IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
MISC. 26/1983

IN THE MATTER
of an election of members of the Parliament of the Cook Islands
held on the 30th day of March 1983

AND

IN THE MATTER
of a Petition by a Candidate and Electors of the Constituency of Ruaau
PETITIONERS

AND

HARRY TAUEI NAPA
FIRST RESPONDENT

AND

ANDREW TURUA
SECOND RESPONDENT

AND

JIMMY TEINAKORE TAMAIVA
THIRD RESPONDENT

Messrs Matheson and Mayne for petitioners
Mr Ingram for first respondent
Messrs Mitchell and Manarangi for second and third respondents

Date of Judgment: 23rd May 1983

RULING OF SPEIGHT C.J.

I deal only at the moment with the ground of irregularity which was pleaded in Ground 1(d)(iv) of the Petition, supported by the particulars filed on 13th May. Section 73(I) of the Act deals with the procedures for opening the ballot box containing postal votes and the counting of them and their incorporation into the count of other votes. The allegation as expanded in the particulars and developed in submissions are that contrary to the stated obligation in Section 73(I)(1), the Returning Officer did not open the ballot box. The likelihood is that the ballot box was opened by Miss Anderson. The evidence from Mr. Turua the Chief Electoral Officer is that it was Miss Anderson’s duty to receive the postal votes as they came through the mail from time to time and to check, by opening the outer envelope, the constituency, the voter’s number and to compare it with the electoral roll and with the counter foils of the postal votes earlier issued to persons wishing a postal vote. This process is similar to that carried on at the ordinary polling place by Poll Clerks under the supervision of the Presiding Officer during voting. In the case of the ordinary polling place, under Section 47, at the close of voting the Presiding Officer opens the ballot box and with his staff does a preliminary count. That procedure takes place under Section 73 in respect of postal votes at the polling place which has been designated in respect of postal votes. Miss Anderson fulfilled the function similar to that of the Presiding Officer at a Polling booth, when she did the checking against the rolls and counter foils and the like. In accordance with approved procedure she then resealed the inside envelope into the outside envelope and then placed them for safety, into the ballot box as an ordinary voter would do. The next step under Section 73(I) subsection (1) is for the opening of that ballot box and subsequently under subsection (3) the counting.

Now the objection which has been taken is that although Miss Anderson was entitled to open the mail, and then put the votes into the ballot box she was not a person qualified to open the box. The irregularity contended for, is that she purported to act as the Returning Officer by virtue of being a "substitute". This is based upon the written document which was produced in which Mr Turua said that pursuant to section 4(d) he appointed Miss Anderson as "Deputy Returning Officer" for all constituencies on the island of Rarotonga for the purpose of receiving postal votes. Dr Matheson’s argument is that this purported to make her a substitute Returning Officer and that the grounds upon which a substitute could be appointed had not been made out namely that the Returning Officer was neither ill, absent, dead or removed from office. That is, of course, common ground. Mr. Tamaiva was in good health and present on election day. But the basis of Dr Matheson's argument that that was the role of Miss Anderson, according to her warrant pursuant to section 4(d). There is in fact no subsection and it was an invalid reference. There is section 4(1)(d) for the appointment of substitutes. There is also the provision of Section 4(4) (perhaps it is only coincidence that ‘d’ is the fourth letter of the alphabet) and 4(4) allows Deputy Returning Officers and Poll Clerks to be appointed. It is quite clear from the evidence of Mr. Turua and of Mr. Tamaiva that they regarded Miss Anderson as a Deputy. In my view there is no magic in the reference to the non-existent subsection pf Section 4(d). The general principle of law in construing instruments of this sort is to pay regard to the words, not to section references. By analogy in the field of criminal law, one can consider the references to the section under which a person is charged under the Crimes Act. The charge the person faces is understood on the wording spelt out in the information, and an erroneous section reference becomes irrelevant. It is clear both from the wording of the document and from the evidence of Mr. Turua and Mr. Tamaiva that Miss Anderson was appointed as a Deputy Returning Officer and there is of course such an office under the Act. That to a large extent in my view disposes of the submissions made that it was an improper person carrying out functions that she was not entitled to carry out. Dr Matheson however anticipated that argument by vigorous analysis of subsection 4(4). It is submitted by him that a Deputy Returning Officer and Poll Clerks may be appointed for the effective "taking of the poll" at every polling booth. The submission is that powers of the Deputy (and it is to be noticed that this is not the powers of a Poll Clerk) are to substitute for the Returning Officer for the taking of the Poll and no more. He claims that that does not include opening the ballot box. I don’t think that this submission is sound. There is as far as I can see in the Act only one other reference to the taking of the poll and that is section 78 where it says:

"Certain irregularities to be disregarded - No election shall be declared void by reason of any irregularity in any of the proceedings preliminary to the polling or by reason of any failure to hold a poll at any place appointed for holding a poll, or to comply with the directions contained or incorporated in this Act as to the taking of the poll or the counting of the votes or by reason of any mistake, in the use of the forms contained or incorporated in this Act if it appears to the Judge that the election was conducted in accordance with the principles laid down in and by this Act and that the irregularity, failure, or mistake did not affect the result of the election."

The counting of the votes of course is the process to which everything else is geared and in my view the taking of the ballot includes all those machinery steps which lead up to the placing into the hands of the counting officer of the voting papers however they have been accumulated. In respect of the ordinary procedures under Section 47, the Presiding Officer with the assistance of his clerks is given the duties of getting the votes into the ballot box and he is then allowed to open the box and he commences the preliminary count, later followed by the final count. In respect of the Postal votes, section 73 is different and the Returning Officer or his Deputy has a number of functions during polling similar to those of a presiding officer at a polling place. It is not until we get to section 73(I)(3) that the counting takes place and it is to be noted in this instance that the counting was done by Mr. Tamaiva according to the evidence of Mr. Turua. The steps prior to that involved the issuing of the postal votes, receiving in the mail, the checking of them against the roll by Miss Anderson, the placing from time to time into the ballot box as a matter of safety and finally their transfer by her to the Chief Electoral Officer who gave them to Mr. Tamaiva for counting. In my view the taking of the poll is clearly distinguished from the counting of the votes, and it includes all those steps up to the time when they are delivered to the counter. It may be noted in this respect that under Section 73(I), the opening of the ballot box and the extracting of the envelopes is entrusted to the Returning Officer and such members of his staff as are authorised by him.

I propose to discuss the only irregularity which the document appears to reveal and it is this. Whereas Section 4(4) says a Deputy will be appointed by the Returning Officer with the consent of the Chief Electoral Officer the document (in so far as a document is required for the appointment of a deputy) is signed by the Chief Electoral Officer though we note that the Returning Officer Mr. Tamaiva knew of and was consenting to it. It appears that the matters relating to Miss Anderson were attended to at a meeting of the Chief Electoral Officer and all Rarotonga Returning Officers at a meeting held on 23 February when in particular postal voting procedures were decided upon and it was decided that Miss Anderson should be appointed for this purpose. It appears to me to matter not that Mr. Turua signed the document appointing her for all constituencies with all Returning Officers consenting at the time matter was discussed or vice versa. In particular one notes that Section 4 subsection 3 says:

"Every person appointed as aforesaid shall exercise his duties and functions subject to the control of the Chief Electoral Officer, and shall comply with any directions received from him from time to time."

So that a Chief Electoral Officer can take any steps in lieu of a Returning Officer.

Further there is nothing in subsection 4 requiring the appointment of the Deputy by the Returning Officer to be in writing. An agreement reached between the Chief Electoral Officer and all his Returning Officers that Miss Anderson should be, as was determined on 23 February, their assistant for the purpose of dealing with the postal votes, in my view formally appointed her a Deputy Returning Officer for the taking of the poll which in my view encompassed all steps up to and including the delivery of votes received into the hands of the approved counting officer. Insofar as the only irregularity that I can detect is that a non-existent subsection reference was typed on to a document which the Act it self does not require, and insofar as the functions of appointing and consenting to Miss Anderson’s role was done jointly by the Chief Electoral Officer with the concurrence of his Returning Officers may be irregularities, they are in my view not such as to mean that her slightly irregular mode of appointment was in any way contrary to the principles of the Act nor was the result of the poll likely to be affected. Given her obvious experience and competence there is in my view no real possibility that there has been a mistake made by her which might not have been made by Mr Tamaiva, such as dropping on the floor a postal vote between the time when it was taken out of the ballot box and handed to the counting officer which was the most extreme possibility suggested. For all these reasons I conclude that grounds of irregularity have not been made out. I will incorporate this decision along with those on Grounds 2 and 5 which I dealt with the other day when I give my final determination after we have heard the argument number 1.

SPEIGHT C.J.