inferences to be drawn.

The Misuse of Public Monies

I have already made some mention of this topic and stated the basic facts thereon in the section of this determination called General Findings Of Fact. For reasons I shall give shortly there is clear evidence of the use of public money and indeed in his evidence Sir Albert Henry acknowledged that his own solicitors had informed him that the transactions he proposed would be in breach of the Public Moneys Act 1969, Cook Islands. I shall elaborate on these matters later.

By way of a preliminary observation I should say that if a proven misuse of a large sum of public money is established it would in my view amount to an illegality so gross as to justify action under the first part of Section 79(1) of the Act. In my Judgment on the Mitiaro petitions I have analysed at considerable length the relevant provisions of the Electoral Act and there is no need to repeat what I said here. The question of misuse of public money arose in a peripheral way on the Mitiaro petitions and at page 34 I said this:-

"…if the allegation of misuse of public moneys stood alone and was substantiated I have no doubt that the Court could, if it considered that the circumstances were sufficiently serious to warrant it, declare the successful candidate not duly elected and his election void without either (a) necessarily having to have proof that the result was materially affected, this test being primarily confined to cases where irregularities are urged, and irregularities are limited to those described in Section 78, or (b) having to have before it proof of a corrupt practice as defined in the Electoral Act 1966... In other words, it is my view of the statute that there may be misconduct or illegal practices which fall somewhere between the less important breaches, i.e. "irregularities" but do not reach the level of a corrupt practice or alternatively do not fall exactly within the statutory definitions of corrupt practices. Such misconduct, for the reasons I have given could, in appropriate circumstances, result in a candidate being found not to be duly elected and his election being held void or alternatively it could lead to another candidate being substituted as the successful candidate."

Accordingly, a finding of the misuse of large sums of public money could, standing on its own, be enough to warrant action by the Court under Section 79(1) either by a determination that all of the elections were void or alternatively by unseating the Respondent candidates and replacing them with the candidates obtaining the highest number of lawful votes.

On the other hand, the public moneys question is inextricably intertwined with the bribery allegations and clearly I am entitled, if I wish, to look at the public moneys matter as supporting the allegations of bribery but in this section of my Determination I shall consider the public moneys question on its own.

I deal first with the explanations of the financial transactions given by Sir Albert Henry at considerable length in his examination-in-chief and in cross-examination. A fair summation of his testimony is that he had arranged with Mr Kenny a loan of all money necessary to implement the "fly-in voter" scheme. He was at pains to stress that it was a personal loan to him. He deposed that in view of the provisions of an American Federal law (and obviously the law in question must be the Foreign Corrupt Practices Act of 1977 (Public Law 95-213, 95th Congress) colloquially known as the "Lockheed Law"), which precludes advances to political parties, candidates or party officials, Mr Kenny asked for steps to be taken to protect him and as a result of this request the steps referred to earlier including the incorporation of a company called the Cook Islands Government New Projects Company Limited, were taken. It was urged by Mr Temm that Sir Albert's actions in this respect amounted to a conspiracy to breach the laws of the Cook Islands. On consideration of this proposition I am inclined to the view that, as a matter of law, the submission is untenable. However, what I think is the relevant consideration in this matter is whether the scheme of the Cook Islands Party for the chartering of planes to fly-in voters involved the use of public moneys within the meaning of the Public Moneys Act 1969.

After much close questioning in cross examination when he conceded that he was a party at least to a scheme to evade the Corrupt Practices Act, Sir Albert explained that he had complied with these requests from Mr Kenny in order to help and protect his friend. While that may well be the case, it would not, of course, have any bearing on the question of the applicability of the Public Moneys Act 1969 in the Cook Islands to the transactions in question.

Whether or not there has been a breach of United States Federal law is not for me to decide.

In considering the applicability of the Public Moneys Act, 1969 I think the starting point must necessarily be the letters of the 24th of February and the 13th of March 1978 which I have already set out in this Determination. I am satisfied that the critical letter of the 13th of March 1978 is not a sham and it truly records what indeed were the terms laid down by Mr Kenny for any advances from the Philatelic Bureau. I accept without hesitation Mr Little's evidence on the authenticity of this letter and I note in passing that Sir Albert Henry did not in his evidence challenge the validity of either of these two letters. Mr Little was cross-examined once in Auckland and once in Rarotonga by Mr Brown and while counsel explored the circumstances in which the letters had been prepared by Mr Little, signed by Sir Albert and approved as to form by Mr Trevor Clarke, the then Advocate General, who was also acting for Mr Kenny, there was no questioning to suggest that the letters were not valid. Rather it appeared to be the approach of Sir Albert Henry and his counsel that the letters correctly stated the position but were written simply as part of the protective plan being arranged for the benefit of Mr Kenny. I have no doubt at all that Mr Little explained the purport of the letters to Sir Albert Henry who accepted the terms contained therein as Premier of the Cook Islands. Once the letter of the 13th of March was written, the die was cast. Acceptance of the cheque made out to the Cook Islands Government New Project Company Limited involved confirmation and acceptance of the letter of the 13th. No effort was made by Sir Albert Henry at that stage to query the statements made in the letter of March 13th.

Being convinced as I am of the genuiness of these letters the consequence I consider is that the money received from the Philatelic Bureau as a result of these letters was "public money" covered by the Act. I should explain my reasons for this holding by referring to the Act itself and in particular to the definition of public money in Section 2. "Public money" is defined in the following way:

"Public money" means money cheques or securities of any kind (including public securities) for the payment of money received by for or on account of, or payable to, or belonging to, or deposited with the Government or any Department or as agency of the Government, or received by any employee of the Government by virtue of his position as such."

(The underlining is mine)

In view of the terms of the letter of the 13th of March and the fact that it was signed by the Premier and considering also that the cheque was made out to the Cook Islands Government New Project Company Limited which I have no doubt was, as stated by Mr Williams in his opinion, an agency of the Government, seems to me beyond question that the cheque for $337,000 was public money within the meaning of the statute. As to the holding that the company was "an agency of Government", when it is recalled that all but one of the 1,000 shares in the Cook Islands Government New Project Company Limited were held by the Cook Islands Government Property Corporation, a statutory corporation operating under its own legislation, and that the other share was held by the Assistant Advocate-General, the conclusion to this effect is irresistible. The name Cook Islands Government New Project Company Limited itself reflects the true nature of the company.

What then follows from the factual and legal conclusion that the money so advanced was covered by the Act? Part IV of the Act applies to all "public money" and there are requirements that public monies be kept in certain public accounts in Rarotonga or elsewhere as the Financial Secretary may approve or direct. There are also requirements that the Financial Secretary shall control all bank accounts whether inside the Cook Islands or outside which contain public money; see Sections 12, 16, 33 and 34. Public money held in overseas accounts established by consent of the Financial Secretary is also subject, by virtue of Section 34, to the requirement that "notice of the issue of every cheque drawn on such accounts shall be given by the person issuing it to the Financial Secretary in such form as he may from time to time direct". Only persons authorised by the Financial Secretary can operate such public accounts.

Part XI of the Act provides, by Section 49, that every person holding any public money who refuses or neglects to pay it into the account into which it is payable shall be liable to a fine not exceeding $1,000.00 and there are similar provisions creating offences in persons who refuse or neglect to make any proper returns or furnish any papers required under the Statute.

It should be noted as well that the explicit provision for public accounts to be opened outside the Cook Islands displays a clear legislative intention that the statute should have extra-territorial operation.

For all these reasons I am satisfied that all funds advanced by the Philatelic Bureau and referred to in the letters of the 24th of February and the 13th of March 1978 were public moneys within the meaning of the statute and subject therefore to all the consequential restrictions imposed thereunder.

There was extensive evidence relating to letters and other communications occurring after the time of the payment of the charter fee to Ansett Airlines and passing between Sir Albert Henry and Mr Kenny and also involving the Cabinet and the Philatelic Bureau. In addition there was considerable testimony on the part of Sir Albert explaining in detail the arrangements which he claimed to have made recently for repayment of the money advanced by the Philatelic Bureau. Then there were long telexes from Mr Kenny which were admitted in evidence, either by consent or in the exercise of my discretionary powers under Section 3 of the Evidence Act to receive material which would otherwise be inadmissible at Common Law. In these telexes Mr. Kenny vehemently stated his viewpoint on the disputed matters and it was clear that his version of events differed markedly from that of Sir Albert. I do not propose to consider any of the evidence on these various topics because it seems to me that it is irrelevant to the central question as to whether the money received by Sir Albert was public money. I am not obliged therefore to rule upon the validity of self serving explanations given by Sir Albert Henry or Mr Kenny after the event nor am I concerned to explore in these proceedings the civil consequences of the various transactions, whether as between Mr Kenny and the Philatelic Bureau on the one hand and the Government of the Cook Islands or Sir Albert Henry on the other. These matters require no findings from me for present purposes.

In so far as Sir Albert Henry knowingly uplifted $337,000 in the form of a cheque from the Philatelic Bureau and failed to handle the cheque after receipt in the manner demanded by the Public Moneys Act I consider the matter could rest at that point but I will shortly go on to consider the events in Auckland. I should record at this stage that Mr Brown contended that Sir Albert Henry's motives at all times were proper. I am afraid that the evidence does not support that conclusion. Even if there was an innocent explanation in the early stages or some misunderstanding thereafter, and I do not accept that there was, the matter is put beyond doubt by the events which subsequently took place in Auckland. Most of these events have already been mentioned but since they are particularly relevant to the point under consideration the following matters should be stressed:-

1. According to the evidence of Mr Glasgow, which I accept as truthful, the time for payment of the charter fees to Ansett Airlines was not to expire, as claimed in evidence by Sir Albert, on Friday the 17th of March, but in fact was only payable, at the earliest, on the Monday of the following week i.e. 20th March. At page 3 of the New Zealand evidence Mr Glasgow is recorded as follows:-

"Q. When was it arranged that the cost of the charter should be paid.
A. Thursday 22 March.
Q. It had to be paid on Thursday.
A. Yes.
Q. Had there any earlier date for fixture of payment.
A. Yes originally in verbal discussion we had agreed on 20th.
Q. Earlier when was date changed from 22 to 23.
A. When final contract was drawn up.

Mr Glasgow had produced to the Court the agreement between Ansett Airlines and Ipukarea Development Company Limited and that agreement is dated 21st March, 1978. Although I have no doubt that time was short this evidence appears to underline Sir Albert's explanation that the transactions had to be concluded and the money paid by Friday March 17th. I consider that Sir Albert's decision to proceed against the advice of his own solicitors and without referring the matter back to Mr Kenny is explained not so much because of any time factor, although that may have been one consideration, but primarily because Sir Albert knew he would not be able to obtain the consent of Mr Kenny or his companies to change the character of the advance made to the Cook Islands Government New Project Company Limited from an advance to that company to a personal loan to Sir Albert himself and he was too deeply committed then to abandon the whole "fly-in" voter scheme.

2. The legal advice to which I have already referred, given to Sir Albert Henry by Mr Turner and Mr Collinge was no doubt unwelcome to Sir Albert but, to his credit, he made no attempt in evidence to deny that it had been given. Even if there were any doubts about his understanding of this advice, the written opinion of Mr. Williams which Sir Albert had apparently requested himself when the matter was raised by his own lawyers, was clear and unqualified in its terms and stated explicitly that any money handled by the Cook Islands Government New Project Company was public money irrespective of whether the funds were in the Cook Islands or New Zealand and the opinion drew attention as well to the criminal consequences of breaches of the Act. Against this background it is patent that Sir Albert knew that the funds were public moneys but he nevertheless chose to proceed regardless of this fact.

I should mention that Sir Albert Henry in that part of his evidence relating to his conduct subsequent to the receipt of this legal advice, attempted to distinguish between procedural matters and matters of substance. For example at page 152 of the Rarotonga evidence the following passage appears:

"Q. When you signed the second cheque had your lawyers told you that money in the Government New Project account was public moneys under the Act.

A. They told me clearly and I understood it clearly that if I used the first cheque and transferred the money from the Cook Islands Government Account to Ipukarea that would be very wrong. In the absence of Paradise Tours the best thing and correct thing to do was return the cheque back to the Philatelic account in the Bank of NSW. Then we arranged to meet the Manager of Bank of NSW late Thursday afternoon. The Manager kindly agreed that he would come an hour before official time and we met in his office at 9 o’clock on Friday. When we met as I have previously explained the Manager, myself and my two legal advisers the decision to do the right thing or not be done in time. So I asked the manager could you pay this to myself. Between the bank and a politician it can be done, but the legal advisers although if they did not agree from the legal point of view it was not as bad as paying it the other way. I then took the risk personal risk because I took as a procedure as matter of procedure not substance."

(The underlining is mine)

I believe this explanation is untenable. The matter of substance was whether what Sir Albert was doing was illegal; he was advised it was but he decided, as he put it, to take the risk. In so far as he went on to suggest that the risk he took was in expecting that the Philatelic Bureau or Mr Kenny would alter the arrangements and, he implied, agree to the advance being treated as a personal loan, it seems to me on the evidence that Sir Albert must have known Mr Kenny could not change the nature of the advance in view of United States Federal Law, the general effect of which statute Sir Albert openly conceded had been discussed between them. That Mr Kenny would not restructure the transaction is understandable when one considers the extremely heavy penalties provided in the Foreign Corrupt Practices Act for contraventions thereof; see Section 104(b)(1)(A) and (B) which provide in the case of corporations for a fine of not more than $1,000,000.00 and in the case of individuals for a fine of not more than $10,000.00 or imprisonment for not more than 5 years or both.

On the evidence of these events first in Rarotonga and then in Auckland I find that there was unlawful conduct of monumental dimensions and there is ample evidence of a corrupt or criminal intention. The use of public moneys was a means to an end - an illegal means, an illegal end. I refer in particular to the evidence of the Financial Secretary, Mr Wiremu Kingi, where at page 16 of the Rarotonga evidence he advised that he had no knowledge of the opening of the Cook Islands Government New Project bank account on March 7, 1978 although it is usual practice for a matter such as this to be referred to Treasury who, after consulting with the Minister of Finance and the Financial Secretary, determine who the signatories for such a bank account shall be. (He advised that Treasury retained copies of the signatories to public accounts and updated them as necessary). Mr Kingi said that on the assumption that the Cook Islands Government New Project Company Limited account was a public account covered by the Public Moneys Act the usual procedures had definitely not been followed. Furthermore he deposed that the transaction in question, involving funding from the Philatelic Bureau of public funds, should in normal circumstances have been the subject of a Cabinet submission, comment from the Financial Secretary, and a Cabinet minute. No such steps were taken in this case. He stated further that he would have expected consultation with him by the Advocate General's office which was forming the company, and that in the circumstances Mr Turner was obliged to inform him of the opening of the company's account especially when such a large sum of money was involved. There had been no such consultation and Mr Turner had not so informed him. Mr Kingi also stated that he never received custody of the cheque book of the Cook Islands Government New Project Company Limited account. By law he should have done so.

I should also mention at this stage that the first Secretary of the Cook Islands Government New Project Company Limited was Mr Gosselin, the Chief Electoral Officer, who also holds the position of Secretary of Planning and External Affairs of the Ministry of Planning and External Affairs. That Ministry handles all new projects and developments in the Cook Islands. Mr. Gosselin gave evidence that he was unaware of anything relating to Cook Islands Government New Projects Company Limited until he was informed by the Assistant Advocate-General Mr. Turner on the 6th or 7th of March that he had been appointed Secretary of the company and that this appointment was considered logical because of Mr Gosselin's role in the planning division. Apart from signing a form necessary for the opening of the bank account, which Mr Gosselin did at the request of Mr Turner, Mr Gosselin told the Court that he was not involved in any way with, nor did he have any prior knowledge of, any of the transactions of the New Project Company occurring in New Zealand and he was no longer the Secretary of the company. I accept without hesitation Mr Gosselin's evidence and I am satisfied that he was completely unaware of the affairs of the Company and was an entirely innocent party in relation thereto.

It can be seen from the matters I have mentioned that in relation to this question of misuse of public moneys there was:

1. Undoubted unlawful conduct consisting of a clear breach or breaches of the Public Moneys Act.

2. The use of a vast sum of public money for a private political scheme.

3. This use of public moneys for the purpose of flying in Cook Islands Party voters, dramatically affected the result of the election, as will be seen from the figures that I refer to at the conclusion of this Determination.

4. When considered against the legislative purpose of free elections to which I have made frequent reference both in this Determination and in the Mitiaro Determination, the activities of Sir Albert Henry are incapable of any satisfactory explanation in terms of the Electoral Act and the Public Money Act.

I think I should now say something about another significant aspect of this misuse of public moneys and that is the involvement of Government. The purpose of the scheme was to charter aircraft. It could not be carried out without the intervention of a public agency of some kind because Mr Kenny had insisted, due to the Foreign Corrupt Practices Act, that in the circumstances the only party capable of safely receiving the funds from him or his agent was a Governmental agency of one kind or another. Therefore the Bureau was used and so too was the Cook Islands Government New Projects Company Limited.

The Cook Islands Party was the Government in power which controlled Government agencies such as the Cook Islands Government Property Corporation which subscribed for the majority of shares in the New Project Company. Had it not been for the privileged position which the Cook Islands Party enjoyed as the Government Party, Government agencies and Government funds could not have been used at all. The scheme would not otherwise have been able to get off the ground in the manner desired by Mr Kenny. Sir Albert Henry and the other participants were therefore in an untenable position, legally and morally, from the beginning. Whichever way one regards the transactions it is impossible to escape the vital importance, to those evolving the scheme, of participation of Government agencies and public money. What the participants did was to try to camouflage the element of public money and public agency involvement which, as I have said, in itself reveals a corrupt motive. If the dealings with the advances and the incorporation of the New Project Company had been above suspicion then proper procedures would no doubt have been followed.

There is one other explanation apparently given by Sir Albert Henry which should be mentioned. There was a passage in the evidence of the Financial Secretary Mr Kingi which suggested that the moneys had been advanced to Sir Albert Henry by Mr Kenny on the basis that it would come from Mr Kenny’s anticipated profits on a special coin issue. Mr Kenny would recoup from the special coin issue a sufficient profit to cover the personal loan made to Sir Albert Henry. Mr Kingi said he had been informed of this proposal during discussions he had with Sir Albert. This evidence went unchallenged.

The relevant statutory provisions dealing with coin issues are the Decimal Currency Act 1964 (N.Z.) and the New Zealand Laws Act 1966 of the Cook Islands and under these statutes it seems to have been necessary from time to time to promulgate Regulations authorising special coin issues and describing the design to be followed in the manufacture of the particular coins. By way of illustration reference can be made to the Coinage Regulations Amendment No. 10, Statutory Regulations 1975/5, which dealt with the Cook Bicentenary coins which were to be issued in $50 and $100 units. The evidence does not make it clear which precise special issue was being referred to by the Premier in his discussion with Mr Kingi but it appears that there can be no special coinage issue without either the introduction of appropriate Regulations or the making of a decision by the Executive Government. If in fact the advances made by Mr Kenny or his company were to be repaid in the manner suggested then I have little doubt that this would be unlawful. As Lord Denning M.R. pointed out in Laker Airways Limited v Department of Trade 1977 2 All E.R. 182 at 193 "at several times in our history the executive have claimed….that a discretion given by statute or by regulation is unfettered .... But the Judges have not (upheld these claims) of late". He went on to say:

"The two outstanding cases are Padfield v Minister of Agriculture, Fisheries and Food 1968 A.C. at 1016; 1968 1 All E.R. 694 and Secretary of State for Education and Science v. Metropolitan Borough of Thameside 1976 3 All E.R. 665 where the House of Lords have shown that when discretionary powers are entrusted to the executive by statute, the courts can examine the exercise of those powers, so as to see that they are used properly and not improperly or mistakenly."

Thus the exercise of a statutory power is invalid unless the repository of the power has acted honestly and in good faith. The deliberate promotion of a private purpose alien to that for which the power was conferred is to be regarded as unlawful. Accordingly, if the particular coin issue was for the dominant purpose of enabling Mr Kenny to recoup his outlay then I must say, as emphatically as I can, that that would be quite improper and illegal. If further authorities to support this elementary proposition are necessary they may be found conveniently summarised in Halsbury’s Laws of England 4th Edition, Volume 1, Para. 60, pages 67 - 70.

General Corruption

It will be recalled that there were allegations of "general corruption of a widespread and general nature." As to the implications of such allegations see Lamb v McLeod (No. 5) Infra. On the evidence before me I do not consider that corrupt or illegal practices have so extensively prevailed that they may be reasonably supposed to have affected the whole electoral process. While I have made findings of bribery and serious misconduct (a breach or breaches of the Public Moneys Act) there is no question here of the entire election proceedings being invalid. The Chief Electoral Officer and his Returning Officers carried out their duties admirably and apart from the partial but very serious imperfections relating to the Ansett "fly-in" votes, it is clear that the elections were conducted in accordance with the law as to elections. For these reasons I reject the allegations that there was general corruption in the legal sense of that phrase.

Form of Relief:

I must now consider what form of relief is appropriate in relation to each of the three affected constituencies. There were four Petitions filed in relation to each constituency and each Petition claimed different relief. To illustrate the position I shall now record the form of relief contained in the four Petitions relating to the Takitumu constituency.

- Petition 25/68 prays "that it may be determined that the said Matapo Matapo and Apenera Pera Short or either of them were/was not duly elected".

- Petition 26/78 prays "that it may be determined that the election was void".

- Petition 24/78 prays "that it may be determined that Iaveta Short and William Papa Cowan or either of them was duly elected, and ought to have been so declared."

- Petition 31/78 prays "that it may be determined that the following persons, namely Matapo Matapo and Apenera Pera Short (a) were not duly elected and/or (b) that the votes of those electors who were induced to vote or refrain from voting by virtue of the said corrupt practice be disallowed and not counted and that a recount of the votes for the Takitumu Constituency be made; and/or (c) that the election of the said Matapo Matapo and Apenera Pera Short was void and that the following persons be declared the elected, namely Teariki Matenga, Iaveta Short, William Cowan and/or (d) that the said election was void; and/or (e) that such other order or orders as this Honourable Court deems just".

The various patterns of relief which I have described in the petitions relating to the Takitumu constituency are repeated in the petitions, relating to the constituency of Te-Au–O-Tonga (Misc. 21, 22, 23 and 32/78) and the Puaikura constituency. (Misc. 27, 28, 29 and 30/78).

It is appropriate at this stage to say something about the differences between petitions which claim the election is void and petitions which "claim the seat". The judgment of the Court in Lamb v McLeod (No.5) (1932) 3 W.W.R. 596, 597-598 contains the following helpful analysis of these differences:

"Election petitions are of two distinct kinds. The petitioner, in the one case, may seek to oust the candidate who has been returned, or has been declared elected, and to have another candidate seated as the duly elected member for the constituency. In that case the petitioner assumes that the election itself was a valid election, and he undertakes to prove that the candidate for whom he claims the seat received a majority of the legal votes cast. The respondent by maintaining his right to the seat, also supports the validity of the election. Between these parties there is no question of the entire election proceedings being invalid, so as to necessitate the vacating of the seat and the holding of a new election. The only question in issue between them is: Who was elected. And the petitioner, by bringing his petition, assumes the burden of proving that his candidate, and not the respondent, was elected. The Judge trying the case must confine himself to the issue thus raised unless the statute, as sometimes happens, requires him to go further.

The petition in this case is of the other kind. No attempt is made to assert the rights of another candidate. In a petition of this nature, the petitioner has a wider scope of action and a wider field of investigation is opened to the Court. The petitioner is not concerned in securing the seat for another person. If his petition is allowed, the seat must be vacated and another election held. Such a result may follow merely from some disqualification of the respondent or some unlawful practice chargeable against him, or some irregularity affecting his election, or on the other hand, it may be caused by an act or omission, with which the respondent has had nothing to do, either directly or indirectly, but which renders the whole election void, so that neither the respondent nor any other candidate was duly elected or might lawfully have been returned ...

In petitions of this kind the Court is not confined to a balancing of the relative rights and merits of two candidates. The inquiry may go beyond the candidates and strike at the election itself. As was remarked by Madden J. in the North Louth Case (1911) 6 O’M & H 103 at 114, ‘an election may be voided on two very different classes of cases, personal to the candidate or his agent, or affecting the constituency as a whole.’ The question then becomes (and in the present case it did become) having regard to the rights of the electors: Was a valid election held?"

At an early stage in the hearings in Rarotonga Mr Temm applied for a scrutiny under section 77 of the so-called "Ansett Fly-In" votes relating to those constituencies. Mr Giles for the Electoral Officer then pointed out that his client could not act without an Order from the Court and he referred to sections 61(2), 64, 73, and section 77. At that stage I asked the Chief Electoral Officer if he was able to ascertain from the voting records in his possession how many "fly-in" voters there had been, in which constituencies they had voted, and for which candidate they had voted. He said such information could be compiled. I then made an Order that the Chief Electoral Officer report to me on this statistical information. Since Mr Brown requested that the votes coming from the Air Nauru flights should also be analysed my Order covered both the Ansett and Air Nauru flights. However, it later became evident that the Air Nauru flights were no longer in issue and I subsequently discharged the order in so far as it related to those flights.

The Order I made was not made pursuant to section 77, and did not amount to a scrutiny as envisaged by sections 57 and 58 in the sense that I did not order that representatives of the petitioners and the respondent candidates attend as scrutineers when the information was being compiled. I felt it was sufficient if the Chief Electoral Officer and his counsel prepared the information and no party made any submissions to me requesting any other arrangements.

The order I made required that the information be collated in circumstances of absolute confidentiality so as to protect the secrecy of the ballot. I was also careful to point out to counsel when I made the order that the order was given without in any way prejudging the issue of whether the information to be supplied was relevant or whether the information should later be disclosed to any party. The primary purpose of making the order was to avoid delays later, should I be persuaded during the course of the hearing that the information was relevant to my Determinations on the petitions.

I subsequently received a report from the Chief Electoral Officer and, as I noted at the time, I was extremely impressed with the very careful steps that he had taken both to ensure that there was no breach of secrecy and also to obtain the maximum degree of reliability in the information thus supplied. The information included the number of "fly-in" voters who voted in the three disputed constituencies and the candidates for whom they voted. There was also a final analysis which showed the result in each constituency if the "fly-in" votes were eliminated.

At a later stage in the hearing senior counsel for the petitioners moved for an order that the information so provided in confidence by the Chief Electoral Officer to be should be revealed. He based his application on two grounds, first that in his submission the "fly-in" votes were illegal and he needed to prove that were in fact recorded in each of the constituencies which were the subject of the petitions and, secondly, that in view of an application he intended to make later as to the disallowance of such votes, the particulars of the way the individual "fly-in" voters voted should be disclosed. After careful consideration I concluded that it was permissible for evidence to be led from the Chief Electoral Officer to cover the first ground of the application but I refused the second part of his application basing myself on the judgment of the Full Court in In Re Raglan Election Petition 1947 N.Z.L.R. 363 at 367 and Stove v. Jolliffe (1874) L.R. 9 C. P. 446, 30 L.T. 299. In accordance with my ruling the Chief Electoral Officer subsequently gave evidence from the witness box that the total number of "fly-in" voters who voted in the three disputed constituencies was 445 and he also provided a breakdown of voters from each of the six flights. The evidence was that from Ansett Flight 6752 there were 121 voters, from Flight 6754 108 voters, from Flight 6758 103 voters, from Flight 6760 51 Voters, from Flight 6764 33 voters and from Flight 6766 29 voters. As to the respective constituencies, he gave evidence that there were 308 "fly-in" voters who voted in the Te-Au-O-Tonga constituency, 77 who voted in Takatimu and 60 who voted in Puaikura. That was the extent of the information which was revealed in open court but, as I have mentioned, in the information supplied confidentially to me I was supplied with details of how the votes were actually cast in each constituency and from that point of view I am in a position, should I decide it is proper to do so, to ascertain what would be the result in each constituency, first if the votes for the Cook Islands Party candidates were eliminated and, secondly, if all votes cast including those for the Democratic candidates, were struck off.

There is one other matter of importance which should be mentioned before I pass to examine the detailed submissions on relief. It was quite properly pointed out by the Chief Electoral Officer in his evidence that there was a degree of uncertainty concerning the number of persons arriving on the Ansett planes who voted in the election . Discrepancies between the passenger lists supplied by Air New Zealand (who were acting as agents for Ansett Airlines) and the number of immigration cards completed by arriving passengers, led to the possibility, although it was no more than that, that there were persons who arrived on the planes and did not vote at the special polling booths at the airport but voted at other polling booths on election day. He elaborated by mentioning that on four of the flights there were 21 less immigration cards than there were names on the Air New Zealand passenger lists. Mr Gosselin conceded in cross-examination by Mr Temm that these "missing persons" might not have been qualified to vote. For example, they could have been children or could have comprised some of the many passengers who travelled on the flights but were not on the rolls and did not vote at the election. The evidence indicates that there were 758 persons who flew to Rarotonga on the Ansett flights and 209 of them were persons who "came for the ride" and apparently did not vote. These non voters constituted quite a high percentage, perhaps about 25%, of those who came on the planes. Furthermore, even if these "missing persons" did vote some may have done so in constituencies other than those in which the result was disputed. (See in this regard, the passage from the evidence, cited supra where Mr Sam Samuel infers that some "fly-in voters" were coming to vote in the Mauke and Mitiaro elections and see also the transcript of the news broadcast by Mr Ngarima George on March 27th contained in the Translation Booklet Exhibit 38 where is recorded as saying "Fly voters and they were registered on the roll and voted accordingly as follows: Te-Au-O-Tonga 270; Puaikura 53; Takitumu 62; Aitutaki 69; Atui 9; Manihiki 1; Penrhyn 4; Rakahanga 1; Mangaia 5; Mauke 3; a total of 477").

I should say at this stage that the evidence on these 21 "missing votes" is in my judgment too speculative to be allowed to influence the results which would otherwise flow from disallowance of tainted "fly-in" votes, assuming it should be held that it is otherwise proper to disallow such votes. In addition I do not think there can be any onus on the petitioners to explain or answer the slight uncertainties mentioned by the Electoral Officer. The petitioners are bound only to show that a certain number of identified votes should be disallowed. Moreover if I were later to conclude that the "fly-in" votes should be struck off with the result that the Democratic candidates had the majority of lawful votes, but then allowed the slight evidentiary uncertainties raised by the Chief Electoral Officer to prevent the innocent candidates from gaining seats in constituencies like Takitumu or Puaikura where some of the margins are small, that would be to give the benefit of these remote doubts to the persons least entitled to them. After all, it is trite law that no person should benefit from his own illegal acts.

In his written opening submissions Mr Temm dealt with the question of the relief sought in the following way:

"E. Relief Sought by the Petitioners

33. For purely technical reasons the Petitioners have filed three petitions in respect of each electorate but they seek relief from the Court according to the three alternatives which the Electoral Act provides in Section 79. At Common Law Parliament and later the Courts, had only one power - when unlawful practices were proved, the candidate was unseated and the election declared to be void. By the middle of the last century, new statutes were enacted to remedy the difficulty created when candidates had gone to much expense over an election only to find their money wasted because some other candidate had contaminated the election by illegal practices. The Courts were then given the power to declare the election void as before but in addition, instead of doing that, the Courts were empowered to declare whether any candidate was lawfully elected, and if so, which one.

34. Our Electoral Act gives the Court those alternatives and the petitions which have been filed are directed to each form of relief. But in essence the Petitioners say, subject to submissions to be made later on the law at the conclusion of the evidence, that in this particular matter the same relief should be given in the first place in respect of each electorate - all the Cook Islands Party candidates should be unseated and the Court should declare that they were not and have not been lawfully elected. Further than that the Petitioners submit to the Court that the Court should exercise in its other power to declare the candidates named in the alternative petitions to be lawfully elected as being the persons who secured the highest number of lawful votes. The third alternative is for the Court simply to declare the election in the three electorates void and order by-elections to be held at a time to be stipulated.

35. The appropriate alternative will be the subject of detailed submissions arising out of the legal propositions involved in a case of this kind, but the Petitioners say that a principle which should underlie any decision in this case is that any hardship caused by illegal practices should fall upon those who perpetrated them; by the same token, those who have conducted themselves honourably should not suffer loss financial or otherwise, because of the wrong doing of others. As had been said elsewhere "He who breaks the rules must bear the brunt" and when all the evidence has been called, the Petitioners will submit to Your Honour that those who broke the rules governing this election are the Cook Islands Party and its candidates."

It will be observed that counsel was, perhaps understandably, keeping his options open to some degree and the implications of the differences between those petitions which sought to have the elections in each constituency declared void and those which 'claimed the seat' were not clearly articulated. However, following upon the interlocutory applications which I have mentioned, counsel in his closing submissions unequivocally "claimed the seat" in each case. In the written section of these submissions it was contended that "where unlawful votes can be identified there should be a scrutiny to determine the result counting only lawful votes. If the candidate polling the highest number of votes is not disqualified for electoral malpractices, he should be awarded a seat". Strong reliance was placed on the Taunton Case (1869) 1 O'M & H. 181, 186 and it was emphasised that this decision had the express approval of Lord Denning M.R. in Morgan v. Simpson 1975 1 Q.B. 151, 162; 1974 3 All E.R. 722, 726. In oral submissions counsel expanded on this submission and forcefully argued that while it might seem a convenient and apparently just result to order a by-election in each constituency this would, for a number of reasons, be inconvenient and unjust. In his closing address senior counsel for the respondent candidates contended that if the Court reached the point where the form of relief was under consideration then a by election should be ordered in each case. It will be necessary for me to return to these competing submissions at a later point in this determination.

I must now consider the extent of the Court's powers to disallow tainted votes and, if the necessary power exists, decide whether in the circumstances of this case it is appropriate to employ it. If so, I must then ascertain whether the consequence would be the award of the seats to the unsuccessful Democratic candidates.

I begin with a consideration of the Taunton Case (1869) 1 O'M & H. 181 which is so strongly relied upon by the petitioners. The case was decided in March 1869. On the 31st July of the previous year the Parliamentary Elections Act had come into force. This is a matter of importance in considering the significance of the judgment of Mr. Justice Blackburn. At page 186 he said:

"The further question as to whether or not Mr James should have the seat would depend on the result arrived at after going through the individual dual votes, and seeing, without regard to who it was that corrupted this man or that, what was the majority of uncorrupted voters, and whether there was a majority for anyone who had not rendered himself by personal misconduct incapable of standing."

As Lord Denning M.R. noted in Morgan v. Simpson (supra) at 162 (726) the report is not altogether clear and the learned Master of the Rolls says that the text book by Leigh and Le Marchant entitled The Law of Elections And Election Petitions (2nd Edition 1874) page 75 states the proposition better than does the report. I have not been able to obtain the Second Edition of that treatise but the following passage appears in the Third Edition at page 104:

"When the petition alleges that the unsuccessful candidate at the election had the majority of legal votes, and ought therefore to have been returned, the manner of ascertaining the truth of the allegation is by a scrutiny of the votes.

Electors on behalf of the candidate have the same right to claim the seat for him as the candidate himself.

"In the event of the candidate (C.D.) for whom the seat is claimed having been shown to have obtained the majority of legal votes, it will be the duty of the judge to state in his certificate to the Speaker that A.B. (the sitting member) is unseated, and that C.D. ought to have been seated, and ought to have been returned, and should be returned now". Taunton, Judgments, 357"

A close textual examination of the Parliamentary Elections Act 1868 which was the governing statute at the time of the Taunton Case, shows that the likely basis of the power to disallow the votes of corrupted voters is Section 11, para. 13 of that enactment. This provision, which is reproduced in Rogers at 409, provided as follows:

"At the conclusion of the trial the Judge who tried the petition shall determine whether the member whose return or election is complained of, or any or what other person was duly returned or elected, or whether the election was void, and shall forthwith certify in writing such determination to the Speaker, and upon such certificate being given such determination shall be final to all intents and purposes."

I am inclined to think that the power to disallow tainted or illegal votes arose as a necessary corollary of the duty of determining whether a member whose return or election is complained of or any other person was duly returned or elected. I am fortified in this view by the following passage from Halsbury's Laws of England 4th Edition, Volume 15 para. 924, p. 501:

"On a petition complaining of an undue election the petitioner may complain that the, successful candidate was not elected by a majority of lawful votes and demand a scrutiny.1 The object of the scrutiny is to ascertain by striking off, votes or adding votes which candidate had the majority of lawful votes."

The references given in footnote 1 of this passage are the Taunton Case and York County, West Riding, Southern Division Case (1869) 1 O’M & H. 2.13 at 215. In that case Mr. Baron Martin said:

"In this case the objection to Lord Milton's election was abandoned, and thereupon it became a question of whether the Respondent Beaumont or Mr Stanhope was legally elected. The direct mode of testing that would have been to have ascertained for which of them the greater number of legal votes was given, or, in other words, to have gone into a scrutiny…."

If, as I think, the Judges in these two cases were proposing to conduct what they called "a scrutiny" because the seat was claimed and they were bound under Section 11, para. 13, to determine whether the successful candidate was duly elected, then in view of the marked similarity between that provision and the second part of Section 79(1) of the Cook Islands Electoral Act 1966 I think it must be accepted that Section 79(1) itself gives, by necessary implication, the power to examine and disallow votes and I rule accordingly. Where, as in the petitions I have mentioned, the seat is claimed the Court could not carry out its statutory responsibilities without the power to act in this fashion. This power is distinct and separate from the kind of scrutiny provided for in other sections of the Electoral Act including Sections 57 and 77. Although it is unnecessary to decide the point, I am inclined to the view that the power under Section 77 to order a recount or a scrutiny is primarily directed to cases where it is alleged that there were mistakes by the Electoral Officers in carry out their functions under Sections 57 and 58. The Court could order a further scrutiny and recount in the manner provided in those sections to see if errors had occurred. This interpretation would explain the apparently narrow grounds for disallowance of votes applying to a scrutiny under Section 77(a) and (b). The grounds for disallowance on a scrutiny under Section 77 are that the voter was ineligible to vote or that the voter gave more votes that he was entitled to give (double voting). In such cases of scrutiny and recount under Section 77, which are different in character to the present case, it would be proper for both parties to have scrutineers present. That need does not really arise in cases like the instant one where no quest ion of ineligibility or double voting arises.

Rogers deals with the disallowance of votes at pages 220 to 226. At page 222 he indicates that:

"As a rule a vote, which for any reason is declared to be void, is struck off the score of the candidate who is shown to have received it."

He goes on to point out that Section 25 of the Ballot Act 1872 makes an exception to this general rule. Section 25 of the Ballot Act 1872 is virtually identical to Section 165 of the Electoral Act 1956 (N.Z.) which latter provision provides as follows:

"Where, on the trial of an election petition claiming the seat for any person, a candidate is reported by the Supreme Court to have been proved guilty of bribery, treating, or undue influence in respect of any person who voted at the election, there shall, on a scrutiny, be struck off from the number of votes appearing to have been received by the candidate one vote for every person who voted at the election and is reported to have been proved to have been so bribed, treated, or unduly influenced."

It is not worthy that there is no provision corresponding to Section 25 or Section 165 in the Cook Islands Electoral Act 1966. Rogers continues on page 222 by observing that under Section 25 "a vote, not as in the other case the vote, is to be struck off. A possible explanation of this difference is that its object is specially to punish the guilty candidate, and that this could not always be affected by the ordinary procedure, e.g. the vote of a bribed voter, shown to have been given not to the guilty candidate, but to his opponent, would be struck off the score of the latter and thus the former would gain by his misconduct."

In the absence of a statutory equivalent to Section 25 or Section 165 it seems to me that all votes tainted by bribery or other misconduct must be struck off irrespective of whether they were cast for Cook Islands Party or Democratic candidates. In this respect the concession of counsel for the petitioners to this effect was properly made. Petitioners in cases like this must make a choice. They may establish corrupt practices and other illegalities which entitle them to a declaration that the elections were void. On the other hand they may, as they did here, contend that all tainted votes including those cast for them must be disallowed and take the consequences of such disallowance, subject perhaps to the overriding discretion of the Court to order, in appropriate cases, new elections where disallowing the tainted votes would still not result in the installation of the innocent candidates.

Having concluded that the Court does possess the power to disallow tainted votes where a seat is claimed I must now return to the facts and consider the conflicting submissions as to the appropriate relief but before doing so I should say something about the information supplied to me by the Electoral Officer and the possibility of the secrecy of the ballot being undermined by acting upon that information. As will be seen from the recitation I have given of the Court's actions in relation to the application by the petitioners, I have been at pains at all stages to ensure that secrecy of the ballot was preserved. The information which has been supplied confidentially to me was extracted by the Chief Electoral Officer and his counsel with very great care to ensure absolute secrecy and it was done in such a manner that they themselves at no stage could identify the way in which any person voted. So in this case I am able, if I think fit, to disallow votes and to consider the consequential results on the poll without either the court or any other person knowing precisely how an individual voter cast his vote. In some cases, and this is not one of them, it may be necessary for the Court to ascertain the identity of a particular person and how he voted. As was said by Mr Justice Isaacs in the High Court of Australia in Kean v. Kirby (1920) C.L.R. 449 at 459:

"The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in to guard the franchise against external influences, and the end aimed at is the free election of a representative by a majority of those entitled to vote. Secrecy is provided to guard that freedom of election. It is common ground, however, that in some cases, which need not be particularised, the court is at liberty to enquire how a person voted."

Now in considering the relief to be granted it is immediately apparent that two important principles are in conflict. I must decide between the need on the one side to support the franchise and to ensure that no citizen has his vote cancelled without compelling reason, and, on the other side, to ensure that no candidate guilty of corrupt practices should profit from his wrongdoing. The right of all electors to be given the opportunity to vote lawfully is a matter which must weigh heavily with this Court. It can be argued forcefully therefore that, as suggested by Mr Brown, the proper course is to return the matter to the electors for the purpose of allowing them to express their wishes again. It can be said in favour of this course, that, notwithstanding the evidence of bribery and other illegality, such actions should not be visited upon all those voters who travelled on the Ansett Flights since they may have acted quite innocently. Many of them no doubt took advantage in good faith of the free flights which were offered. The Constitution, of course, recognises their right to vote as duly qualified electors and the Full Court of the Supreme Court of New Zealand in the Maurangi Case 1975 1 N.Z.L.R. 557 has upheld the validity of the requirement that they vote in the Cook Islands and not in New Zealand. Some of the voters who came on the Ansett Flights may well have come to vote at their own expense if the free flights had not been available.

The arguments on the other side supporting the disallowance of the "fly-in" votes were persuasively presented by Mr Temm in his closing address and I think they are best expressed in his own words. In his written submission he contended that:

"The proper and just relief is to unseat the respondents, to recount the lawful votes and disallowing those cast under the influence of bribery or treating, and then to declare the appropriate result."

In support of this general submission he made the following seven points:-

"1. ANY candidate who has been a party to bribery or treating cannot hold his seat.

2. WHERE the highest total of lawful votes is attained by a candidate who was not a party to electoral breaches he should be declared successful.

3. WHERE the highest total of lawful votes is attained by a candidate who is a party to electoral breaches there should be a by election.

4. THE principle that "he who breaks the rules should bear the brunt" should be applied to do justice to honest candidates.

5. THE honest candidate who has spent his own time and money on a campaign, or whose party has done so should not have his expense and troubles made fruitless because of the wrongful acts of the respondents.

6. THE Chief Electoral Officer can trace and scrutinise all unlawful votes cast by passengers on the Ansett planes. There is no evidence that the twenty-one names on the Air New Zealand list identify persons who voted.

7. THE Petitioners submit that all votes cast by the Ansett passengers should be disallowed including those cast for candidates who were innocent of breaches of the Electoral Act."

In oral submissions counsel amplified his argument in relation to these points. He drew attention to the evidence showing that the Democratic Party had spent over $30,000 during the General Election and invited the Court to infer that members of the Party or candidates each spent additional money of their own. He said that many honest citizens helped the candidates in their campaign with long hours of voluntary work. While it might seem a convenient and apparently just result that a by-election should be held for all eight seats held by the respondent candidates it was his submission that it was neither convenient nor just. He submitted it was not convenient because there would be an unnecessary lapse of time before these troubled matters were resolved and he argued that the continuing atmosphere of uncertainty in the Cook Islands could not lightly be discounted. He further submitted that it was not convenient because there would be innocent voters who would find it impossible, for one reason or another, to exercise their rights again in new elections and whose votes in the General Election would thus be nullified by the actions of the respondent candidates and their agents. He stressed that the money which had been spent by honest candidates would just be wasted and so too would the money which was spent by citizens who had the interests of their country at heart and who saved from their own income to come up on the Air Nauru flights.

In approaching these rival contentions, I remind myself first that the main object of the Legislature in dealing with the conduct of elections is to secure the electors in the free exercise of the franchise and whatever interferes with that object violates the purpose of these provision and strikes at the highest interests of the whole body politic. Secondly, I have been involved in extensive research into the law apposite to these matters before me and I have been unable to find any reported instance in the history of electoral laws of New Zealand, Australia, or the United Kingdom where the corruption was of the magnitude as is evidenced here. The amount involved in the bribery is the equivalent of 2.8 per centum of the total budgetary expenditure of the Cook Islands. It involved the use of public money and involved 445 voters voting in the three constituencies with which we are concerned, the votes cast by them representing 9.3 per centum of the total votes cast therein. I can imagine no greater perversion of representative democracy than that huge sums of public money be secretly used by candidates to facilitate bribery of hundreds of voters and thereby secure their re-election. Thirdly, the malpractices which were committed were carried out primarily by persons who were at the time Ministers of the Crown or officers of the Executive Government. This is a disturbing and depressing circumstance for as Mr Justice Brandeis said in Olmstead v. U.S. (1928) 277, U.S. 438, 485:-

"… Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example ... If the Government becomes a lawbreaker it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."

Fourthly, the Chief Electoral Officer was at plains to advise the political parties of any possible breaches of the Electoral Act 1966. He advised the Secretary of the Cook Islands Party of the complaints made to him alleging bribery in relation to the "fly-in" voters. He published extensively the relevant provision of the law namely section 69 of the Act. The Cook Islands Party and their candidates were well alerted of the possible dangers of pursuing the course they did.

I have given the competing submissions on relief long and anxious consideration but in the end I have come to the view that in the special circumstances of this case, where the enormity of the wilful wrong doing is so striking, the dilemma is properly resolved by favouring the principle of free elections and the need to ensure that no guilty candidate profits from his wrongdoing over the general requirement that no voter be disenfranchised without compelling reasons.

Furthermore, I think considerations of fairness help tip the scales in favour of the petitioners. If I were to order new elections there can be little doubt that many of the voters who paid their own way on the Air Nauru flights arranged by the Democratic Party would be unable to afford a further trip. In a new by-election they would be disenfranchised. I think I am entitled to bring that into consideration and balance it against the possibility that by granting a seat to the highest unsuccessful candidate with lawful votes I may be disenfranchising certain others who voted in the last General Election. A line has to be drawn somewhere and in my judgment it is better that there be an unequivocal denunciation of the misdeeds of the offending candidates and their agents than that by-elections be ordered which may allow the transgressors indirectly to profit from their misconduct which, especially in the case of the main perpetrators of the whole scheme, was of vast dimensions. I am fortified in my decision by the traditionally uncompromising attitude exhibited by the Courts over the centuries toward electoral malpractices. By way of illustration I refer to the judgment of Mr Justice Grove in the Wakefield Case (1874) 2 O’M & H. 100 at 101 where the Learned Judge said that:

"Corruption will try to beat the law, but, generally speaking - and I think in the long run I may say universally - the law will end in defeating corruption."

In the result, I am prepared to accept that the proper course is to disallow all of the Ansett "fly-in" votes and to thereupon ascertain which candidates had the majority of lawful votes in each constituency and then determine such candidates to have been duly elected.

The figures supplied to me by the Chief Electoral Officer, the accuracy of which I accept unreservedly, produced the following results in each of the constituencies if all of the fly-in votes are disallowed:-

	Declared Result
(P. 1699 1702
Cook Islands Gazette)	Less Ansett
Fly-In Votes	Adjusted Final
Result	
(Successful candidates after disallowance of Ansett Fly-In votes marked with an asterisk)	
Te-Au-O-Tonga	
Bishop	41	2	39	
Browne	1363	281	1082	
Davis	1248	6	1242*	
Goodwin	1173	4	1169*	
Henry	1420	286	1134	
Ingram	1201	3	1198*	
Jack	1323	274	1049	
Kamana	1353	283	1070	
Piri	1173	4	1169*	
Tavioni	39	3	36	
Tixier	40	1	39	
	
Takitumu	
Cowan	530	-	530*	
Keenan	31	-	31	
Matapo	603	76	527	
Matenga	565	1	564*	
A.P. Short	599	76	523	
I. Short	564	-	564*	
Tetonga	555	74	481	
	
Puaikura	
Heather	509	3	506*	
Mareti	541	55	486	
Napa	490	3	487*	
Pirangi	517	48	469	
Williams	37	2	35	

My Determinations on the petitions affecting these three constituencies will therefore be as follows:-

1. The petitioners, having established bribery and serious misconduct, namely, a breach or breaches of the Public Moneys Act 1969, I determine under the second part of Section 79(1) that the Respondent candidates namely Lionel George Browne, Albert Royle Henry, Teanua Dan Kamana, Rei Jack (Constituency of Te-Au-O-Tonga) Matapo Matapo, Apenera Pera Short (Constituency of Takitumu), Jimmy Mareiti and Raymond Tapai Pirangi (Constituency of Puaikura), were not duly elected and in the case of each of these candidates I declare his election void.

2. The votes shown in the middle column headed "Less Ansett Fly In Votes" in the Schedule which appears at page 67 of this Determination are hereby disallowed and struck off as being unlawful votes tainted by bribery and/or serious misconduct, namely a breach or breaches of the Public Moneys Act 1969.

3. It having been shown that the following candidates have obtained the majority of lawful votes I determine that they should have been duly elected and I now declare them to be duly elected:

Te-Au-O-Tonga Constituency:

Thomas Robert Alexander Harries Davis
Fred Goodwin
Vincent Alfred Kura Teratu Ingram
Teariki Piri

Takitumu Constituency:

William Cowan
Iaveta Short

Puaikura Constituency:

William Heather
Harry Napa

4. I determine that Teariki Matenga whose election as one of the successful candidates for the Takitumu Constituency was never challenged in these Petitions was duly elected and I accordingly confirm his election.

5. Pursuant to Section 79(2) I direct the Registrar to forthwith transmit my determination to the Chief Electoral Officer so that he may attend to the public notification that is required by Section 79(2)(a) and the declaration that is required by Section 79(2)(c). There will, of course, be no declaration under Section 79(2)(b) or under course Section 7(5). (The consequence of the foregoing determinations is to immediately unseat the Respondent candidates named in paragraph (1) above and as soon as the Chief Electoral Officer makes his declaration under Section 79(2)(c) the persons referred to in paragraph (3) hereof will immediately become the duly elected members in their respective constituencies along with the said Teariki Matenga whose position as a duly elected candidate in the Takitumu Constituency remains unaltered.)

6. In case the Chief Electoral Officer should require any ancillary orders on any matters arising out of the foregoing Determinations, I reserve to him and his counsel liberty to apply for directions.

7. Since I did not have the benefit of any submissions on the question of costs I reserve the rights of the parties to make submissions thereon. I should make it clear, however, that I am not prepared to receive any submission that an order for costs should, pursuant to Section 81, be made against the Chief Electoral Officer or the Returning Officers because I consider that they acted in an exemplary fashion and cannot be criticised in any way. Although no allegations were made against them they were properly joined as Respondents in these Proceedings since it is a commonplace of electoral law that such persons must be made parties. It follows from this, and to avoid any misunderstanding the point should be stressed, that no adverse inferences should be drawn against such officials merely because of their joinder in electoral proceedings such as these.

Submissions on costs shall be made in writing in the first instance. If I desire to hear counsel at any stage I will advise accordingly.

8. Pursuant to section 81(2), I direct that the deposits accompanying the Petitions shall be returned to the persons who paid the same.

9. I direct the Registrar to hand the whole of the evidence and exhibits to the Superintendent of Police for consideration. It will, as always, be a matter solely for the Police, in consultation with their legal advisors, to decide whether to launch prosecutions under Section 69 of the Electoral Act, under the Public Moneys Act, or under any other relevant Cook Islands statute.

In conclusion I would thank counsel for the various parties for their helpful submissions. Their duties have indeed been onerous in this case and they have all discharged them admirably. I would also record here my profound appreciation of the valuable assistance given to me by Mr D.A.R. Williams who not only ensured that the lengthy hearings in New Zealand and the Cook Islands were conducted with minimum inconvenience to myself, but, as "amicus curiae", gave me the utmost help.

DONNE CJ

Solicitors for the Petitioners: Short & Tylor, Rarotonga
Solicitor for the First Respondent: J.G. Collinge, Auckland
Solicitors for the Second and Third Respondents: Russell McVeagh McKenzie Bartleet & Co, Auckland