ELECTORAL COURT

Press, Volume LXXXIII, Issue 25178, 8 May 1947, Page 8

ELECTORAL COURT

RAGLAN SEAT INQUIRY

Case Argued For Respondent

SUBMISSIONS ON VALID VOTING (P.A.) HAMILTON, May 7. If necessary the Electoral Court

would sit to-morrow night to ensure the completion of counsels addresses on Friday, said the Chief Justice (Sir Humphrey O’Leary) before the Court rose this afternoon. The whole of to-day was occupied by Mr T. P. Cleary’s closing submissions on behalf of the respondent, A. C. Baxter. His address, which has now occupied seven and three-quarter hours, will end early to-morrow, when he will be followed by Mr W. J. Sim, K.C. for the petitioner. Halliburton Johnstone. Contrary to the belief widely held, not even Judges on the Bench will know lor which candidate any elector voted, even though his or her vote be disallowed and dedu ted from the count of valid votes This was emphasised when Mr T. P. Cleary, continuing his address, said it w as agreed by counsel that in eight cases where an elector had been challenged by both sides the vote should auto matically be disallowed. The Chief Justice (Sir Humphrey O’Leary): That means such votes will be examined and deducted from the candidate for whom they were cast. Mr Cleary: Yes. your Honour, and neither my friend. Mr Sim, nor myself will ever know which of us was risht Archibald Blair: Nor will we although many oeople do not seem to realise it The Chief Justice: Such belief is. of course, quite erroneous Mr Cleary: Counsel know that your Honours will be in equal ignorance with counsel in the matter These references were to the fact that when the disallowed votes are examined they are handled in such a manner that the secrecy of the individual elector’s vote is preserved, although the necessary deductions are made from each candidate’s count. Fann Owner's Vote Two of the respondent’s abjections reviewed at some length by Mr Cleary were those to the votes of Frank Alison Fox and his wife, Lilian Mayfield Fox. Mr Cleary said the evidence showed that Fox had been in business in Auckland for 17 years, and had rented a flat there for the last five years. Six years ago he bought a farm at Glen Murray in Raglan which he visited at week-ends and where he spent his holidays. In January. 1946 Fox and his wife enrolled for Raglan Fox in evidence said he intended to come to live at the farm when he found a suitable business partner in Auckland. He found that man only in February this 'ear and was not yet living at the farm. Mr Cleary said that Fo* was simply a businessman who, like many other businessmen, bought a farm but that did not alter the facts of his residence in Auckland. To claim the farm as his home was a reversal of the norma] procedure of a businessman going to a farm at the week-ends An important feature of Fox’s case was that without any change in circumstances since he bought the farm six years ago he and his wife decided in January. 1946. to make the farm at Glen Murray his electoral residence. When Mr Cleary made reference to last .year’s by-election in Raglan. Mr Justice Blair said: “You don’t suggest the by-election altered the voter’s circumstances?” Mr Cleary: It apparently helped to crystallise somewhat prematurely his intention to take up residence, in Glen Murray—an intention which has not been carried out to this day Mr Cleary, continuing his review of the respondent’s 15 challenges on the ground of the true place of residence being outside Raglan, said that in addition to the four cases claimed as proved and two claimed as proved on another ground, four were admitted to have failed, three were abandoned during the hearing, and two were arguable. This completed Mr Cleary’s “sorting out” of the votes challenge* on residential grounds by both sides, and he then proceeded to review the evidence in those cases numbering 24 in all,-which he had described as arguable. Of these 14 were from the petitioner’s list and 10 from the respondent’s. Of the 24, Mr Cleary said that 12 (nine from petitioner’s list and three from the respondent’s) wet' cases of electors having a temporary home outside the electorate, which was claimed to give them a qualification for an electorate other than Raglan. Mr Cleary sai'd that these 12 cases had a common characteristic, that the residence the electors took up outside Raglan was temporary. Mr Cleary elaborated his submissions made in the opening that the electors in these cases, while entitled to enrol in the electorate of their temporary residence, could not be compelled to register in the electorate of temporary residence, thus forfeiting their qualification in Raglan against their wishes. Mr Cleary said all the 12, whether on the petitioner’s list or the respondent’s, were entitled to retain their Raglan qualification. This was his primary submission, but if the Court did not uphold it and allowed the petitioner’s nine objections, then the respondent’s three must also succeed. Residential Claims Mr Cleary said that in another five of the 24 cases he deemed arguable the predominant feature was the quality of residence. Each of these five electors (two from the petitioner’s list and three from the respondent’s) had one residence in Raglan and one residence elsewhere, both of which were used concurrently, the elector dividing his time between the two. according to his circumstances. In all these cases, it was claimed, the voter retained sufficient connexion with his Raglan place of abode to retain his Raglan electoral qualification. Alternatively. if the petitioners two objec tions succeeded, so must the respondent’s three. In another group were three elderly people who formerly had their roots in Raglan, but who now spent a good deal of their time visit-

ing their various, children. Mr Cleary said that these electors, of whom one was challenged by the petitioner and two by the respondent, ought to be allowed to have their votes counted as valid, but in any event the three must stand or fall together. Mr Cleary said the remaining four of his 24 arguable cases fell into no clearly defined group, each one having special factors governing it. Mr Cleary, resuming after lunch, submitted argument as to the application of the Seddon-O’Brien decision (reached in an Electoral Court decision on a Westland seat poll), to six votes, the fate of which he said will turn upon the view the Cour* takes of that decision.

During the review of the next group ot objections. Mr Cleary admitted that proof had been furnished in eight of the petitioner’s 19 objections to electors as being predominantly Maori Another name was common to both lists, and the tenth was withdrawn by the petitioner when it was found the elector had not voted in Raglar

Mr Cleary submitted that the other nine objections were not proved, and only one of the nine admitted of any doubt. Of seven electors challenged by the respondent on the grounds of lineage. Mr Cleary claimed five cases as proved, a sixth as having been abandoned, and a seventh as being common to both lists. Each side had challenged one elector as being an infant.

Mr Cleary claimed that the petitioners objection had failed, as the person became 21 between the closing of the rolls and election day. while the respondent’s objection was abandoned on the voter being found to qualify as an oversea servicemen. Votes by Aliens It was agreed that each side had proved one objection on the ground of an elector being an alien. Mr Sim interposed at this stage that the Crown Law Office was interested in the unusual case of one Devcich. and he understood that the Crown Solicitor in Hamilton might make rep resentations to the Court in the matter.

Turning U» the review oi challenges by both sides against absentee votes, Mr Cleary said that all 11 of the petitioner’s cases based on handwriting must fail. (The abandonment of eight out of 41 has already been announced by the petitioner’s counsel.) Respondent had no corresponding objections. Mr Cleary also claimed that a!' of the respondent’s six objections to absentee voters who failed to enter the name of the electorate on their declaration form had succeeded. The petitioner had no similar class of objections. Mr Cleary argued that if the observance of regulations were not strictly mandatory in these six cases it was difficult to see how any of the peti--1 tioner’s objections to postal or absentee votes could succeed. The reason was that only in this instance did the regulations say specifically that non-compliance on the part of the voter would lead to the vote being disallowed, whereas the petitioner’s objections were based on less serious defects. Mr Cleary conceded that the petitioner had established all three of his cases against absentee voters who failed to sign their declarations, and claimed as proved two cases brought by the respondent under the same heading. Mr Cleary said the electoral law also required the disallowance of 10 absentee votes challenged by the petitioner and eight challenged by the respondent because the declarations were not witnessed by the Deputy Returning Officer Two names were common to both lists in this group. Mr Cleary admitted that one of the respondent’s cahes was doubtful in that the returning officer had initialled the declaration although not signing it. Mr Cleary, dealing with five objections by each side to absentee votes in which the clause of declaration had been struck out said there was no authority obliging the Court to uphold these objections; The list of invalidating defects in respect of absentee and postal voters should not be extended, as it would be extended if these objections were upheld. The respondent invited the Court not to disfranchise these nine voters (one name being common to both lists) but if the objections of one side were admitted those of the other side must similarly be upheld. Mr Cleary also invited the Court to hold valid two absentee votes which were unaccompanied by_a declaration

on the prescribed from. Each side had challenged one of- these votes. Mr Cleary said that the presumption should be in favour of preserving the voter’s franchise wherever reasonably possible unless the Court were prevented from so doing by mandatory regulation or by previous authority. Mr Cleary, opening his survey of the final class of challenged votes—postal votes—submitted that all 15 cases in the petitioner’s list based on handwriting must fail (nine were abandoned by the petitioner during the hearing). Mr Cleary said that in only one of these cases was there an element of doubt on account of some confusion which arose as to the identity of the voter In the class of postal votes challenged because the declarations were unsigned by the voter the petitioner had two names and the respondent seven Mr Cleary said that neither of the petitioner’s cases should succeed, both being declarations of infirm persons. One of the names was common to both lists, and in addition to it there were three others on the respondent’s list which should be counted as valid for the same reason as applied in the petitioner’s cases. Mr Cleary claimed that the respondent’s other three objections had been proved.