ELECTION VOID.

New Zealand Herald, Volume LII, Issue 15913, 10 May 1915, Page 10

ELECTION VOID.

BAY OF ISLANDS SEAT.

PETITIONERS SUCCEED.

ONE CHARGE PROVED.

EVIDENCE GIVEN FRANKLY,

The Bar of Islands Electoral Court, presided over by Mr. Justice Chapman and | Mr. Justice ' Hoskingr. delivered its re-; sewed decision on Saturday on the petition against the return of the member elect. Mr. Vernon Herbert Reed. The principal chaige. broadly speaking, was that the respondent offered, or promised, to procure a seat for Mr. Ceorgo Wilkinson in the Legislative Council in order to induce Mr. Wilkinson to procure, or endeavour to procure, the return of respondent to serve in the House of Repre'entatives. Their Honors held that the charge was proved, declared the election void, and disqualified .Mr. Reed lor one Year. ' The first question, paid Their Honors, was whether a seat in the Legislative Council was an office within the meaning of tub-section lb) of section 215 of the Legislature Act, 1908. They held that it wav

Not a Mechanical Agent. t>

"The contentions of the respondent," continued Their Honors, "are that with respect to the Legislative Council he

I merely passed on a message from Mr. Ma&sev—that lie was a mere mechanical agent in doing so, and that, this offer was not lik We do not think these contentions can be maintained. Wo are not satisfied that the mandate to Johnson can be split up. We regard it as substantially one proposal in the alternative. 'Hie object of it, which ever way it was accepted, was, to secure the respondent a clear run. But taking Mr. Johnson's mandate as comprising a message and an offer as suggested wo think that the respondent adopted the suggestion of the appointment to the Council. He tacks on to it his own alternative. He is prepared to accept the benefit he would derive from its acceptance. He adds his personal confirmatioivto the message, for he says: 'I told Johnson that he was to assure Wilkinson that he would get the scat if ho would accept it. That was the meaning of it.' If, instead of a seat in tho Council it was a sum of money that was offered, and. one were to translate the l message into terms of money, it j would, we think, he immediately apparent ! that the respondent «couid not plead he was a mere instrument to convey tho | message. By sending it on we consider ho I recognised it and evinced his readiness to ; take the advantage of it if accepted. It

cannot, we think, be described as sent on by him merely with the view of securing a, resident of the district, as a member of the Council. The tacking on of his alternative proposal allows that the object of "the offer was to remove the opposition of Mr. Wilkinson. We think the prohibition against direct or indirect acts to achieve bribery is sufficiently strong to repel such a plea.

| Employment of Mr. Johnson. I " But assuming the mandate to Mr. i Johnson to have been delivered to him in the form suggested, and that Mr. John- . son misunderstood or misconceived its ; terms we consider that the respondent's act in procuring Mr. Johnson to convey the proposal or the alternative proposal to Mr. Wilkinson constituted an employment of Mr. Johnson by the respondent to do some work for the purpose of promoting the respondent's election. According to the law as above stated, the respondent thereby made I Mr. Johnson his agent pro hac vice, and | would be responsible for Mr. Johnson's acts, although he exceeded his instructions. Mr. Johnson evidently did not consider \l himself a mere messenger. He spent two i hours in the endeavour to persuade Mr. | Wilkinson. Mr. Johnson had the interests lof the party strongly at heart, and wasjan influential man in the district. It was, no doubt, for these reasons that he was ! chosen as the medium of communication. We cannot suppose that it was imagined by the respondent that Mr. Johnson would merely deliver the proposals as a messenger might, and do no more. Mr. Johnson being, then, as we find, the responJ dent's agent, it is material to consider i what Mr. Johnson actually did. Both he and Mr. Wilkinson agree in saying that j the proposals were laid before Mr.' WilkinJ son as the respondent's proposal. On this evidence alone wo should be justified in finding that the proposals were made by the .respondent's agent, and that the respondent was bound' by the consequences of his agent's act. "Offer Not Uliuory." " To the argument that the respondent could not confer the seat, the answer is that it is clear that Mi'. Johnson understood from him that it would undoubtedly be given if Mr. Wilkinson retired. The respondent himself says that Mr. Wilkinson would get the seat if he would accept it. Mr. Johnson at that date believed there were grounds for saying so. Mr. Wilkinson says that the offer was nothing new to him. The respondent had as far back as 1913 suggested first Mr. Johnson and afterwards Mr. Wilkinson as suitable persons to appoint to the Council, because no resident north of Auckland had been on the Council since the death of Mr. Williams, 11 years before. Mr. Wilkinson had already been asked whether he was willing to accept the position. A distinct offer now conies from the sitting member, and the political influence which naturally may be presumed to be possessed by the respondent in that character was a guarantee that the offer was not illusory. "A Promise to Procure,"

"The evidence establishes that the respondent assured Mr. Johnson that the offer had a sufficient basis of certainty in it, so that on the strength of it Mr. Wilkinson could safely cetire, and not he disappointed. It was intended that this proposal should be as firm and certain ns the respondent's alternative promise to retire. While we regard these facts as sufficient to establish the offer of the office, we think that if they do not reach that mark they imply a promise to procure the office or to endeavour to procure it, as fully as did the latter in the Wellington Suburbs election (see Nwv Zealand Herud February 12, 1897). By the assurance of the seat given by the respondent there was at least implied the promise that he would act in favour of getting it for him

, Object of the Proposal. "It was argued that the offer was made before the candidature of Mr. Wilkinson was publicly announced. Wo do not think that material. Mr. Wilkinson's intention in April to become a candidate was known to the respondent. It was known to him that Mr. Wilkinson had submitted his name as a candidate to the meeting of delegates and that the meeting had selected him as such. It was because Mr. Wilkinson's candidature would continue unless arrangements could be made for his withdrawal that tho respondent exerted himself to sccuro the withdrawal. The object of the proposal was to induce Mr. WiiHnson to retire. If Mr. Wilkinson had retired, his retirement would have been an act done in pursuance of a plan to ensure the respondent's return, That would have been an endeavour. Similarly, if no retirement in point of fact took place, but the appointment was made and Mr. Wilkinson thereby rendered no longer oligiblo as a candidate, then the acceptance of the appointment, being in pursuance of the plan, would have been an endeavour, An offer of an office to induce a person.

to endeavour to secure a return is within the prohibition of subsection c. "With respect to the second charge, founded on the respondent's undertaking to resign at the end'of 12 months, we regard this as bat a, part and parcel of one offer and not as the subject of a distinct charge. Wo therefore pass over this charge as included in the first. Offer of Expenses Not Established.

"With regard to the charge made of offering Mr." Wilkinson his expenses if ho would retire, we do not consider this has been established. It is true Mr. Jacentho made the offer, but, in our opinion, he did so without any authority, express or implied, emanating from the respondent. Granting that the respondent could be held responsible for Mr. Jacentho's acts, if he had expressly or impliedly authorised him to go and see Mr. Wilkinson and do what ho could, we do not think it is established that tho respondent assented to Mr. Jacentho going to Mr. Wilkinson for any purpose whatever. Mr. Jacentho,- from being a supporter of Mr. Wilkinson, had changed on account of the hitter's views on the licensing question, in which Mr. Jacentho, by reason of his connection with a licensed j house, was interested. His idea of going to Mr. Wilkinson had for its basis this personal consideration, and was suggested apparently bv a commercial traveller who did not live" in the district, but took a strong interest in politics. We do not think that the evidence establishes more than that Mr. Jacentho was a mere volunteer. We consider further that it establishes that the respondent _ was not a party to Mr. Jacentho's mission either by express authority or actual knowledge or conscious recognition. We accept tho respondent's evidence on this point, and hold this charge disproved. "The result of the inquiry, therefore, is that we hold the first charge to be proved, and determine and certify that the election of the respondent to the House of Representatives at the poll taken on December 10, 1914. in respect of the Bay of Islands Electoral District was, and is, void. Honest Witnesses.

" Wo desire to say that all witnesses, including the respondent, gave their evidence in such a way as to commend themselves as witnesses of truth, according to their jccollectioiiß. We may add that there was no special conflict of evidence beyond such as we believe arose only from faded memory or misconception. The facts essential to our finding are indeed supplied by the evidence of the respondent himself, which, in our opinion, was given frankly and fully. It loft the impression on our minds that the candidate was not conscious that in what lie did he was committing what we have held to be a breach of tho law. The same remark applied to other witnesses who were engaged in the matter. We might say with regard to Mr. Jacentho that he is an old man, who stated that his memory was failing him. This was apparent, - for he could not re"collect, and somewhat departed (we believe in good faith) from certain statements which he was understood to have made - some few weeks before to a short* hand writer and a solicitor acting for the petitioners. He further disclosed at the trial the influences which led to his pro-* posal to Mr. Wilkinson—matters unknown to either patty until the trial. These are mattors to be considered in weighing his evidence on the third charge as against that of the respondent. Neither party; imputed any want of good faith to Air. Jacentho, and both parties joined in asking tho Court to grant him a certificate of indemnity. As we are of opinion that) he answered the questions put to him fully and faithfully to the best of his recollection, we grant a certificate accordingly. We also consider that the respondent and' Mr. Johnson are entitled to similar certificates on their applying for them. "With regard to the period for which the incapacities the respondent comes under by virtue of our determination ard to continue, we fix that at one year from' this date, the maximum under the Act) being three years. " As arranged at the conclusion of the hearing, we reserve for further Discussion, all questions of costs." At the hearing, Sir John Findlay, K.G., with him Mr. P. Levi and Mr. W. P. Endean, appeared for petitioners, and Mr. J. R. Reed, K.C., with him Mr. R. McVeagh, for the respondent. On the application of Mr. Reed, Mr. Johnson and respondent were granted' certificates of indemnity.