Justice Weston to crack ‘tough nut’ poll ruling
By Charles Pitt

Justice Tom Weston has reserved his decision after a lengthy hearing into the electoral petition lodged by the Cook Islands Party’s Titikaveka candidate in the 26 September election. Tiki Matapo is challenging the election of the Democratic Party’s Robert Wigmore, who took the seat 325 votes to 276.
The hearing began before a full public gallery at 9am on Friday. While there was an hour and a half break for lunch at 1pm, it concluded at 4.50pm with Justice Weston advising his decision would be delivered through the Registrar at the end of the coming week.
Justice Weston was to remark: “It’s actually quite a tough nut to crack.”
His Honour heard two allegations against Wigmore. One for failing to resign his position as a Crown servant and the other for bribery.
LAWYERS
Tina Browne appeared for Wigmore, assisted by Sam Hood.
Norman George appeared for Matapo assisted by Sir Geoffrey Henry and Tevita Vakalalabure. Crown counsel Tingika Elikana appeared for the Chief Electoral Officer.
Matapo’s allegation was that Wigmore had not personally resigned his position as a Crown servant on the board of the Cook Islands Investment Corporation. This breached s8(2)(e) and 31(1)(a) of the Electoral Act which bars serving Crown servants from being nominated as an election candidate.
Matapo also alleged Wigmore attempted to bribe an elector Travis Moore with a promise to fix the access road to his home from the main road in order to induce Moore to vote for him. This being a breach of s88 of the Act.
WITHDRAWN
The cross petition filed by Wigmore against Matapo alleging treating and challenging the votes of three electors, was withdrawn.
The court dealt with the nomination issue first then the bribery issue. Tevita Vakalalabure opened, introducing the case for Matapo and surprised everyone including Justice Weston when he referred to Justice Weston as “My Lord!”
It was then pointed out that that was the approach in the Fijian Courts. An issue raised was that just because Wigmore had indicated a wish to resign didn’t mean he had resigned. It had to be determined if Wigmore’s termination was proper.
Sir Geoffrey Henry then rose to deliver a submission on s31(1)(a) relating to nomination papers being signed by nominees qualified to be so nominated.
A noted political orator, many were surprised that Sir Geoffrey rolled his submission off a velvet tongue in the manner of a seasoned QC. It became known later that he had made submissions previously in the higher courts.
MEANING
Sir Geoffrey asked: ”What is the plain, ordinary meaning of the word ‘nominated?’
“The candidate,” said Sir Geoffrey, “is the candidate when he is clearly nominated under s2 of the Act.”
Sir Geoffrey said the case stood or fell on s97.
A number of witnesses were called by Browne, including Minister for the Cook Islands Investment Corporation, Tangata Vavia, who said he could not recall Wigmore’s exact words but was sure his intention was to resign.
Builder John Short, who was on Wigmore’s committee, said he spoke to Wigmore who was in Auckland, on 2 August and twice on 7 August. Short said Wigmore never gave him a written resignation.
Wigmore said Short rang him on 7 August to say he did the letter but had not put in it because of his (Wigmore’s) health. Wigmore asked Short to put the letter in.
Under cross-examinations by George, Wigmore said he signed his nomination papers and sent then in by fax. Wigmore said no-one explained to him the law regarding resigning from the CIIC.
DATE
There was some discussion over when Wigmore’s resignation was effective from. Sir Geoffrey said there was no date or time stamp affixed to the letter.
Ratu Mato, of the Deputy Prime Minister’s office, said he received the letter signed by Vavia about Wigmore’s resignation at 10.30am and he took it immediately to the Court registrar.
He said the application for nomination was filed on 9August because he was aware Wigmore had not resigned so he held it back until 2 other notices were received for resignations from public service jobs for Keu Mataroa and William Heather Jnr.
The nominations were given to the deputy chief electoral officer.
‘ERROR’
In a reference to s97 of the Act, Sir Geoffrey argued that a failure to resign was not an “irregularity” under the Act but an “error”, a “transgression.” He said it applied to electoral office officials not candidates and referred to a previous court decision. However, Elikana and Browne argued otherwise.
Sir Geoffrey submitted Wigmore never resigned and that s31(1)(a) and s8(2)(b) were mandatory.
He submitted Wigmore be declared not elected if the case was proved and Matapo elected or the election be voided and a byelection ordered. It was only the second case of its kind, said Sir Geoffrey.
ROAD
In the bribery allegation involving Moore, Browne argued that the promise to fix the road was consistent with the Demo Party manifesto to upgrade all roads and a common pre-election pledge made by politicians of both parties.
The road’s other residents would in due course also benefit so it was not a specific offer.
Joseph Iro, a member of Wigmore’s committee, gave evidence as to Wigmore’s pledge to complete projects unfinished since the 2004 election being fixing the roads, building a gym and tackling pollution.
Browne also argued that Moore had not spent three consecutive months in the Titikaveka electorate after leaving Aitutaki at the end of May.
Although Moore ended his permanent residency there to settle in Vaimaanga, travel records from Air Raro showed he travelled back and forth.
CULTURE
In his closing address George saying, “I will take a few bites here and there.” referred to previous cases on bribery. He said Moore was under no illusion Wigmore sought his vote.
He referred to the subtle nature of local people. Justice Weston said he would view the evidence in a cultural context different to his own.
As to remedy, George said if the court returns a finding of corrupt act, the election be declared void and a byelection be ordered.
In her address, Browne held firm on the claim Moore did not lose his residency qualification in Aitutaki because he did not gain residency in Rarotonga. The court is to consider the bench mark date for the start of the three months period.
On the bribery allegation, Browne stuck to her argument that the offer was part of the party election pledge something common in the Cook Islands.
In wrapping up George said after 31 May Moore had no home in Aitutaki. He said as the offer to fix the road was made just before the election, there could be no mistake about the intent.
Finally, George said: “My submission is very daringly made!”
Justice Weston exhibiting a very sharp wit, replied, “I’m looking around for the jury!”

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