UNDER WHICH COURT.

Dominion, Volume 2, Issue 443, 27 February 1909, Page 14

UNDER WHICH COURT.

LICENSING POLL INQUIRIES AND MAGISTRATES. . NEED FOR A CHANGE 'AT>VOCATED. *. FURTHER CRITICISM. (By H. H. OsTuai.) 11. The attitudo of the Hntt Court in applying the jriuciplos of election law to the irregularities which' were proved was no less extraordinary, viewed cither in relation to the principles of law laid down by tho English and Now Zealand Courts or with tho principles adopted by Dr:*M'Arthur in upsetting tho- Nowtown poll six years ago. In ihe Newtown caso tho No-License party had woa by four votes. In tho Hutt case they "wanted but three votes to win. In the preliminary judgment dolivercd at the Hutt, Dr. M'Arthur stated that the case which" the Bench _ considered tho most important as authoritatively expounding the principles of election law was tho Islington case. .It was vupon tho principle of that caso which Dr. M'Arthur liad relied in voiding the Newtown poll. Now tho whole gist of that caso is contained in the following passage, which was duly quoted with approval by Dr. M'Arthur in his Nowtown judgment: "Wo agree that, there being an infraction of tho law the burden of pioving that this infraction did not ' affect the result of the election rested | in this case on the respondents. Wo , think that in such a caso as the pro-, sent tho petitioner is not called upon to prove affirmatively .that tho result of'; tho election was,affected hy L tho proved 'transgressions of tho law, but the respondents must satisfy the Court that it •would not and could not be affected by The principle is that whore tho petitioners prove a clear irregularity thoy are not bound to go further and prove that that irregularity affected tho result, but tho burden is at once shifted to tho respondents to prove that tho result obuld not' have been affected by the irregularity. That principle has been laid down again and-again in England'by v eminent Judges, it has been oxpounded by Mr. Justice Williams in New Zealand in the Akaroa case, it was strongly contended for by Mr. Skerrett ,in tho Mastorton and Ohinemuxi cases,, and, as I have said, it was acted on by Dr. M'Arthur in the Newtown caso. ■ ' '

l. ; ; ;/; which/was dolivefed by .Dr.VM'Arthur -"him-'. :o.;;y ,; ■.: , B^,^.sti^s^.was'" : laidTta^n^;tho,■'g?>eat.■. ; iln7 "/;:-/ /'portahco of lßlirigton'.;case ; Valid '/a .lonfe, ;'/ : passagewas/cited'from'it.'-Strange to say,' ■■ v:',- Dr. M'Arthur'omitted ,tb cite! the passage. I. //w/^Jhaye/qiipted/abbve-—a/passaged which/,lie had. irelied oix so-confidently in/the Newtown case. i'w/s'Upoii'iMr.": Atkinson;; of: the X case: drawing, his attention 'to. .this omission, : V---his ■AVorship' -explained'thdt- that... passago ■';":' /.must. I&ve.'been on'-anpther,;pago, v and thus ..., : :.V'.;:it. h'ad.fescaped him./ -In v th'e:final judgment, ,/also dehyeredbyDr. M'Arthur,' a long'quo- ...'.'■ Hationiwas again .made'from the Islington , ■■-.'?■;' ; ; Jcasoi ; ;and.thoipassage referre'd'to /was care-. : •• !: v.fuL^:,cited>;at' : lengthi- r^Bnt;:: although, cited/ \^ >V;/;/:/the Bench, /vrho se/decision-/was;to. the .effect './;..VYthat/:bh\.tta^^^ J-f.-ji ot-proving*irregularities,,-but also of; //-.'/^rovingi/to i;V{ the result.- /-Take];for example/' one;;;.'.'//irreguHrity.that'wasproved./,:lt /was. proved; ;•'.;; rfchat :; :in; three.-■ booths/tho/tieiuriuhg ! officer .';; ; /sfatfed't^ ./., der/to' maintain .the secrecy, of itlie'ballot,' aa< ///'XActv;/that /in/two 'of ; these,,booths: theide--: i.;./,, .//5/.;:yisei a' roughbut./suffirient: screen by means %' of a blackboard and a'map; but that,in .one. ■:■'■ '/";: booth -there was absolutely / nothing pro.that'in .consequence the, vo.teni .;■"■■;,, had .to'' vote/in : the furthest ...corner .' of ;,Sj //'/ mpde'rate : : sized-irbbm,'; f $h'aTl74'j jbtes%TVsßre'; ;;:..//;/!recorded at that/, bpq'th ». ; 'that jonF|eyeral.i'o"o?' ..-■■•;,'' casibnsMherbi-Twre/four, or-invej:voters^-.iii; ://:/ ///the;-room';ai'_/the'.Same/time 'jV.anoV./tha-i 1 , :'"a' ;r- S';' without/trying 'to; db/so;'/actually> i/O'saw ://;;/://;as ;/■//;/the'/absolute■ secreoy ; -or-the ballot i :'■&_ 'the ■-'.-i , •: scrutineer'..j saw,,-, 12,'. or,; : ,l3'.;papers, "everyone /;,;/;' - :>'! voters yote&,One'sas'b'nly.to'read "the Ehg--;' ■';■;'>.Jllsh and:;lrish'casM^pmaUy.s-the^Drog^edi ;'..; realise the gravity w.hich^is^ttached /:;'/. by tho Courts; to/any/real-/infringement/of- ')';;•/ thei:secrecy /of'tho,ballot;'-;;■ Stirely,;in -"such /:/'/:// circumstances- and ; considering ; the i; narr6w ;%..: .margin; -the' principle "Islington; case; %!\ ,; wasapplicable,; ana the respondents' should i ;-X ■ 'hare beeri 7 called ; on to ■ show ..that. this '■ grave' .'/- /.irregularity^'could not. have, affected ■the >> re-/ But,what did^iie : ;':S.ithb Islington cxise at/length, .leaving out,the ;/:■;;'"passage.,l} haveV'referredtpjv'and.'. then',isol- :-,;, ;:;:,ehihly-'pronounced '> the followihg' decision; on ! :;.' ; -; : ;this -irregularity':. :■_ -that':tHere. .;.;:;j'TvasVan herejbut'.thatlt.did not :;..,;,-; affect 'the, secrecy of .the- ballot or : . the. result ;:t.-; ; c6f 1 rtli&i i pbll.Viln<our.;opinion^":howeyeri' at; ;■: proper;; ; compartments. Vvrvshbuld^teiset^aside^for.TOters.V:; : " '-. ')ff-'.' :-r- !l■I '-■■ Take irregularity; '.'.lt, was...prored .;•;' V;. ox admitted,;ithat'j''m/7"outTpf : '-:ls;'booths in! ,-;;, ; .-;; the: district;,-Jail of, in:easy reach j ; : J. .i.by ; ti'ain, or,: toad. 'of the '. principal booth, : the :.: ;;.; deputies: did not: deliver jthcir'^ballot'papers ';: ; : ■-. ■'.■; to;the. Returning; Officer, Vuntil'the.day Rafter «;.;,;f the- poU;;.. that the,last,.,bat<;h of "papers did %' v?n6t-:'reach ..the, ;Rcfgrning: .Officer's hands '-X '•;.=;. tintil_;'l.cb'clock, the c neit' arternobn;;;thatvin ".,\i;pne, instance -the 'ballot .-'papers' remained; all : i 7 ■■'■ ;,Bightvin.':. ah .empty". Courthouse,'--and, in sev:..:,eral.:instances ,were,taken..to; private-.houses. rN,;.Other,instances of ;slackhe'ssj f of'lack of ; pro- ; .4 .per.-care,; of.;lack. of:dispatch,, were;,proved. ','■] ;;VNow ./the ,Act:provides... that;'each;.deputy ; -f'ip shall' himself''-immediately : : after 1 ; the,', poll; .: -..count; his papers; and,;deliver. them; himself ■;.; with. i;- ; ; ; ing;/Officer,; and,it: provides, heavy.'penalties. /:.; ;. /if .he. delivers _th«n toahy one/else; ; ;;i:/.;;.cohnectipn •/;. //;the/chief irregularity/relied ohun-tho.Jjlew-; ■:;':',' •■tbjra'icase,; '-and ,;•.'.the .'one >to/ which,■'; Dr. ;../,.;;M'Arthur ; seemed;;to;Vattacli/ : /the-/; greatest ;/////weight/^vhen/ho/voided/tbat;;ppll, ; /was that rbf 'the-booths /the' paperß /had ;/;;/been /left":;at; the booth■ all night and-had ;/;,-;, ;not. beendelivered .to /the Returning Officer ,',';. : until .eleven. o'clock the next morning.' .In ./.;,-.the.Newtown. ;inquify ; :thore, was ,no .sugges- ;:..,'■ tiph /whatever : that those: papers'/had' been^ /.;.tampered .with, ; but the ,fact that' thoy wore :;,:/ /so/left; r in/pn6/:booth:':and : :that\ the!r?-might -,/;; have; been'- tampered with 'drew 'forth-'heaYT ;,;:.; .stricturesirbm ~Dr. ■: M^Arthur... Ha' ig- fe/://.ported'; In; /the 'ftHm. Zealand 'Times,' I .'-■■ of- . /;;/• 1903,' to -have -said- that -the ;;,;:laxity,/of./the" officials at;/that:booth "was -■A... ..-,• 'fnwst. /unpardonable.:; There/ was 'nothing" to «.;;.;;-; prevent :;thp/ papers. ;/from; being tampered ■i: ,-'-.■ /with.;' \\ : In:;the;;"JSvening;'Post," ■ of-.'• the ';; •:■ day/prpvipus, vhe/ is /reported /to- have 'passed ./,;;:/even /stronger';remarks on.;'this..irregularity. • ■'~ ;/.;In -the ;Hutt; casei.' the/same '/learned Magis--: ;;;'.'.; trate; has/exactly /the/, same /class : of irreg'u.deal,/with,r/but/on.;a«wholesale :/ : scale. ...Where are his caustio remarks; about /.// .the : , laxity' of:, the/officials?. ■'•■ The;'possibility ."///..that:.in ; any/'of seven''booths".the "papers" ■"-'■■r\ might/have/bcen ; ;..tampered with 'does not '."•'•■ even occur, to, him. Ho says:—"We are/of ;.:-' ..bpinion-that.-although/tlrese-are irregulari- ■„•.,:,-; tiesi : yet the Act was substantially complied :-,';' .with,: and .that they; did,, not- affect the/result. •';•"■.-' of the.poll,.aud'hence*- answer." :' ; ; 'it had been.pointed but to.the; Bench that /".'/."the words of the: Act;.had,, been /expressly ;/,; altered, in-consequence; of/the-Newtown case ;/ ■/ and/his Worship's -own criticism of .'the. offi-\'-u ; cial/who failed to deliver his papers -until ■';/';'- the:iiext mbrnuig, and, that /no words icpuld ■:.';/.'be;/more imperative than ;.thb Sofa's .f.'witb ;;:/;/;'all/possible;:dispatch,"/yet;in/lspite of;the '■'•■'-'■' ■ altera Hon/in the law /brought,, about/ by his ...decision ih r -the. Newtown" Worship ;■;-','.;:;"Rpparcntly;thmks. it.is/a'substaatial. compli- ;//; ~a;ico with; the lawj for /half: the ,ih :.".,;. : /ah'ejection to be left, in empty Courthbuk's .•' / J ;,:;and -private, houses all-night,, toi.be'delivered :';;.. :;;'/,,tO;U!:knowh: drivers"of /conveyances/the 'next ;/; ./ir.qrTiiug,: and to reach / the. Returning:, Qffithorn.not until the 1 iieit / ~/;.r!'t!!i]!oan;.:'.:'riiese .two undoubted irreg'ulari- , "r/.l^'s-iis secrecy 'and' ";/'. ; :- St. to:th'e : cu'stodyj'pf/the,ballot.baDjsis—wire

; clearly proved by tho . petitioners.... They had'also reduced the'number by which they ■ .were..-'short.',of..winning .',t6_,two, ; or at the : most'?three. Other grave irregularities.;had also : been proved. Where the margin is '. small, comparatively slight /irregularities ; may.affect the (Jesuit. .This '.obvious principle wasV.recogriiscd;;;and: given' effect to by ■ Dr. M'Arthur;:in the Nowtown '■• case, 'with tho, result 1 - that; No-License was lost.: In his 'judgment in that case he used the follow- ■ uig words:—"Looking at the law of elections and-tbewparticular circumstances of this election, more particularly the closeness of the result, in niy opinion it is open to reasonable, doubt whether these, irregularities may "not have ■ affected.-.tho result." These two -irregularities .alone may well have, ac-.countetlVior!'-two-votes, and it lay upon/the 'respondents in "those "circumstances to show , .that/they did' riot. ■'But the Magistrates, in ;'spite of: the fact/ that they : knew,''i<pnly"'••'twOy;6r '; three, votes >ere required., to._alter,'tho result...at. the close .of/ the petitioners'' case brushed' Aheso . two irregularities aside, in one;-instance by stat-. ing—despite;', the; evidence • offered—that .'the 'secrecy:, of the, ballot had not beon ..infringed, and in -tho .other instance /by in the teeth of the Actthat ;. the. law 'had been substantially comfplied with;, '/■;;'; V : '-,/;/ ..■■'•■ OFTHE EVIDENCE.,: - i. / Their.;. Worships ,;dicL. not/ take their own' 'notes';, of evidence,' but of their own motion it. is submitted, without authority,. em■plbyed an; 'expert-typist, saddling'-the. petitioners with that extra cost.. Notwithstanding this,; the Court showed an astonishing ignorance of the evidence. To take: one instance: The petitioners proved that'tho-son of.a publican-drove.a .motor-car about at the Upper Huttj ; on-polling day, taking .voters to the poll, on-which was fastened a large ?lacardj known as/-the. "Liberty .Placard." his 1 was .a-distinct contravention.of Section 35'0f.-the/Licensing, Act. ; The. publican's son was/'cilled/to; explain' his.eonauct, andi he. swore.!positively that', the. placard had. been' put on:,to the; car without his. knowledge; j.thafc hodrove the car, all-day without noticing it;..that,his..car never broke down all day, so that he-did not have to go round to the back of it,. and did not do so; and that ino one called his attention to it; until 5 o'clock in .the,evening,'when he '.at. once removed it; he/did/not : say. who. it was -.who drew- his attention to' the placard,'; but,-ho; admitted that. lie'/knew; it ■;'wa3.'" ; illegal to have it/ on his.car,/ahd';stated; that as soon as he knew it;was there:he took it,off, He fixed the tmiQ r xlefeiitely;:.at;s o'clock.; A-_.consta.ble. was thon'balted'to prove thai the bar of the Upper Hutt Hotel was closed during the afternoon of VHe was asked in crossoxamiriatioii if he had seen the placard on tho said he had. seen it between one.;: and'/ two -o'clock in, the,, afternoon;, had 'dfawn.tho. attentionof the/publican's son'to it, as;he thought it was hot legal; that-at that timo.the car, waß ;brokeh down, and the publican's son-was repairing it; that tho publican's .son laughed .it off and. treated it as : a* attempt to remove it, 1 "; Afterwards.'' the;' constable / fixed ■■" the time as v . 3 .o'clock,: but : no/ later. Here;;: was :-an ;_.obyious double, contradict ti6h; : Several witnesses had sworn, that .ih'by. saw;the:placard on the car at 5 o'clock. The .sworethat; he/spoke' to the driver about it not; later than 3 o'clock, and the driver's reply, made. it plain that he/knew. ;it-. was"; oh "the/car. then: The "driver swore thai he did not take it: off until 5 o'clock. In-giving, judgment, an attempt was made to reconcile 'the. contradiction,; .but /the result •was'; not supported.: by. the evidence. - "The car,".; Court, ''was driven by the son of'.'the;' licensee of the. Provincial Hotel, .Upper:;Hutt,' *ktf 'asserted that he did Cot know, of the-placard, until -informed: by the constable, when he removed it." The publi-.can'sVson'-did./hpt'-.state' that he:was ihformed'of it by.the constable; and the finding on- this spbintxis; wholly/unjustified by the evidence^, The,Qourt dkl,hold that' an' irregularity/had. been' hut. that did not matter,.as it was further held.that there was .'no evidence to. show that it. in any way affeoted.^he-result-.ofitha.poll." If the Magistrates had followed ;the principle of tlie Islington case, which they had just previously quoted;" they' would- have required evidence, not, from, the petitioners to show that the result, was affected,but .from the respondents, to' shbw/that.it.was-.not'affectecl. -.Instances of, simUar. misapprehensions of -the evidence could be, ; multiphedj'.but. space'jforbids.; i

. ; :■ TJNCONTEADICTED EVIDENCE ■ : i )!- : ; ;Q: : r ' /;:: : ' V:'; . y ..: Considering .tho .fact that a witness .has, at performed;-- -in •theory, for,: tie public good, it would seem .fitting that the Bench should treat the testi-mony-.pfJreput'able . citizens at least with re- ; spect. /: In-several-lhstancos the Court took .upon-itself'to discredit,-, or ignore, a witness, .without putting the necessity on'the respondents of calling any*evidence in rebuttal. .The case;of :tho .Taita;booth/: where a scrutineer said that Ke;had.seen, how twclvo or thirteen electors.; voted, i,was,., an'- examplo; of this. was the case of a scrutineer who'swore positively that atthe .count .after, -the-, poll he had«seen: : a .paper with '■!the i two .Jdp.yines iscratcfied'out,.'and a line, through tho, "I" and: the first- letter of:''vote" of the-; third -'lino.- : ! The 'paper,; was; not again seea;; at or recount. . There was also evidence that-a* paper was lost during the :«)unti-;.;Biit though the. witness gave clear and uncontradicted ■eyidehoo concerning .it, the; Court. dismissed' his' testimony with th© following,remark:—"The Court is unable to;.accept:unkupported evidence, concerning '.papor.'' ; r-The ;!to .the. Rev. Mr.'Wil-: f sh&tb'erivmsta'nco 'of-this: .treat.'ment,,^f^tnesses?::;Th'e. y Court. said, concernallegation that the Rei%Hiig''.Oific'sr. hadJop'ene&.the door during tho;!couiit;'iand;' allowed- : scatter l,som|S;BSar^'s\^bMlpt™pers'over, the floor, ■ .o^;Bf^.-bayc^faoteT3sea'.Ss : a'gross exaggeration;' t ?No! 'such- allegation 1 had;- v as.'a matter ;pf:faci;^been^ in the' evidence'S^The'Jonly. ; differehce' between the.twd mtaesSes'.'cpiicerhcd, 'who 'agreed, as tothe other facts/, was as to the number of papers blown about...".;; , .... • MISTAKES OF RETURNING OFFICER ■ ,;';«;;■ ; ' fCONDONED: ?V,.' :.; v ;'/ .';;THe;-Court. absolved'the. Returning Officer, but; itt^spife.pfjits"decision' that the count .conducted;.- by ; "h'im\-, "was "not. .characterised by gross, 'irrdgulantyj" the'facts remain, and cbnstitut'a': ? a : rebbrd : very dirficiilt to. explain. One'_of;the charges proved, and indeed partly admitted, -was: that no actually absented himselfUfor ■. i ,considerable:time from the hall during .the-progress-of.: the;, count, and loft the papers 'j spread, put:among- seven assistants, j.'He' 'himself-Jadmitted that he was absent.on.end. for three-quarters of.an hour, : nrid'for 'two; separate short ■ periods. .The Court: apparently-thought there was nothing' wrong.m.-thati-although'the Act certainlycontemplates'that',the Returning Officer shall •bp.present' all, the: time it .proceeds.:. It.was contended that"-'-the count was not proceeding when he .left',;.because,, as a., matter :of fact.all'thotimo heiwas.away the seven assistants 'were engaged;;in'rummaging through the ballot papers to 'find the paper which was 'lost.-;- -Tho, Court.-accepted this .'subtle contention,;'and solemnly held that this,search: was- no_ part of'the count, and therefore the Returning Officer was not absent during tho' progress of ; the count.- In no:less than 28 papers were blunders made in the count' evory one .of them being in favour of the Liquor party;'':■■;';.'.' .- ;_..;: (To;;be':eontinued,) _..•■: .";.".