Why Wigmore win struck out
By Charles Pitt,
Political Editor

Robert Wigmore

The High Court has found that Robert Wigmore, who won the Titikaveka seat in the general election on 26 September, was not properly qualified to stand as a candidate. This was although he had properly resigned as a Crown servant.
High Court Justice Tom Weston declared the Titikaveka result void and directed that a by-election be called. His reasoning and decision are set out in a lengthy written judgment issued on 8 December 2006.
Democratic Party candidate Wigmore had won the Titikaveka seat by 325 votes to Cook Islands Party candidate Tiki Matapo’s 276.
Representing Matapo were Norman George, Tevita Vakalalabure and Sir Geoffrey Henry.
Tina Browne and Sam Hood represented Robert Wigmore. Crown counsel Tingika Elikana represented the Chief Electoral Officer.
To recap, the Electoral petition laid by Matapo and heard in the High Court on 1 December, made two allegations.
First, was that Wigmore had not resigned from the Board of the Cook Islands Investment Corporation (“CIIC”). As a consequence, he remained a Crown Servant as defined in the Electoral Act and, was therefore not qualified to be a candidate in terms of section 8 of the Act. As a result, Matapo should be declared the winner of the Titikaveka seat.
The second, alleged bribery under section 88 of the Act in that Wigmore was said to have made a promise to Travis Moore to seal the access road to his home from the public road in order to induce Moore to vote for Wigmore. In submissions, George said the allegation relied solely on section 88(a) of the Act.
Matapo argued that although this was just one act of bribery it should nevertheless void the election in the Titikaveka constituency in terms of section 98(1) with the result that the he should be declared the successful candidate.
VOTE
The cross-petition raised a number of matters, most of which were withdrawn, leaving only one for consideration. It was alleged that Travis Moore did not qualify to be a voter in the Titikaveka constituency and that his vote should be disallowed.
This allegation has some relevance to the bribery allegation referred to above in that section 88(a) speaks in terms of inducement to an elector. If Moore was not properly qualified to vote in the Titikaveka constituency then the issue of bribery would more readily fall to be considered in terms of section 88(b) of the Act
Counsel for Matapo strongly argued that any resignation, in order to be effective, needed to be in writing and signed by Wigmore. It was said that this was the usual practice. Reference was made to one authority in support of this proposition and statutory analogies were also given. Counsel argued that a resignation could not be effected by an agent on behalf of a principal.
Justice Weston said there was no statutory or other formal process describing how a resignation should occur. There appeared to be nothing preventing a director resigning immediately. Equally, there appeared to be nothing that required a director to give formal written notice of resignation based upon his or her own signature.
Justice Weston found Wigmore resigned as a member of the Board of the Cook Islands Investment Corporation (CIIC) on 10 August 2006, at an exact time uncertain, but prior to noon on that day.
Having found that Wigmore had properly resigned as a Crown servant, he then dealt with the issue of whether Wigmore was qualified to be a candidate.
Justice Weston said that a proper interpretation of the Act required Wigmore to have resigned from CIIC by 9 August 2006 when his Nomination Form was completed and accepted by the Deputy Chief Electoral Officer.
As his resignation did not occur until the next day his nomination breached the Act. He was not qualified to be a candidate.
Having found that the First Respondent was not properly qualified Justice Weston declared the election in the Titikaveka constituency void and directed the calling of a by-election.
As regards the issue of bribery involving Travis Moore, Wigmore’s counsel argued Moore was not resident in the Titikaveka electorate as he had not spent three consecutive months there so had not qualified for residency.
Justice Weston found that Moore was properly qualified to be an elector in Titikaveka because that was where he resided. This was notwithstanding the fact that he travelled to and worked in Aitutaki for a total period of 31 days in June/July.
Continuous residency did not prevent an elector from moving outside the relevant constituency to undertake work. If it did, no one could afford to leave their constituency to work at some other place.
The fact that an elector may then spend nights living in a hotel did not necessarily mean that a person had ceased to reside at what was otherwise their place of residence.
OFFER
As to whether Wigmore’s offer to fix Moore’s access road to his house constituted a bribe, Justice Weston said despite areas of agreement, there was an apparent conflict in two important respects:
(a) as to whether the Wigmore asked Moore to support him in the sense of voting for him;
(b) as to whether there was discussion about the candidate’s wider election pledges (to seal roads generally) or whether the conversation was limited to a discussion of Moore’s driveway.
Both witnesses were equally clear in their recollection of events. On the face of it, said Justice Weston, there was an absolute conflict of evidence. He said both witnesses gave their evidence honestly as they recalled events. He believed the apparent conflict was more a matter of perception than reality.
Moore, unsurprisingly, focused on the reference to his driveway. Wigmore, by contrast, was acting consistently with the election pledges made by him as part of his campaign. This meant that what Wigmore said, and what Moore heard, were two different things. Justice Weston said he believed that Wigmore was unwise specifically to mention Moore’s driveway.
Justice Weston accepted that Wigmore had made general election pledges to seal certain roads in his constituency. While there was some imprecision about the identity of those roads, He found that Wigmore made such pledges. He did not believe such pledges fell within the definition of “bribery”.
If they did, any promise by a candidate (or party) to implement policies if elected would expose the candidate to bribery allegations. That is not the intention of the statute said Justice Weston.
SLIGHT
The difference between an instance that is bribery, and one that is not, may sometimes be relatively slight. In the present case, Wigmore’s specific reference to Moore’s drive brought him close to that border line but did not take it over it.
In concluding that there was no act of bribery Justice Weston referred to 2004, when Wigmore unsuccessfully defended a petition where allegations of this nature were ventilated.
He said it seemed scarcely credible that Wigmore would make the same mistakes again in 2006. While Wigmore had acted unwisely, Justice Weston did not think that he acted in a way that amounted to bribery.

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