FRANKLIN NORTH ELECTION.

New Zealand Herald, Volume XVI, Issue 6343, 17 March 1882, Page 6

FRANKLIN NORTH ELECTION.

THE ELECTION DECLARED INVALID. [Before TTU Honor Mr. Chief Jas'ice Prendergaat aad His Honor Mr. Justice Gillies-J The adjourned Bitting of the Court to bear the petition regarding the Franklin North election was held yesterday, at the Otahuhu Public Hall. Mr. Cotter and Mr. A. E. Whitaker appeared for the petitioners, W. F. Btickland ; and Mr. Lusk and Mr. Burton for the respondent, Major Harris. Mr. Shanaghan, Returning Officer, who was unrepresented by counsel, conducted his own case. The whole of the evidence had been con* eluded on the previous evening at the second sitting of the Court at Papakura, and the adjourned sitting was for the purpose of hearing counsel. His Honor the Chief Justice said : Last night we indicated the particular points upon which it would be desirab!e for couusel to address the Court, but first there is the question of the positions of Mr. Hattaway and Mr. Alfred Kichard Harris. We may or may not have to report one or other or both of those men, and it is necessary that notice should be given to them, that they might have an opportunity to show cause why they should not be reported. I understand that both men are present. At the conclusion of this case, if the Court considered that they were guilty in the one in* stance of intimidation, and in the other of impersonation, it would be necessary for them to show cause why they should not be reported.

Mr. Lusk, in opening his case, said before entering more particularly on the points mentioned by their Honors la&t night, he wished to start with knowing his exact position. He pre* sumed that after the investigation the result was, bo far as the parties to the petition were concerned, there still remained a majority of two votes for Mr. Harris, and unless it was shown that two votes Bhould be deducted from Mr. Harris 1 votes, or that more than two were added to the other, the election could not be altered. If that was so, he would before entering on the question of the mistakes made by the .Returning Officer, deal with the question affecting the votes. He would first deal with the allegation in the second subsec* tion concerning the conduct of tho Returning Officer in regard to refuting a voting paper to Dovell without attaching a condition, which he was not authorised by law to do. He referred to the evidence, and contended that it did not bear out the allegation that the voting paper was refused, and the real question was, whose fault was it that Dovell did not vote ? He eaid he was afraid, and the reason was that he was improperly on the roll, aud it was a legal trouble he feared. He did not deny that the Returning Officer put a question which he was not entitled to do. His Honor pointed out that the allegation was that the voting paper was refused, except on a condition, and the condition was that when filled it should be given to him, and aot placed in the ballot box. Mr. Lusk then dealt with the case of intimation, and contended, after reference to the evidence, that there was no intimidation within the meaning of the Act. He said the Court had already disposed of the 4th section by declaring that Sutcliffe was the person entitled to vote, but he would refer to the facts and law of the case as it applied to Mr. Alfred Kichard Harris. He admitted Mr. Harris had not taken the proper way when Sutcliffe touched the pen, conceiving that by doing so the man himself was signing his name. It was an erroneous idea, nothing more. He endeavoured to carry out the law, although it was done stupidly and clumsily, under the impression that he was taking the right way of doing it. He contended that the Court was not entitled to take any action thereon, and quoted the 4th section of the Election Petitions Act to show that the Court had no power to investigate any complaint of the petitioner outside his petition. The Chief Justice asked Mr. Cotter whether he could contend that any use could be made of the matter of personation in Mr. Harris' case ?

Air. Justice Gillies asked could he contend that the vote should be struck out, inasmuch as the improper practice was not " at the election," but prior to it? If he was not prepared to contend that, Mr. Lusk need not proceed with this argument. Mr. Cotter said he had meant to argue that. The Chief Justice said the Court was with 41 r. Lusk on that point. Mr. Lusk proceeded to sum up the facts of Dovell'd vote, and then dealt with clauses 7, 8, and 'J, relative to irregularities at the polling at Otahuhu. The matter of the two last clauses, the facts of which had been admitted, had been argued at great length when the case was first opened, and Mr. Lusk proceeded to argue that sufficient evidence was not shown to warrant the Court in declaring the election void. At the close of his address, Mr. Lusk said, as Air. Shanaghan did not mean to address the Court, he thought it but right to make a few remarks in his behalf. Although Mr. Shanaghan might have acted under an erroneous impression, it was clear that no person was prevented from voting, nor had any question arisen except regarding Sutcliffe's vote, which was found to be perfectly right; and Dovell's vote, which was not given, and over which Mr. Shanaghan had no control. It was true he had made mistakes but no person was affected, and that in fact the person whom the majority of voters were in favour of was elected and that there was no ground for disturbing the election. Mr. Cotter replied : He first referred to the matter of Mr. Harris' vote, claiming that it should be struck out, arguing that it was only received by the .Returning Officer after the writ was issued, and therefore was "at the election." Their Honors said there was no evidence at all that Harris sent in this claim. Mr. Cotter addressed the Court on the intimidation case, and quoted authorities— O'Alalley and Hardcastle, Kogers on Elections, 11th edition, p. 392, Weekly Reporter, vol. 5, p. 558, and submitted that Bee. 5 of the Corrupt Practices Prevention Act made the offence proved against Hattaway undue influence, and prevented Dovell from exorcising his vote. He then asked the ruling of the Bench on this point, it having been intimated that if nndue influence was used, then the election should be declared void. Air. Justice Gillies said that if intimidation was proved the effect would be that the election would be void. That was the main question.

Mr. Cotter said that there was also an important question regarding the six extra rotes found iri the ballot-box which had not been ticked on the roll. It might be found that these votes were given by improper persons, and that they had been improperly exercised, and the petitioner without that knowledge would not be able to show that in his petition, because, owing to the ballot-boxes being placed at both aides of the room, the scrutineer was unable to perform the duties for which he was appointed, and they were therefore prejudiced. Mr. Justice Gillies said the Court had already ruled that the irregularities at Otihuhu were not sufficient to void the election. Addressing Mr. Lusk, Mr. Justice Gillies asked if he admitted that Hattaway had voted for the sitting member. Of course, having the votingpaper, they could ascertain, but if it was admitted, it would not be necessary. They could not ask him for whom he voted. Mr. Lusk consulted with the witness Hattaway, and then informed the Bench that the latter said he voted for Major Harris. The Court then adjourned for a quarter of an hour. On resuming. His Honor the Chief Justice said: We have come to the conclusion that Dovell was prevented from recording his vote by the conduct of Hattaway, and also in consequence of the conduct of the Deputy-Roturning Officer. The question, however, is whether he was prevented from recording his vote by the action of Hattaway. We think there was an intention to object to Dovell's vote on the part of certain, persons who believed his name was pat on the roll improperly, and that there was a penalty attached. They also knew that he would probably vote for Mr*. Buckland, and it was clear I that the intention to object to him was on that ' ground, and that Hattaway was acting with a number of persons who were outside the polling place, and that upon Dovell entering "it Hattaway followed him, and practically threatened that if he voted he would probably ba prosecuted. Substantially a threat was used with regard to his giving his vote. I do sot say that I am at all of opinion that Hattaway

was doing anything that he thought improper ; but he waß under the impression that Dovell, being wrongly on the roll, he ought to be prevented from recording his vote, and he did not hesitate to threaten him with prosecution if he voted. I think it clear that he was prevented by these threats from voting. It has been ably argued by Mr. Lusk that Dovell, being conscious of having committed an offence by being placed improperly on the roll, was prevented by that from carrying his vote into effect, but that made the impression on his mind stronger when Hattaway used the threat. The fact that he was conscious of an offence would make the impression stronger. The result was that Hattaway's vote was void, and must be disallowed to the respondent. This leaves him still a majority of one. The question remains what is to happen with regard to Dovell's vote ? We Chink it cannot be given to the petitioner, so as to make an equality of votes, but the effect is that a vote which, if given, might have placed the petitioner and respondeat on an equality, waß refused, and that being the case, are we to say that there was a due election ? We think not. We cannot say what the Returning Officer would do 1 we declare the election void. I caanot avoid commenting on the manner in which election was carried out at Otahuhu. It plainly was not in accordance with the Act. It was the duty of the Returning Officer to have informed the candidates that he would have separate ballot-boxes, and if he had they should be under his own control. The election, as conducted, was calculated to cause oonfusiea. The result is that six votes were not ticked, and it is impossible to say whether they were good or bad votes, and even on this ground it was impossible to say what the result of the election would be, but we rest our decision on the plain ground that a vote was prevented through intimidation, and it is unnecessary to give a ruling upon the other points. The recent decision in the Wakanui case was that a vote refused rendered the elec-

tion void. Mr. Justice Gillies said : I have nothing to add, but that I entirely concur in what has been stated by the Chief Justice. I consider that the principle applied in the Wakanui case fully applies here, inasmuch as the majority was so small. If there had been a majority of ten or twenty votes, there might have been no ground for disallowing the election, but where the majority was narrowed down to one, and that was obstructed, it Bhowed that the poll did not show the result of the election. It is probable that I feel even more strongly than the Chief Justice in regard to these six votes which were not ticked on the roll, and for which voting papers were given. It rendered it uncertain whether these votes were properly given or not, and it did not afford the candidates an opportunity of testing their validity, and the election must therefore be void. But it is not necessary to go into that question, and I have simply to say that I confirm the decision of the Chief Justice. Mr. Cotter asked for an order as to the costs, under section 27. Mr. Lusk addressed the CouTt, asking who ought to pay the costs? Part of the petition had not succeeded. The Chief Justice : I think you should not pay the costs of the impersonation case. Mr. Lusk: Part of the petition had been abandoned, and the respondent had been put to cost to bring witnesses to meet these allegations.

The Chief Justice : I think a fair order is that, although the petitioner might have reason for bringing these cases, he is not to have costs of so much of the case as Sutcliffe's. The petitioner is awarded the general costs of the petition, and to pay all the costs of the intimidation allegations except Hattaway'*, and that £2 2s costs be allowed for the clauses withdrawn. We will not allow costs for or against the Returning Officer. The Chief Justice then called the witness Hattaway, and read the «lause of the Act giving him power to make a statement as to why he should not be reported. The effect, if reported, would be to deprive him of any public office, or for giving his vote for three years. Mr. Lusk eaid Hattaway asked him to appear and make a statement for him. The Chief Justice : Our duty is imperative if cause is not shewn. Mr. Luok said their Honors had already said that they did not believe Hattaway had an intention of wrongdoing, although he had committed a technical offence, and he asked that he might be granted a certificate under the 19th clause of the Elections Petitions Act. —The application was granted. Mr. Lusk asked for a similar certificate for Mr. Harris. The Chief Justice: We have not called on Mr. Hrrris to Bhow cause. We have not decided that he was guilty of corrupt practices. The Court then rose.