FRANKLIN NORTH ELECTION.

New Zealand Herald, Volume XIX, Issue 6341, 15 March 1882, Page 6

FRANKLIN NORTH ELECTION.

PETITION' UN'DEK THE ELECTION" PETITION'S ACT, 1830. [Before His Honor Mr. Chief Jus ic* Prender;ast aad His Honor Mr. Jasueo Gillies.] A COURT under the Election Petitions Act sat at Papakur.l. yestenlsiy, to hear arguments and evidence in regard to the petition of William Frank Bucklaud against Benjamin Harris being declared the member elected for the representation of the electoral district of Franklin North, and claiming that the petitioner had a right to be returned at the s:»id election, which took pUce on the 9th of December. Messrs. Cotter and A. E. Whitsker, instructed by Mesars. Jackson and Russell, appeared for the petitioner ; and Mr. H. H. Lusk, instructed byMr. Burton as solicitor, appeared for the respondent. Mr. Shj.naghan, the Returning Officer, was not represented by counsel, and appeared for himself.

Mr. Cetter, before opening the petitioner's case, asked that clauses 5 and 6 of the petition be struck out. These were that five persons under the age of 21 hid voted, and that two or more persons who appeared on the roll a 9 qualified by residence, but who were not so qualified, had voted. Those questions had been raised in cases trie 1 in the South, and it was decided that they could not go behind the roll.

The Chief Justice : Substantially, you mean, Mr. Cotter, that you will offer no evidence on these points.

Mr. Cotter: That is so. your Honor; that is what I mean.

Mr. Cotter then asked, before opening his cise, that witnesses might be ordered out of Court and the bearing of :he Court.

His Honor the Chief Justice asked Mr. Lusk whether there was any objection to this. Mr. Lusk replied that he could offer r.o objection, except the state of the weather.

Mr. Shanaghan said he ould give the kev of the library ajjoinius, aud witnesses cuukfreniaiu there.

The Chief Justica then gave the order for witnesses to leave the Court.

Mr. Cotter then opened the petitioner's case. The petition was presented by \V. F. Buckland, one of tbe candidates at the general election for tho representation n( Franklin North, the polling for which took place on the 9th of December. There were four candidates, and after the polling the numbers were counted, and tbe Returning Officer declared the respondent Benjamin Harris elected by a majority of 2 votes. The petitioner now petitioned on the following grounds :—l. That at Mangere the Returnins Officer on counting the votes declared a certain vote to be informal, and refused to count the same although the petitioner believed it to be a i<ood vote. The ground of objection in this instance was that a name had been written across the face of the voting paper. What that name was he did not know, but when the pappr was produced argument en that point could take place. Their contention was that ad<iiti«nal matter on the face of the voting piper did not invalidate it. It would be noticed by the Court that English authorities on this did not apply. The English Act stipulated that if a naaie was written on the face of the ballot-paper it would he bad, but there was no such provision in the Act. Is waa intended to have gone into that, but through the non-arrival of the steamer Riugaroorua the clerk of writ 3 had not arrived.

Mr. Justice Gillies said that the steamer was to arrive at noon, and the clerk of writs could tike a cab and come out.

The Chief Justice said if Mnjor Campbell arriTed by 1 o'clock, he had better come on at once.

Mr. Whitaker wrote a telegram to Messrs. Jackson and Kuisell instructing them to send Major Campbell out immediately on his arrival. The Chief Justice said it was quite competent for Mr. Lusk to admit that tho name was placed 011 the front of the paper. Th.it was a fact which might be admitted.

Mr. Lusk said the fact was imperfect. They did not know what the name was.

Mr. Cotter said the next grievance was that at Howick the Deputy-[Returning Oriicar, upon beir.g requested to do so, refused to give to one Mr. Dovall, a voter, whose name appeared on the electoral roll, a voting paper without attaching to it a condition which he was not

iunhorised by law to do. That, he believed, •vouhl be admitted, for the Deputy-Keturning Officer fancied he was conducting the election under the old Act. Only three questions were permitted under the existing Act, and the Deputy-Koturuing Officer, instead of confining hini3elf to these, asked the voter if he had resided (or six mouthy in the district, and on his answering in the negative, said that he could not give him a votiag paper, or if he did he would put it .-isi'le and not count it, and no voting paper was given.

The Chief Justio; : What is the effect of that ?

Mr. Cotter said it would he competent for him to put the question to the witness, "You went there with the intention of voting, and for whom V" According to the telegraphed reports of the cased heard dowu South this had been allowed.

Mr. Lusk : I cm supply the full report of the case referred to (the \Vang*nui case).

Mr. Cotter then proceeded : The third paragraph in the petition, was, that Robert Hattaway and other voters had intimidated William Dovall. Hattaway objected to his vote being received by the Returning Officer, and upon this the Ueturning Officer put tlie improper questions referred to. Dovall went outside and polling booth and demanded his rigus to vote, upon which Hattaway said he would see that he did not vote, and would mike it hot for him if he did. A crowd outside backed up Hattaway. It would he for their Honors to decide whether Hattaway was guilty of exercising undue influence, under section 7 of the Corrupt Practices Prevention Act. By section 3of this Act, corrupt practices means undue iofluence, and section 23 provided for persons guilty of corrupt practice:) not being allowed to vote, and if their votes were taken, that they be removed. The next clause of the petition was, that, at Howick, Thomas Sutcliffe or Thomas James Sutcliffe voted in respect of n person who appeared on the roll us " James Sutcliffe, freehold, Eist Tamaki, farmer, lot 2(>S, Pakuranfc'a." They would prove that the property was not his, but that of one John Sutcliffe, whoso name appeared next on the roll. The next paragraphs, 7, S, 9, and 10, referred to the conduct of the principal Keturiiing Oflicer at Otahuhu, and they submitted for the consideration of the Bench, that at Otxhuhu the election was not conducted as required by law, to give the freedom of voting and absence from restraint which the law intended. Evidence* would he given to show that it was the piincipai polling place, and section 10 of the Elections Act required the Returning Officer to conduct such deputies aud clerks as may he required. The instructions were that he should appoint clerks, hut he was to carry out the election at the principal polling places, appointing deputies for the other polling places. Id Otahuuu, at previous elections, one ballot box only-had been used, but in this case two were provided, and placed one at each side of the room in such a position that it was impossible for the Returning Oflicer to conduct the election, or for the scrutineer appointed to perform his duties iu the manner intended. They would sho-v that one clerk waa returned iu ii list of scrutineers submitted for one of the candidates, and he was put in charge of one ballot-box without any control whatever. He contended that this did not provide the security intended by the Act for overy voter to exercise the privilege of the franchise without restraint. With regard to the other clerk, it would be proved that he had asked one or more not to vote for the petitioner. As the result of that clause 10 applied. Then 20S person* had received voting papers, and 304 were counted at the close of the poll. Mr. Cotter gave a full and clear explanation of the method in which voting .papers were required to he given, the registered number and initials of the Returning Officer to be folded and gummed down, the stamping, ticking the roll, &c, all which hid to be done by the Returning Officer. On the roll there were 29S names ticked, but there were 304 voting papers couuted, and how, he asked, dici the extra six get into the ballot box? Of course they could not tell how these votes went, and nothing would show it except the power vested in their Honors to open the ballot papers. But the mischief did not end here, for clause 11 alleged that the voting papers delivered to voters as Otahuhu were not initialled by the Returning Oflicer as required by law, section 30 of the Elections Act. The Bench : Is that fact admitted ?

Mr. Lusk : It i a admitted that some of them tbe P ° U - clerks . nol b J tne *<>-

Mr Justice Gillies :I, it a Uo admitted that the roll is ticked six short? Mr. Lusk: That is aiso admitted, your Honor.

Sir. Cotter said, at thij stage, that he was instructed that witnesses who had been ordered out of Court were list«!nin? , Chief Jastica instructed the constable on duty to keep them away. Mr. Cotter contended'tbat these admissions made the election invalid, and he therefore thought they had better discuss this point first. Mr. Justice Gillies : Then, if the election is void, it is void for both the petitioner and the respondent.

, Ti ?f i ? hi t f Jas ''=e to Mr. Lusk : You don't admit that ?

Mr. Lusk : No. your Honor, certainly not. The Chief Jnstice : Then, I think, you had better argue this.

Blr. Lusk : It might save the time of the Court to do so.

Mr. Justice Gillies: The total result of the poll might also be admitted. The greater number seems to have been polled at this place. Mr. Lusk said there were four candidates. The numbers were 323 for Harris, 321 Buckled, la 4 Luke, and S Gordon. There were 12 informal votes. The numbers polled at Otahuhu were : Harris 83, Buckland 161, Luke 105, and Gerdon 7.

Mr. Cotter, on opening his argument, first called attention to section 30 of the Act as to the condition that the voting paper should be initialed, etc., by the Returning Officer, and submitted that the section made it imperative on the Returning Officer to comply with those conditions. At Home it waa not required, but here it was imperative that he should 4o it, but in this case the Returning Officer delegated his powers and duties to others.

His Honor: He did not personally icitial the voting papers or pnt the ticks on the roll.

Mr. Shanaghan : I personally supervised it. Mr. Cotter said had this happened with regard to one or two voters where there was a majority of a few hundreds, it might be a question whether there should be a fresh election, but here the question went to such a large proportion of the votes that the striking out of those vuces would be disfranchising a great number of voters for no fault of their own, but for the fault of the Returning Officer. Of the whale number of votes polled (800), 300 had been polled at Otahuhu, and it could hardly be considered that any person excludiug those votes c*uld be held to be elected. It would render the Act nugatory. These voters went to record their votes, but through no fault of their own they were rendered void. He quoted from the Wigtown case (O'Malley and Hardcastle election petition), where unstamped ballot papers were rendered void under the Ballot Act, section 2, which he also quoted. Hβ also quoted the Hackney case, from the same authorities, page 78, in which some polling booths had not been opened, and others had not been kept open, within the specified hours. The election was declared void.

The Chief Justice did not think the case quoted was within the principle of this case, for in the case quoted a number of voters were prevented from voting.

Mr. Cotter thought it did not apply if these voters were disfranchised, whose papers had not been initialled by the Returning Officer, and submitted that the election must be declared void.

Mr. Lusk replied, and first called attention to the fact that a special proviso was made in the G7th section of the Aot for the appointment of poll clerks, and the object appeared that they should preside at ballot boxes, and by section 24 it was provided that they must sign a declaration. The acts which were done by the poll clerks under the conduct and presidency of the Returning Officer, they were authorised to do. He quoted the 19th section of the Act, and said it was manifestly impossible for one officer to supervise several ballot boxes.

The Chief Justice said Mr. Cotter's contention was that the Returning Officer must initial the ballot papers and tick the roll.

Blr. Lusk asked when the duties of the clerks commenced ?

B Mr. Justice Gillies said the duty of the clerks was to see that only papers with the official stamp were put in the ballot-box, or to have rolls to tick, as a check on the Returning Officer.

Mr. Lusk said that in every place in the Act the Returning Officer was mentioned, and it was clear that it was intended that he could have assistance.

Mr. Justice Gillies said the duties of a clerk were dissimilar to those of deputies, and Mi\ Lusk would propose to make the clerks deputies. Mr. Lusk called attention to the 72nd clause of the Act, and argued that if the clerks were appointed and acted, they came under the clause to prevent the raising of such objections as this. Mr. Justice Gillies asked how he was to apply this to " the person " before whom such polling was held ? Mr. Lusk : These poll clerksMr. Justice Gillies : But the Act says " the person,"' not " these persons." Only one persou Mr. Lusk considered it was open to this construction, but he did not rely so much on that point. What ho relied on principally was the second part of the argument of Mr. Cotter, and that the cases quoted by Mr. Cotter "vere not applicable. The Hackney case had no appreciable application to this case. He quoted Mr. Justice Grove's remarks in this case, when he used the expression that an election was not to be upset because polling papers were not delivered in a proper manner, or marked in a. proper way. He quoted the case Woodward and Sarson, L.R.C.P., vol. 10, page 733, and Lord Coleridge's judgment, relying especially on what he said as to the case coming within the common law of Parliament, which he contended applied here where no special provision was made. In this case there was a large amount of irregularity, but the election was affirmed on the ground that the irregularities did not affect the freedom and fulness of the election, and th.it it was not shown that any person had been prevented from recording his vote. It was not the policy of the law to upset an election, and Mr. Cotter had failed to say that if the Olahuhu votes were struck out it would improve the position of the petitioner. On the contrary, it would place the respondent in a much larger majority than he now appeared to possess. On all these grounds he submitted that the contention of his learned friend ought not to prevail, and that a trifling irregularity should not set aside an election.

At this stage the Court adjourned for three quarters of an hour for luncheon.

On resuming the Court decided to hear Mr. Shanaghan.

Mr. Shanaghan said it appeared to him that the question was hedged with difficulties. They were asked to discuss an abstract questiou which should only arise when there was evidence of irregularities as to the proceedings at the booth. He might almost concede the truth of all that was stated by the learned counsel, and yet say that it did not apply to this day's proceedings. He desired to place the matter before the Bench from a Returning Officer's point of view, rle was appointed under a special Act, the duties being to provide for the secrecy of the billot, and to afford every facility for the election, and impartiality to each candidate. The Keturuing Officer had to provide billot papers, inner compartments for voters. When the Returning Ollicer looked over the roll and saw what he had to provide, he found that one ballot box was not sufficient, and so gets an additional ballot box or more. The law says he shall conduct the election with such clerks as he may require. The next question with him is bow he is most efficiently to condact the election. If he sat down by one ballot-box he could have no control over the others, In the present case there were four candidates and four scrutineers, thua there were five persons permanently at the table, and he could not bu placed so as to have supervision over one box and carry out his duties. He must be like the general of an army to superintend all and see that the poll clerks acted fairly. He pointed out tho impossibility of one Keturning Officer dealing with three ballot-boxes. On election days people rushed in, seme of whom required tbe assistance of the Keturning Officer in the inner compartment. He held thit the Act was to be read in its simplest way to secure secresy and security of voting. The object of initialling a voting paper was that, as the law made

improper voting criminal, to enable the rote to be identified. The polling at Osahuhu could not be done otherwise th:in by using two ballot boxes. He believed he bad power to appoint poll-clerks, {and that they should have something to do, and the Act meant that they were to be parties to conduct, with the Returning Officer, the election.

Mr. Justice Gillies: TVill that argument be used in regard to everythiug the Returning Officer 13 required to do ?

Mr. Sbnntghnn : No, your Honor. The Eeturning Officer is the he.ul, but such portions of his duties as he delegates to the clerks they may perform.

Mr. Justice Gillies : A.s, for instance, could the Poll Clerk lock the ballot-box and retain the key ?

Mr. Shauaghan : No ; that is an individual act. But he could the roll, and give ballot papers.

Mr. Justice Gillies : And pnt initials on it ? Blr. Shanaghan : Why not, sir ? Mr. Justice Gillies : And then may not the Poll Clerk put the question?

Mr. Shanaghan : Iso; that is a judicial act. The Poll Clerk 13 to do the mechanical work.

Mr. Justice Gillie 3 : But surely initialling ballot papers for identification is not mechanical work. As well might it be said that the Poll Clerk could be sent in with a voter requiring the aid of the Returning Officer in the private compartment. Mr. Shunaghm : Bat the ballot paper is not a ballot paper until it is issued to the voter.

Mr. Justice Gillies : But the law says otherwise, and requires that the unused papers shall be sealed up as well as those used. On what principle are yon to ba guided as to what must be done by yourself, and what may be done by a substitute when the Act refers in both cases to the Returning Officer?

Mr. Shanaghan explained that in bis opinion the only \v*y to judge was where responsibility c*me in, not the mere mechanical work of clerks.

The Chief Justice : Then your contention 13, that at elections there may be several poll book". The Act indicates that he (the Returning Officer) shall have only one—where do the others come from ?

Mr. Shanaghan : The roll may be divided, yet be only one roll. Iα fact, there was no provision for a Returning OrScer getting a certified copy of '.he roll.

*lr. Justice Gillies said the Act provided that rolls should be supplied to deputies. The Act was specific as to where the duties of clerks came in.

Mr. Shanaghan said that he contended that clause 19 gate his clerks power to do what he directed with him, that they were with him to assist him ia conducting the election, and be took it further that the Returning Officer was bound to furnish facilities for carrying out the Act. Returning Officers were not supposed to have a knowledge of law, but to interpret the law in its broadest sense, and furthermore they were famished with printed instructions which exempted them from liability for the acts of their deputies. He handed to the Bench a copy of the printed instruction". Mr. justice Gillies : These instructions must have been issued under the old Act. Mr. Shanaghan : Xo, yaur Honor, they were issued for this electioa. The Chief Justice said that more than one ballot-box could not be required when only six people were allowed in the booth at one time, at least until ihe first was full. Mr. Justice Gillies coincided in thi3 view. Mr. Shanaghan said the object of having more than one ballot-box was to facilitate the polling.

Mr. Justice Gillies said this might be a rea»nn for having different compartments, but not for different ballot-boxes, for all the questions had to be put before the paper was given to the voter.

Mr. Shanighan said that sometimes a difficulty arose through .1 man requiring the assistance of the Returning Officer in the inner compartment.

Mr. Justice Gillies : Yes, that is a difficulty. Mr. Shanaguan: Then comes the question whether anyone is debarred from voting. The Chief Justice : You admit that several papers were put in without the corresponding tick on the roll?

Mr. Shaua»h:in : That 13 a matter for explana tion.

The Chief Justice : VTe may presume it was an omission ; but. how are we to discover who these voters were?

Mr. Shanaghau said he could see no way to rectify it, except to open the ballot papers, and the Returning Officer had no power to do that.

The Chief Justice: Would that not void the secrecy of the ballot ?

Mr. Justice Gillies said there was no means of ascertaining whether these sii persons had not voted at some of the other polling places. Mr. Shanaghan said he thought tha duty of the Court was to read the Act in the light of its working not in its technical sense.

The (Jhief Justice said it they could not go into the question without the Couit getting the voting papers, would it not interfere with the secresy of the election, and would not the election be void ?

Mr. Shanaghan pointed out how the numbers could be compared without seeing how the votes went, but Mr. Justice Gillies remarked that it would be a rather awkward job to ungum all those papers.

Mr. Cotter then addressed the Court in reply to the arguments of Mr, Lusk and Mr. Shanaghan.

Their Honors retired, ami on resuming their seats in about 10 minutes, The Chief Justice ?aid : We have considered the question, and although we see that there has been great irregularity, we are not prepared to say that it has voided the election. Perhaps, in connection with other matters, it may have the effect of voiding the election. That is all we can say at present, and we bow call on the petitioner to go on with his case. Mr. Cotter said he had received a telegram from Auckland, dated 1.13, stating that the Ringarootna was not yet signalled. The Chidf Justice suggested that they might take the personation case. Sir. Cotter assented, nnd called— Themas James Sutcliffe deposed that be was a lahourer. (Mr. Cotter asked the Keturn ing Officer to produce a copy of the roll used at the election.) Witness resided at Flat Bush at the time of the election, and had resided there 18 or 19 years. The name he used on hi* deeds was Thos. James Sutcliffe. He could not read. (.Mr. Brewer read from the roll " J.ime3 Sutcliffe, freehold, East Tamaki, farmer, 2GS Pakuraug*."') Witness put in his plan showing him to be owner of part of lot 270, Pakuranga. He got the plan made before the polling. He remembered the polling for Franklin North, and voted at that election, but could not tell at what time of the day. He w.is as sober then as he was now, and could say it was in the afternoon after dinner some time. He voted at the Howick polling place, which was about 5 miles from his place of residence. He left home in the morniag. Before going to the booth he called in to Lundou's public-house, and might have drank a glass of beer or two before he came out. When he left there, he went up to the polling place. On that day he had no conversation with any person or persons as to his voting. (To His" Honor : No one asked him to vote that day, or how he should vote.) The only person who spoke to him about, his vote, was a week or so before the election, a Mr. JRoberts asked him to vote for Sir. Buakland. Witness told him he did not know whether he had ;i legal vote or not, and Roberts told him he had. Witness did not think he ever spoke to Mr. Auckland about the election.

His Honor the Chief Justice directed the witness that he could not refuse to answer questions, but if he did answer freely and properly, he was entitled to an indemnity, which he would receive. The witness said if a question was put to him fairly and properly he would answer, if he was able.

Kximiu.itiou resumed : When he went to the polling booth he asked the Returning Officer whether he had a legal vote. He shoived bis plan and deed, and they said his vote was legal, and he voted, the Returning Officer accompanying nisi into tbe compartment. AVitness knew Thos. Spiers, of East Tamaki, and had seen him on the polling day, but could not say whether he spoke to him. Spiers did not ask witness to vote for aay one, but Spiers went in with him to Bee whether he hid a legal vote, but did not ask him to vote for any one in particular. He did not send in a claim to be put on the roll, but Mr. Alfred Harris told him he would put his name on the roll. This was about a week or so before the poll.

The application vras produced by Mr. Shanaghan, who also put in a printed roll, to which Mr. Cotter objected, and required a written roll.

His rionor said that was provided for. Mr. Cotter pointed out tha: the name was printed James, and Thomas had been icterhneated.

His Honor Mr. Justice Gillies intimated that it appeared to him the roll complied with the Act. It was interlined and altered, and Mr. Shanaghan explained that this iv,is done for convenience as Dew claims came in.

Examination resumed: Witness could not write, and therefore did not instruct Sir. A. Harris in writing to put his name on the roll. He was about 20 vears of a n e Mr. Lusk did not cross-eiamine tha witness. His Honor sa,d the Court could not go into the questiou of revising the roll. Mr. Cotter s«id of course they never expected to nnd the roll in this state. All they could do was to show that be was not the owner of the property in respect of which be voted. Thomas Spi.jrs deposed that he resided at Turanga, and was a farm labourer. He knew last witness well, and remembered the day of the polling, and saw Sutcliffe, last witness, on that day. SutclioVs residence adjoined witness's, and they went into Kowick together to vote. They stopped at London's, and had a glass of beer. He did not ask witness whether he was going to vote, for he knew a fortnight or three weeks previous he was going to vote for Major Harris. They had no conversation as to whether Sutcliffe had a right to vote. There may have something cropped up, but he did not recellect it. YTitness recorded his vote, and as Sutcliffe was doubtful of his ri»ht to vote, they asked the Returning Officer, and then Sutcliffe voled. No money transaction passed between Sutcliffe and witness that day. Cross-exaruineii : He was present when Alfred Harris filled up the paper for a claim to vote for Mr. Sutcliffe. Mr. Harris signed it for him. and witness believed he touched the pen. Witness believed Sutcliffe was put down a lesidentHl qualification.

To His Honor Mr. Justice Gillies : He only saw Mr. Harrie fill in the claim to vote, but did not know the contents of it.

His Honor said it was evident Mr. Alfred Richard Harris had not considered he was liable to two vears' imn i-nnm t f no tion, in sending in a claim to vote without a written authority. It was manifest that the qualification in this paper was filled in, not by Harris, but by the Returning Officer. John Sutcliffe deposed that he was a farmer living in Pakuraflga. The deed produced was his, but he asked who authorised Mr. Cotter to bring his deeds there ? Allotment 268, parish of Pakuranga belonged to him, and Gid so since 1575. He had sold another property, 219, in the same district, and had conveyed it before the election. He had brothers, Thomas, James, Richard, and Edward.

Cross-examined : His father was dead about nine months. His name was Thoma3 Sutcliffe. To His Honor : He was not the owner of lot 70, and did not know who owned it. He was the only John Sntcliffe in the district.

It appeared on reference to the roll that the witness had voted as John Sutcliffe, owner of lot 70.

Mr. Cotter : The matter is regularly mixed up. your Honor.

The Court then adjourned until 10 o'clock this morning.