AKAROA ELECTION PETITION.

Press, Volume XLVIII, Issue 7777, 3 February 1891, Page 3

AKAROA ELECTION PETITION.

JUDGMENT OP THB COUBT.

I Their Honors Mr Justice Williams and I "MV Jaatioe Denniston delivered judgment ' yesterday in the case of the Akaroa Election Petition at the Resident Magistrate's Court, Lytteiton. Mr J. B. Fisher appeared for the petitioner, Mr A. I. McGregor, and Sir Robert Sfcoat, with him Mr M. Donnelly, for the respondent, Mr J. Joyce. Tbe Court was crowded by men evidently taking great interest in the proceedings. Mr Justice "Williams delivered the judgment, which was written, and was as under:—There is no doubt that an irregularity has been committed, and that the ten country polling places should have been kept opeu until 7 p.m., instead of having been closed at 6 p.m. The question is how far tbia irregularity affects the validity of the election. It was contended by Mr Fisher that tbe law in New Zealand ou the subject of avoiding elections differed from the law of England. By the English Ballot Act, 35 and 36 Victoria, c '&, s. 13, it isjprovided that no election shall be declared invalid by reason of a non-compliance with the rules contained in the firso schedule to the Act, if it appears to the tribunal having cognisance of tbe question that the election ) was conducted in accordance with tbe principles laid down in the body of the Act, and that such non-com-pliance did not affect* the result of the election. The provisions as to the hours of polling was not, however, contained in the schedule, nor was it in the body of the Act, but it bad been enacted by a separate statute,' the present; English statute on the subject being 48 Vie, v. 10, s. 1. In New Zealand the enactments as to the hours of polling are contained in the body of a Statute, and there is no provision iv ' our legislation similar to section 13 of the English Ballot Act. Section 13 instated by the Court of Common Pleas in Woodward v Sarso2S (L.R. 10 C.P., p. 733-at p. 7al)to-be"an enactment ex abundanti cau tela, declaring that to be the law applicable to elections under the Ballot Act, which would have been the law applied if this section had not existed." An election court in England, however, in determining whether or no an electiou had been invalidated by closing the poll prematurely would not be affected by section 13, as the premature closing is not a non-compliance with any rule in tbe schedule, and although therefore in England as here, the hours of polling are positively fixed by statute, yet there can be no doubt that election tribunals in England have frequently declined to declare an election, invalid ou the mere ground that the provisions of the statute in this particular had hot been complied with. The English Courts are governed in their decisions by the common law applicable to Parliamentary elections. Wβ also are governed by the same law, unless it clearly appears thaVthe provisions of any statute are intended to supersede the common law iv any particular. There seems to us no more indication of any iutention in our statutes to supersede the common law than there is iv the English statutes on the same subject. The law in England is stated in Woodward v Sarsons (L.R. 10 C.P. at p. 743) as follows: —"The true statement is that an election Is to be declared void by the common law applicable to Parliamentary elections, if it was so conducted that the tribunal which is asked to avoid it U satisfied, as a matter of fact,' either that there was no real electing at all, or that the election was not really conducted uuder the subsistiuK election laws. As to the first, tbe tribunal should be so satisfied, i.e., that there was no real election by the constituency at all; if it were proved to its satisfaction that the constituency had not in fact had a fair and free opportunity of electing tbe candidate who the majority might prefer. This would certainly be so if a majority of the electors were proved to have been prevented from recording tlieir votes effectively, accordiug totheir own preference, by general corruption or general Intiraidalion, or by beiug prevented from voting by want of the machinery necessary for such voting, as by polling stations being demolished or not opened, or by other ot the means of voting according to law not being suppliedj&jgu...,..supPLte4 wifc k such error as to render the Voting by means of them void, or by fraudulent counting of votes or false declaration of numbers by a returning officer, or by other such acts or mlsuaps. And we think the same result should follow, if by reason of any such similar mishaps the tribunal, without being able to say that a majority had been prevented, should be satisfied that there was reasonable ground to believe that a majority of the electors may have been prevented from electing the candidate they nreferred. But if the tribunal should oiTly be satisfied that certain of such mishaps bad occurred, but should not be satisfied either that a majority had been, or that there was reasonable ground to believe, that a majority might have been prevented from electing the candidate they preferred, then we think that the existence ef -such mishaps would not entitle the tribunal to declare the election void by the common law of Parliament. The Court goes on to say that this is the result of comparing the judgments of judges in election petitions, and the earlier decisions in Parliament ou election cases. As to tbe second question, that is, that the electiou was not really conducted under the existing laws at all, the Court says:—" We think though there was an election the sense of there having been a selection by the will of the constituency, that the question must in like manner be whether the departure from tbe prescribed mode of elections is so great that the tribunal is satisfied, as a matter of fact, that th£ election Was notau election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under these laws ; io is necessary to be able to say that, either wilfully or erroneously, the election was not carried out uuder these laws, but under some other method." The Court gives us an instance that if under the existing laws a whole constituency were to vote, but not by ballot at all, the election would be a free exercise of their will, but it would not be an election by ballot, and therefore not an election under the existing law. The Court in that case having stated the rule, goes on to say—" The next question is %yhether we can say, upon the facts disclosed in the present case, that a majority of tbe electors have been, or that there is reasonable grouod to believe that a majority may have been, by misconduct or by error of tbe presiding officers, prevented from recording their votes with effect." We have dwelt at length on the case of Woodward v because the judgment was a considered judgment of tbe Court of Common Pleas, and is generally accepted as a correct exposition of tbe law. The principle of Wood ward v Sarsons had been previously acted upon when the poll had not been kept open for the time prescribed by the law in the Limerick case (Perry v Knapp, p. 336). The Committee there determined that the poll had been opened aud closed at hours other than ! those • prescribed by law, but that the result of the election was not affected by such proceedings. The sitting members were accordingly declared duly elected. The principle had also been acted upon in the Drognedacase (12 O'M. and H. 201) wheu the polling booths were not opened till' three-quarters of an hour after the proper time?. The judge, being ''satisfied that this had no effect on the result of the election, refused to declare the election invalid.: So also in the Worcester case (3 O'jtf. and H. ISS) decided subseSuently to Woodward and Sarsons, Mr uatice Lush says:-" The question which we have ultimately to decide is whether the poll was closed' before the proper time or hot, and if so, whether electors on the register were precluded, from exercising their franchise in such numbers 1 as to outweigh tbe majority of one.or both of the respondents." So in the same case Mr Justice Maniscy says that there are two quettioneraiaedV'One whether the poll was at any polling place or place , * dosed before 4 o'clock, and the other whether assuming it to have been so closed, the irregularity affected the result of the election." The cases which apparently ceiflict with this view are the Harwich case (1, P.R.D., 314), Gribbin v Kirker (7, Jr., Bep., C.L. 30), and a New South Wales ca*e *x parte Russell <2, N.S.W. Law Reports, Law 82). In the Harwich case the majority was aix, and the poll was dosed in consequence of a disturbance a few minutes only before the proper hour, and no proof was given that other voters were waiting to* vote, yet" the election was set aside by a Parliamentary Committee. It may well be, however, tbat'the fact of the poll being closed in consequence of a disturbance would be sufficient to justify the reasonable inference that a number of voters sufficient to change such a narrow majority might have been deterred from voting, though no of the fact was given. The case does not, therefore* seem necessarily to be inconsistent with the above principle. If, however, it is inconsistent, then as is •minted out in Rogers on Elections (Ed 15,

p. 68S), it can hardly be supported since the Warrington case a O'M., H. 42) Gribbin v Kirker was the case of a municipal election at Belfast. It was decided before Woodward v Sarsons. The facts are very meagrely stated, but it appears that the poll was kept open after tfie proper hour Co allow those who were then within the polling booth to rote. The Court of Common Pleas in Ireland set aside the election. The case does not mention what the majority of the elected member was, nor how many persons were wrongly allowed to vote. The Judge, Monahan, C.J., says that the cases do not go the length of deciding that the result of the poll must be shown to have been affected by keeping the poll open after 4 p.m. It is quite possible that although the result was nut shown to have been affected, yet there was reasonable ground for believing that it might have been affected. If that were so, the case is not inconsistent with the principle of Woodward v Sarsons. If it were not so, the careful and elaborate judgment of the Court in the latter case is of greater authority. In the case of exparte Russell, there was a majority of* fifteen, the poll was closed a quarter j of an hour before the time, and at least j six electors were prevented from voting. Upon these points the Court held the election void. If at least six persons are proved to have been prevented from voting, then where there Is a majority of only fifteen it is not unreasonable to suppose tha*; a few others not proved to have been prevented, might have been prevented, and that' then the result of the election might have been affected. The judgment, however, seems to proceed only j on the ground that there was a breach of a provision of the statute. If that really was the ground then the case is In conflict with the English cases. Adopting therefore, the language of Woodward v Sarsons, the question in the present case is whether we can say, upon the facts disclosed, that a majority of the electors have been, or j that there is reasonable ground to believe that a majority may have been prevented from recording their votes by reason of the ten out of the eleven polling booths having been closed at 6 p.m. instead of at 7 p.m., there i is no: duty imposed on the Returning 'Officer "to notify in any way when the poll closes. It is assumed that , the voters will,themselves know the legal hour. Had 'there been such a duty and had an erroneous intimation of the hour of closing been officially made, we might i have had to consider the case of voters who might have been unable to vote before six, and who might have been deterred by the erroneous official I intimation from voting at all. Such cases might have caused considerable difficulty. A 9 the case stands the error could only have affected those persona who after six I,o'clock either preseuted themselves at a polling place for the purpose of voting, or who, iutending to do so, were informed that the polling places had closed. Had,the majority in favor of the successful candidate baen small, it may well be that without any evidence on the part of the petitioner, the possibility of such cases having occurred, would have induced such an amount of reasonable doubt as to their possible effect on the result of the election as would have made it necessary for the respondent to give evidence. Iβ that case, if he failed iv showing facts negativing the reasonable possibility of the result having been alfected, the Court might have felt compelled to Hold the election void. But the majority in the present case is IQ7. Sitting as judges of facts, and applying, in the words of one of the Luglish Judges, one's common sense to the circumstances of the case, it does not appear to us, on the petitioner's case, to be reasonably possible that that number, or anythiug remotely approaching that number of voters could have been prevented from recording their votes by the irregularity complained of. The Amending Act of 1837 did not limit, but extended the hours of polling, and that only in certain districts. On the only election previous to this which had taken place under the Amending Act, only two places in the Peninsula other than Lyttelton came within the extended hours, and in both these the poll had on that occasion been erroneously closed ab 6 p.m. At the present election a paper extensively circulated in the district mentioned six "as the hour which the poll closed. There is, therefore, every reason to think that six o'clock would be generally considered as the closing hour. We think it, therefore, extremely improbable that any appreciable numberof voters could hare come to the conclusion that they could vote from six tovseveu, and were prevented from doing so by the closing of the polling places. If such had been the case we are satisfied that 'abundant evidence of the fact could have been easily obtainable. The petitioner did produce one case, that of three' brothers, who stated, we believe truly, that they were informed that the hour was seven, and were prevented from recording their votes by the improper closing of the poll. But If a number, equal to 10 per cent, of the actual voters at the ten polling iplaces in question, or anything like such a number, believed they were entitled to vote after six o'clock, intended so to vote, and were <pre.vented by finding, or being .informed that the polling places were closed, the fact must have been a matter of public notoriety, Assuming them to be equally divided, there must have been a considerable number at each polling place, or I assuming, as -would be more likely, ! they were unequally distributed, there must have been a considerable number at some one or other polling place. .The; must in many cases have been seen by others, and by each other, and have talked of the matter. Even if they had at the time assumed that they, and not the .Returning Officer, had been in error as to the proper time of closing, yet the I initiation of the present proceedings has given public notice of the irregularity, and must have informed them that there was at least ground for saying that they had been improperly prevented from voting. \lt is obviously absurd to suppose that a large number of voters have learned that they were, or at least have good grounds for believing that they were, disfranchiJed by tbe wrongful act, of the Returning Officer, without their taking advantage of this opportunity of having an injury redressed. We know no reason why people who have suffered by ail error - should not come forward to say so, and no reason why the petitioner'a advisers should uot hare availed themselves of the information. We know enough of the spirit evoked by a closely contested election, and by an election petition, to justify us iv saying that the difficulty in inducing, witnesses .to come forward is not one which is usually complained of. The circumstance that at this election a very much larger proportion of voters resident in Lyttelton recorded their votes than was the case at country polling places, can easily be accounted for. The fact that the legal hours were observed at the polling place at what was the stronghold of the successful candidate, while it is an addifcionalreason (to lead us to weigh very carefully all the circumstances of the case, cannot of course affect the result when the Court has arrived at the conclusion that ft full compliance with the law at the poll* I ing booths where the petitioner was the favorite/ could not have -affected the ! election. We, therefore, come to the conclusion that the case made by the petition not only fails to show that there l was ; any reasonable ground for believing that the return of Mr Joyce could have , been affected by the irregularity which admittedly occurred, but satisfies as'that \ there is no reason to believe that had such irregularity not occurred the majority in his fatforwoni&havebeensubstantiallyreduced IWe therefore determine that Mr Joyce was properly returned and shall so certify. \ The petitioner must pay Mr Joyce's costs. The decision was received'with applause from the body of the Court. Mr Justice Williams said, after the constable called for order—We ask you not tor give way to those bursts of feelings in this Court. This is a Court of justice, and expressions of approbation or disapprobation cannot for one moment be tolerI In reply to a question by Sir Robert ; Stout, His Honor said the costs would be taxed by the Registrar. The Court then rose.