Court News

Week ending Wednesday, 25 August, 2010

JP regrets no mental health facilities
First land case goes to the Privy Council
Peace Garden makeover

Justice of the peace John Kenning presided over a number of cases in the high court yesterday:

James Engu has been incarcerated for six months on a charge that he is of unsound mind. He’s been in and out of court, but psychological evaluation reports affirm that he is unfit to enter a plea.

Kenning yesterday raised the issue of the country’s lack of support networks and facilities for people with mental illness, and regretted that often times the only option is to incarcerate them. “It’s a sad reflection upon ourselves that we are unable to deal with this situation,” Kenning said. “(We need to) find support to deal with people like that in our community... The only option available to us is incarceration for something he’s yet to be tried on.”

He denied counsel Lavenia Rokoika’s application for bail, citing the safety concerns raised by people in Engu’s village as support.

Titikaveka resident Sonny Williams stood and thanked Kenning for remanding Engu back into custody. “What we are concerned with is the violence associated with his mental state,” Williams said. He said that Engu chased his family with a bush knife, threatening to “cut off their heads”, and that the defendant has in the past faced serious criminal charges in Australia.

Kenning ordered a report from Dr Fariu and remanded Engu back into custody. John Matapo – charged with assault on a female. The victim asked that the judge treat the defendant “with leniency” as he’s the household breadwinner. Probation recommended a stern warning, but Kenning said he wanted to “make a little more of an impression than that”. He convicted and fined the defendant $150 plus $30 court costs and ordered him to pay $20 in medical fees. “Throwing a punch doesn’t work,” he reminded the defendant.

A man with name suppression appeared for a call-over on a charge of having sexual intercourse with a minor. Prosecutor Catherine Evans noted that this appearance was arranged just to monitor the defendant, and that the victim is living in Australia so there are issues surrounding the setting of a trial date. The case was adjourned to October 7.

Defence counsel Norman George could not be in court yesterday, so a number of his cases were adjourned to next week.

Victoria Dearlove – pleaded guilty to careless driving charge dating back to October of last year and was fined $50 plus $30 court costs.

Semisi Taufahema – pleaded guilty to dangerous driving and was convicted and fined $200 plus $30 court costs. He was also ordered to pay reparations not exceeding the amount of $984 in the event that the victim elects to repair his motorbike.

Christopher Tangatakino – initially pleaded guilty to driving with excess breath alcohol, but police prosecutor Tuaine Manavaroa hastened to add that he was also being charged with dangerous driving causing injury. Kenning replied that if that’s the case, police should be laying a charge of causing death or bodily harm while under the influence of drink or drugs instead of holding him on two separate charges. The case was adjourned to next week to allow police time to lay the correct charge and give the defendant time to seek counsel.

A minor with name suppression appeared before the court, but his case was referred to children’s court on August 27.

Tarairaro Ravaroa – pleaded guilty to careless driving and was convicted and fined $50 plus $30 court costs.

Teariki Araipu – vacated a previous not guilty plea to a charge of being party to an offence and pleaded guilty. He will appear before the court on September 22.

• Rachel Reeves

The Maire Nui Botanical Gardens are a landmark denoting the 58 acres of Takitumu land in question. 10081918

For the first time in history, the British Privy Council will hear a Cook Islands land court case.

Ownership of the land in question – Tuarea Nui Section 40 – has been hotly contested for the better part of a century.

June Baudinet on behalf of Ngati Raina has for six years been in and out of court over the 58 acres of Takitumu land. She and her family believe that the section was robbed from their ancestors, and they are prepared to take Elena Tavioni for Makea Kopu Ariki and the Macquarie family to the Privy Council for it.

“We believe that our land was taken by Makea,” Baudinet said. “Makea ariki have no land in Takitumu. The truth will come out.”

The story dates back to 1903, when Colonel Walter Gudgeon and Takitumu ariki Pa Ariki Maretu were jointly presiding over a newly-established land court.

They ordered an investigation into the title of disputed Tuarea Nui Section 40, Takitumu land that Baudinet says belonged to Ngati Raina.

Te Au O Tonga ariki Makea Takau submitted to the court in writing that she had a vested “life interest only and no power of device” with regards to the section.

That clause, Baudinet says, means Makea Takau should have lost rights to the section upon her death.

“When she died, the land should have gone back to Ngati Raina,” she said.

The clause “life interest only and no power of device” was crossed out with ink, but the correction was not initialled by a judge.

The court sealed its order, giving rights to the section to Makea Takau. The order did not mention the “life interest only and no power of device” phrase.

In 1933, Ngati Raina applied to amend the court order that they feel was wrongly delivered. Judge Ayson said that he only had the power to grant a re-hearing, so the family applied for a re-hearing but their application was denied.

The land, then, stayed with the descendents of Te Au O Tonga ariki. The title at present belongs to Makeanui Teremoana Ariki, the mother of Meremaraea Macquarie.

In 2004, Baudinet on behalf of Ngati Raina filed an order in the high court to re-claim Tuarea Nui Section 40.

Four years later, Justice Kenneth Hingston amended the order that had been sealed a century before by Colonel Gudgeon and Pa Ariki Maretu.

Hingston ruled that “the current records of this block do not reflect the intention of the Court...” and also held that ‘res judicata’ did not apply, effectively re-opening the case. (Res judicata means a case is closed and not subject to any more appeals).

Last year, Elena Tavioni for Makea Kopu Ariki and Meremaraea Macquarie applied for special leave to appeal.

Last month, Sir Ian Barker of the Cook Islands Court of Appeal reversed Hingston’s 2008 ruling. Baudinet is now arguing that he made the motion without the jurisdiction to do so.

“The President of the Court of Appeal Sir Ian Barker appeared to predetermine at the commencement of the appeal, that special leave to appeal should be granted, in breach of (the constitution) and the rules of natural justice,” reads Baudinet’s notice of appeal.

She maintains that Barker unfairly and illegally delivered a judgment without properly hearing the case.

Her appeal takes issue with the fact that the court granted Tavioni and Macquarie special leave to appeal even though Macquarie filed her appeal more than 300 days after the appeal period had expired.

Baudinet’s appeal also says that “the grounds on which (Tavioni) succeeded, were grounds not raised before Justice Hingston, and not raised in her applications for special leave to appeal”.

Baudinet is essentially arguing that Barker did not have the legal authority to reverse Hingston’s decision.

So that leaves the opposing parties at odds. A date is yet to be confirmed for the one-day Privy Council hearing in London, a trip which will cost each party between $20,000 and $40,000.

Tina Browne will represent Elena Tavioni and the Macquaries and Ross Holmes will act for June Baudinet.

• Rachel Reeves

Past PPSEAWA president Margaret Karika Ariki and Jenny Barrie take a peaceful rest on a bench at the Peace Garden at Peace Day a few years ago. 07092402

The Peace Garden next to the Cook Islands Library and Museum will undergo a major makeover in the weeks leading up to International Peace Day on September 21.

The brainchild of Eleitino Paddy Walker, the garden is part of a Pan Pacific Southeast Asia Women’s Association (PPSEAWA) project to promote peace, in line with UNESCO’s ‘Decade of Peace’ initiative.

Ngati Makea gifted the land flanking the Library and Museum to the cause, and a number of green thumbs gathered to establish the Pacific Peace Garden Trust.

The garden serves as a place for people to picnic, think, relax and rest, and it’s home to a weekly children’s reading programme and International Peace Day functions.

At present, the Cook Islands Library and Museum pays for mowing, but otherwise the garden is not being actively maintained.

Late last year, PPSEAWA sought funding from Green Grants, an American organisation, to renovate the peace garden, and received US$3000.

John Johnston of Heliconia Hideaway and Nick Reeves of Te Vakaroa, together with the rest of the women on the PPSEAWA Peace Council, have pledged to tidy up the garden. On the list of things to do are replacing the pathways, planting new flora with an emphasis on native plants and re-doing the landscape.

The council also hopes to purchase new garden furniture and welcomes donations to that end.

The council, chaired by Mathilda Miria-Tairea, has sought assistance from the Ministry of Justice, which sends probationers to clean and maintain the garden on a regular basis to log community service hours.

“We hope it will be a wonderful place for people to rest, think and read,” Walker said.

The new garden will formally re-open on International Peace Day function.

• Rachel Reeves