FRANKLIN NORTH ELECTION.
PETITION' UNDER THE ELECTION PETITIONS ACT, 18S0. [Before His Honor Mr. Chief Justjce Prendergast and His Honor Mr. Justice Gillies.] The adjourned sitting of the Court was held at Papakura to hear arguments and evidence in regard to the petition of William Frank Buckland agßinst Benjamin Harris beiDg declared elected for the representation of the electorate of Franklin North, claiming that the petitioner had a right to be so returned. Mr. Cotter and Mr. A. E. Whitaker appeared for the petitioner, and Mr. Lusk (instructed by Sir. Burton) for the respondent. THE IMPERSONATION CASE. The first witness called was Alfred Richard Harris, who was examined by Mr. Cotter. He deposed that he was a farmer, residing at East Tamaki. He remembered the election for Franklin North. He was brother of the sitting member, the respondent, but did not act for him. He recorded his vote at Howick, in respect of hia qualification on the roll. The signature to Sutcliffe'a application to be placed on the roll was his as attesting witness. The signature of the applicant was also in his writing. It was signed by him at Sutcliffe'* request about the 11th of October. There was Bothing to impress the date on his memory. It was signed by him in his own house. Sutcliffe was present, but no one else to his knowledge. Witness asked Sutcliffe to come in. Sutcliffe asked witness to put him on the roll, and he then asked him in. Witness had not previously , asked him to be allowed to do so ; but Sutcliffe had previously asked him two or three times to do so. When witness Bigned Sutcliff's name Sutcliffe held the pen or touched it. He could I not swear he held the pen during the whole time the name was being written. He had not requested witness iti writing to put him on the roll, for he could not write, and that was why witness did it for him. He remembered his brother's meeting at Flat Buab, in iNovember. He signed the application prior to that meeting, but he could not say how loug before to a week. The writing in red ink was not his and was not on it when he Mgned it, nor did he instruct any one fco put it on. He
•ii.l not remember what was done with the p.»per after he attested, and could not swe\r svhtither he gave it to Mr. Sutclitfe or whether he (witne&s) brought it to Mr. He had aent some forms to the Returning Officer. Mr. Lusk asked their Honors' ruling a 9 to whether this evidence was relative. It appeared to him that its object was to show the witness was guilty of Borne imx>ropriety unconnected with this case. Mr. Cotter said if the witness had been in the habit of getting a number of these forms his answer would be intelligible as to his not recollecting what was done with this paper. Mr. Lusk did not object to the question on this ground. His Honor the Chief Justice understood the witness was willing to admit that he either sent it or brought it to the Returning Officer or gave it to Sutcliffe to bring. Examination resumed : He would not swear I whether he had obtained other forms. He I could not recollect the exact dote on which it I was signed. It was abouc the 11th of October. He did not remember when the notice of the election first appeared, bat he remembered the day of nomination, but not the date, and could not say how long it was before that he signed I the paper. To Mr. Lusk : He filled another paper for Sutcliffe after the 11th of October, as he was anxious to be put on the roll, and witness could not recollect whether he had forwarded it to the Returning Officer. This was on the evening of his brother's meeting at Flat Bush. His brother, Messrs. Spiers, Sutcliffe, Hattaway, and he believed a man named Woodward were present. The document was signed in the same manner as that before the Court. The second one was forwarded to the Returning Officer. He had known Sutcliffe since be was a boy as Tom Sutcliffe. He had heard be had another name, and when he asked him he said his name was Thos. James. He knew no one else in the district of that name. The Chief Justice said no doubt the object of this examination was to explain Spiers' evidence. Mr. Lusk said that was his object. The Chief Justice to Mr. Cotter: And your object is to show that it was not signed ou the date it bears, but subsequently. Mr. Cotter said the fact was that he did not understand it. It was dated the 11th of October, and did not reach the Returning Officer till the Oth of November. He would cross-examine the witness on this point, and in regard to these two papers. Re-examined: The claim in Court was that which he had signed at his house. It was a blue paper. That he signed at Flat Bush was, to the best of his belief, a white paper. His brother did not ask him to procure these forms, or to do anything else for him.
William Shanaghan, Registrar of Electors for Franklin North and South, and was Returning Officer at the last election for Franklin Noith. He could not remember how he received the claim in evidence. The date of its being received was marked 1110-Sl, and he believed that was the date he received it. It was his custom to mark all claims when he received them. He wrote the memorandum which appeared in red ink on it about the time he received it. He produced the electoral roll which was in force on the 9ch of November. It was the ouly one he had, and that from which the roll was printed. He sent the roll on the 20th of October to Mr. Cotter. The roll bearing date October, ISSI, was now the legal roll of the electorate, and was the one printed from the roll sent down in October. The name James Sutcliffe opposite the number 1201, and containing the interlined name Thomas before James, was one that had been placed on the roll on the previous March, and therefore he disregarded the first claim in October, as the name had already been registered. The written roll, prepared in March, IS7O, sent to the printer, and was not re ceived back again. Since then he had had only printed rolls. When at Turanga, he found that Thomas James Sutcliffe was rated for lot 265, Pakuranga, and he made the alteration in consequence. He had no roll showing the name Thomas James Sutcliffe, iuserted without any striking out or interlineation. To the Judge : Instead of making a new line for Thomas James Sutcliffe, of lot 21$, he altered John Sutcliffe, of lot 219, to Thomas James Sutcliffe, of lot 2GS, and Thomas Sutcliffe below that again be altered to John Sutcliffe.
The witness was questioned closely by the Bench as to the rolls and the alterations which he bad made when the names were placed on tbe roll, the reasons for the alterations, kc. He explained that it became necessary to hurriedly divide the district, and he altered the printed rolls as the papers he sent to the printer. In reply to Mr. Cotter, he said that the first time he found out the mistake of the printer in regard to Sutcliffe's name was when he received a copy of this petition. He referred then to the names of Sutcliffe and Dovell, i;nd found there were mistakes in both instances. The printed roll he produced as the legal roll of the district, which was a reprint of the altered one, with the exception of printers' errors. In the present legal roll, the name was altered from James to Thomas James Sutcliffe. The claim he received (already in evidence) was for a residential qualification, but he was already on the roll as a freeholder Question: DM you, as required, send a notice that he was already on tbe roll ? Mr. Shannghan asked the Court whether he was obliged to answer that question or whether it had any bearing on this petition whether or not he had omitted to perform a portion of his <luty. Mr. Cotter said the allegation was one of personation, and it was of importance that they should have all the facts. Mr. Justice Gillies said no evidence of error by the Registrar could make a case of impersonation. The Registrar swore that this was the man whom he intended to put on the roll, and through an error bis qualification was wrongly described. The Court could not go behind the roll, and his voting after having asked the Returning Officer whether he had a right to vote would not constitute personation. The Chief Justice said the Court did not require Mr. Lusk to call any evidence. Mr. Cotter proposed to call Mr. Buckland to depose to a certain conversation with Sutcliffe. Mr. Justice Gillies Haid 110 conversation with Mr. Buckland, or any one else, could substantiate the charge of personation. No doubt the case looked very suspicious until thej had Mr. Shanaghan'a evidence as to how the irregalarity
occurred. Although the evidence had failed to establish personation in this case, it hud come out in evidence, although not alleged in the petition, that Alfred Kichard Harris had beon guilty of personation, and ha asked Mr. Cotter how he meant to deal with it. Mr. Cotter said that the vote of this man was objected to on other grounds. BEJECTION OF VOTES, kc. Major Campbell, clerk of the House of Representative and clerk of writs, deposed that as such he produced the election papers of Franklin North. He produced the package of papers polled, amongst others certain disallowed papers, set aside for separate custody, which he opened by direction of the Court. He produced one from Mangere containing a name written on the face of the voting power. The Chief Jastice : It is admitted that the vote was rejected. Mr. Lusk said that was so, but Mr. Cotter ; contended it was wrongly rejected, whereas ' they claimed that it was rightly rejected. He argued that the placing of a name on the paper was contrary to the whole spirit of the Act, the whole intention was to secure secresy to prevent anyone knowing the voter or how he registered his vote, so that there should be no temptation to use undue influence. He pointed out that if writing names on the voting paper was allowed in one case, it might be so in a hundred, and an employer of labour say, might let it be known to his employes that it would be a benefit to them to'write their names on the voting papers. Thus, the whole spirit and policy of the Act would be infringed. It was not specifically stated in the New Zealand Act, but wns so under the English Ballot Act, which provided that the vote thus marked should be invalidated. He quoted from reports of the decisions of Judges in election petitions cases (OWlalley I and Hardcastle, vol. .3, pait'2, page 115). The Down case, also the Wigtown case, p 220. The Chiet Justice said he did not thiuk it necessary to ask Mr. Cotter to reply. They must contrue this Act as they would any other, to ascertain whether the vote whs or was not a valid one. The Act provided specially for cases in which votes should be declared invalid, as,
fur instance, where more than the required i number were left on the paper, or where it i shrt.il be shown thit a person has done anything to induce a voter to display his voting-paper. The Legislature had expressly provided for these two cased, and what they had omitted to provide, must not be assumed to be an offence. He therefore said tint writing the name across the face of the voting-paper was not an offence or contravention of the Act, and that the voto was not invalid. The Act did not provide that a voter was to be prevented from making known how he voted before or after, if he chose to do so. Experience also showed that people openly stated how they meant to vote, and after voting, how they had voted. He must, therefore, declare this vose a valid one, which ought to have been received. Mr. Justice Gillies said he entirely agreed with the Chief Justice. The policy of the New Zealand Act was more to protect the voter than to ensure secresy. He quoted from Justice Mellor, and said he was quite of opinion that the writing of the name across the voting-paper did not invalidate the vote, and this vote was therefore added to the votes for the petitioner. The next case taken was in regard to three votes rejected at Papakura, because two of
them were marked with crosses, and in a third instance, where only part ofthenimes, not the whole, had been obliterated. In regard to the crosses, Mr. Lusk contended that the papers ought to be admitted, as they iudicated the intention of the voter. His Honor Mr. Justice Gillies pointed out another defect in regard to these two papers. The number was on the wrong side of the paper. Mr. Cotter: Yes, and one of them is not even sealed. Mr. Justice Gillies : Oh, it has been gummed. Mr. Lusk argued the point at considerable length, pointing out that in England the direction to a voter was to indicate the names of persons for whom he intended to voce by a cross ou the right side of the ballot paper. The Chief Justice pointed out that in the schedule it was stated the voter must not leave uncancelled, &c., or his paper would be invalid. Mr. Lusk argued that there were different methods of cancelling, one of which mi&;ht be by a cross. He thea addressed himself to the third paper, in which the Christian names of the candidates for whom the voter did not intend to vote were ouly struck out. The Chief Justice said, with regard to the votes marked by crosses, the Court was satisfied that they were invalid. Mr. Cotter then addressed the Court to show that the other was also invalid, as the directions had not been complied with which required that he should strike out the name of the candidate for whom he did not intend to vote by drawing a line through it with a pen or pencil. This, he argued, could not be a valid vote, as the whole of the surnames of the candidates were left uncancelled. The Court held that 'the vote was a good vote, aud in compliance with the Act, although the line had not been carried through the whole j name the intention of the voter was clearly I shown.
After the adjournment for lunch, the next issues were taken. These were THE INTIMIDATION CASES Contained in clauses 2 and 3 of the petition. 44 That the Deputy-Returning Officer at Howick refused to give William Dovell a voting paper without attaching to it a condition which he was not authorised by law te do, and further that Robert Hattaway, jun., aud others had used intimidation to William Dovell, aud thereby prevented him from voting." James Duvell, a shepherd, residing a Pakuranga, deposed that lie was the person appearing on the roll as William Dovell. (This was admitted.) On the day of the electiou for Frankliu Isorth he went to the Howick polling place to vote for Mr. Buckland. Mr. Lusk said this was a question which his learned friend had no right to ask. The man might hove changed his intention. It was held at the Wakanui case that this could not be introduced. The Chief Justice asked whether he could not give evidence of hi 3 intention as expressed ? Evidence resumed : On his arrival at the polling booth there was a mob, and he heard some of them say: 44 Oh, that's the follow." lie tethered his horse and went into the booth, and the Returning Officer asked his name. He told him, and then Hattaway came in and objected to his voting. He (Hattaway) asked the Returning Officer to ask him how long he had been in the district. The Returning Officer, Mr. Smith, said he could not do so, Hattaway must get two other voters. Hattaway then asked witness who put him on the roll, and witness told him he did not know, and even if he did know he would not tell him. Ho said witness was liable to a heavy penalty, and asked if it was McLean put him on the roll. (Witness understood him to mean his employer.) Hattaway continued in a bouuceable manner, k4 lf it's McLean we'll make it hot for him." Witness told the Returning Officer that if a person was on the roll, he had a perfect right to vote. The Returning Officer said: 44 You can vote if you like, I shall cast your vote aside, aud it will not count." The reason he gave was that witness had not been a sufficient time iu the district. He had in the meantime passed a voting paper to witness, who said 44 What is the use of my voting is it will not count ?" The Returning Officer asked wituess how loug he had been iu the district, and witness informed him. Witness then went outside seeing it was no use his trying to vote, and he went down the road to meet Mr. Roberts, who asked if he had voted. "Witness told him no, and Roberts told him to come back with him; that he had a perfect right to vote. On arriving within about half a chain of the booth ho saw Robert Hattaway and a mob of others outside. Some conversation took place betweea Hattaway aud ' Roberts, and Hattaway said 44 I'll se«> that he don't vote, and if he does we'll make it hot | for him." He again asked witness who put 1 him on the roll, and witness told him he did not know. Hattaway said "We will pick out, and if it is McLean we will make it hot for him also." Witness did not go in to vote. He was afraid to vote on account of Hattaway's bounceable manner and threats. He did not want to get into a row himself, or get his masterinto trouble.
Cross-examined by Mr. Lusk: He had never applied to be put on the roll, or ask any one else to do so. He was told he was on the roll. On the occasiou when he first went into the booth, the Returaing Officer offered him a voting paper, and asked witness how long be had been in the district. Witness said six weeks or two
months, and the Returning Officer said then you can't vote, but witness said that., being on the roll, he hid a right to vote, upon which the Returning Officer told him he could vote if be liked, but he would put it aside, and the vote would not count. Witness then walked out, leaving the voting paper on the table. There were several people present in the polling-booth at the time. The witness was also crossexamined as to what took place on the second occasion. Several spoke, but only Hattaway addressed him, and his mind could not therefore be affected by what the others said. He understood from Hattaway that if ho voted Hattaway set the law in motion to punish him. The name on the roll was William Ouvell. He signed the declaration claiming to vote produced. He had only been six weeks or two months in the placc it the time of the election. He had told all that transpired iu the polling-booth. To Mr. Cotter : Witness did not take the voting paper in his hand, because the discussion then took place that he had not a to vote. When he caine up the second time and saw the crowd, and Hattaway spoke, he tbought he actfd as their spokesman. Mr. Lusk asked the Court whether they would at this stage hear argument as to whether what was alleged was intimidation. It might save a ! great deal of evidence pro and con as to the exact words used. The Chief Justice : Do you mean that you shall argue the case on the admission that the statement of the last witness wa? true ? Mr. Lusk : No, your Honour. Mr. Justice Gillies: Then it is no use arguing it. Ralph Harris, of Eist Tamaki, deposed that he wjuj in the Howick polling booth when Dovell came in, followed by Hattaway. The witness gave a very vague, confused idea of what took place, but in reply to Mr. Justice Gillies he aaid that nothing that transpired could lead htm to an opinion as to who Mr. Dovell'.was about to vote for, John Smith deposed that he was Deputy Returning Officer for Howick at the last election. Dovell presented himself to vote, but before witness could look at the roll two men—Hattaway and another —came in, and requested him to ask Dovell was he a resident in the district for six months. Witness put the question, and Dovell replied he was not. Witness told him he might fill up the paper, and then give it to him, is place of puttiug it in the ballot-box. Dovell asked, " Why should I give it to you," and witness said he would mark it illegal. Dovell then asked what good would it be for him to fill the paper if it was illegal, and asked would he get into trouble. Witness said he knew nothing about it, and he then said he would not vote. Witness told him to remember he did not refuse him a voting-paper. Some one who was with Dovell advised him to fill it up, but witness told him he could not put it iu the ballot-box. Had he taken the paper it would have been on the terms prescribed by witness in the tirst instance. He did not know who had come in with Hattaway. Hattaway was not a scrutineer. To the best of witness's belief no conversation took place between Hattaway rnd Dovell, and Dovell said nothing to witness about his right to vote being on the roll. The whole affair was quiet and orderly, and only occupied from two to three minutes. Mr. Lusk did not cross-examine the witness. John William White, who was scrutineer for Mr. Buckland at the Howick polling-place, also gave evidence as to what occurred when. Mr. Dovell came into the booth, followed by Hattaway. . The witness was not cross-examined. Robert Andrew, farmer, Pakuranga, deposed to hearing Hattaway tell Dovell that, whoever put him on the roll, was liable to a peualty of £50 if he voted. This was outside the pollingplace. To His Honor : I did not understand from Dovell who he was going to vote for, and he did not hear Hattaway say anything about how he was going to vote, Robert Hattaway, farmer, East Tamaki, deposed that he remembered the Howick polling, and went there some time in the afternoon. He voted at Howick. He knew Dovell now, and recollected his coming to the polling place. Witness was on the road with several people. Witness believed he had himself then recorded his vote. Witness followed Dovell into the
booth, his attention being called to the fact that he was going to vote, and he had no legal voie. Witness could not tell who made the remark. There were a good many standing round, but in consequence of the remark he went in to call the Returning Officer's attention to the matter. He had previously been told that Dovell not legally on the roll, and witness spoke to the Returning Officer, and sain, "I have an objection to make to this man, that he is not legally on the roll, that be had not been a resident in North Franklin loDg enough." The witness then described what took place, and corroborated the statement made by Mr. Smith. He was also questioned as to the second interview. In cross-examination, he said he did not know who Dovell was going to vote for when he objected to him. To Mr. Justice Gillies : 1 was a Harris man, but did not know Dovell or how he was going to vote. He had heard that he was put on by Mr. McLean, to vot3 for Mr. Buckland. This closed the case in regard to these paragraphs, 2 and 3 of the petition. Iu leply to His Honor, Mr. Lusk said he had two witnesses to speak about what took place in the booth. He had no evidence to offer as to what took place outside the booth. Thomas Foley, setter and omuibus driver, Howick, who was in the porch of the polling booth when Hattaway objected to Dovell's vote, was examined. He corroborated mainly the evidence already given by Smith and others. There was no noise uor confusion in the booth. The wituess was cross-examined at some length. Mr. I.usk asked whether argument would now be taken on this case, or whether they should proceed with the other charges. Mr. Justice Gillies said the only two other charges were those with regard to the appointment of poll clerks in 7, S, and 9. The Chief Justice asked Mr. Cotter to finish his case, and then Mr. Lusk could raply on the whole case. THE OTAHUHU POLLIXG. 1 Mr. Shanaghan deposed that he conducted the polling ac Otahuhu at this election, buthad not done so before. He knew that only , one ballot-box was used at the previous general j election. He did not commuuicate with Mr. Buckland as to appointment of scrutineer?, but he read the clause from the Corrupt Practices Prevention Act at the nomination. He received a list of scrutineers from Mr. Buckland, and believed there was only one scrutineer for Otahuhu. He telegraphed to Mr. Buckland, stating that he would require the names of all persons employed in his election, as per clause 2G, Corrupt Practices Prevention Act. He had not then finally made up his mind as to how many ballotboxes he should have in Otahuhu, but did so a few days after. The telegram was sent on tlie Saturday, and he made up his mind to have two on Monday. He did not afterwards inform Mr. Buckland that there would be two ballot-boxes, or till the day of the polling. When he decided to have two ballot-boxes, he wrote to William Dal too, Bush, and A. M. Shepherd, asking them to act as poll clerks. It was not until Wednesday night he communicated with Mr. Sefton. At that time he had received from Mr. Luke a list of his scrutineers, and Mr. Sefton's name was on that list as an unpaid scrutineer. He was on the roll of electors. He subsequently appointed Mr. Sefton as poll clerk, Mr. Luke having previously intimated to witness that he did not require Sefton, and did not intend to employ him. He did not know Sefton had anything to do with the election. He only heard he was a school-teacher at Otahuhu, and secretary of the Oddfellows. He also appointed Mr. Bush, but did not know whose candidature he favoured. He had the ballot boxes about midway. The witness gave a sketch of the hall, and the position of the boxes and tables. At one table Mr. Sefton and Mr. Paul, Mr, Buckland's scrutineer, sat, and at the other Mr. Bush, without any scrutineer. On each table was a ballot box, separated rolls, a seal, kc. His own table afforded him a view of the whole position. He did not leave the hall during the polling hours. He saw every voter come in, except when he i would be engaged at the inner compartment. ' He did not give instruction to the poll clerks not to give papers to persons when he was at the inner compartment, but they were instructed r>ot to give voting papers until the persons in vhe secret compartments had left them. Mr. Lusk raised the objection that this was practically not evidence to apply to the three
clauses of the present inquiry, but tr, 4. last dau.es. tbe fact, of which were 7° To tbe Chief Justice: id »£ •" any information to any candidate that t£m would be two ballot boxes. Mr. Bucklinrl » the only one who had scrutineer.. The oth«« did not appoint scrutineers. others tble^x^pe™= Can ' y ° U "P l "* ATr V p ne t' ** ?" eS " There w * a a ru,h durinz Mr. Paul a absence at one table. The clerk? took down the numbers on pieces of p a « 7 and must have forgottea to tick their rolls air I aul scrutineer, was called to prove that he could not perform his duties efficiently on account of tbe distance of the ballot boxes Mr. Lusk said this fact wag admitted. Thev had no reason to doubt the statement. This was the petitioner's case. Their Honors retired for five minutes On their return to Court, the Chief' Justice asKeu what -vaa inten-led to be done as it seemed impossible they could finish that night ' Sir. Lusk said he h id a suggestion to Hia learned friends and himself had agreed if their Uonors thought it desirable to conclude the case to-night, they would leive the case in the hands of the Court without addresses but if not, there would be no object in their doing ao, The Chief Justice asked it thpy could not adjourn to some place nearer town. air. Justice Gillies said they might adjourn to Utahuhu. There were sereral imjwrunt and novel points in this case, and he would like tue assistance of couusei. Mr. Cotter suggested that now the cisea were closed, they might adjourn to Auckland. Mr. Justice Gillies mid the Act required that it must be in the district. Finally the Court was adjournal till 10 o'clock this morning, to the Otahuhu Public Hill.
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FRANKLIN NORTH ELECTION., New Zealand Herald, Volume XIX, Issue 6342, 16 March 1882
FRANKLIN NORTH ELECTION. New Zealand Herald, Volume XIX, Issue 6342, 16 March 1882
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