PETITION DISMISSED.

New Zealand Herald, Volume LX, Issue 18341, 6 March 1923, Page 9

PETITION DISMISSED.

K|J^rEDEN : ; . (EDEN ELECTION CASE. NO ILLEGAL PRACTICE. ; • C'* v •• v. |t me. PARR DULY elected. jji/.y' ___ •/ ] fef {JUDGMENT OF THE COURT. Ittk Y Judgment in the Eden election petition was delivered by Mr. Justice Hosking, on v$V ' .' behalf of Mr. Justice Stringer and him- " self, at the Supreme Court yesterday if?"', morning, when His Honor announced that the decision of the Court -was that the - K ch;»rges against the respondent, the Hon. < C. J. Parr!, would fail, whether viewed ki-l as corrupt practices or illegal practices. The determination of the Court was that . the respondent was duly elected. T , The petition, which was lodged by Mr. John Pool, of Mount Albert, on behalf of the Labour Party, alleged that Mr. Parr was, both by himself and his agent, guilty of corrupt practices, in that, on >Vemoer 30, 1922, at Glen Eden Hall, he treated certain ©lectors, by providing Ihern with refreshments in the form of strawberries and cream, for the purpose of influencing their votes, and for that pur- '' pose entered into an agreement to pay v for the strawberries and cream and engaged to pay for a person to wash up the dishes used. It was further alleged that he hired or contracted to hire the Glen ? Eden Hall for the purpose of giving reft freshment and entertainment. There was !' a similar allegation in respect of entertainment and refreshment at Avcndale Hall on November 30, 1922. Alternatively v?; it was alleged that the facts set out in the petition amounted to an illegal practice. The petition w:is heard before Mr. Justice Hosking and Mr. Justice Stringer at '4- . the Auckland Supreme Court on February 26 and 27 4 and it was then announced by T counsel for the petitioner that the allegations in respect of Avon dale had been abandoned, as wore the charges that a person had been employed to wash the crockery, and that cream had been purchased. ? Mr. A. G. Quartley and Mr. H. A. Anderson appeared for petitioner, and respondent was represented by Mr. C. P. Skerrett, K.C., and Mr. A. H. Johnstone. Respondent Not Personally Responsible. In giving judgment , yesterday the Court, after traversing the evidence relating to the event# which led up to the holding of the social at Glen Eden, said that, in its opinion, the evidence clearly established that the respondent and his wife were ignorant of the intention that the women's meeting, for which he had fixed the date, was to take the form of a gathering such as that described or until they arrived at the hall that there was to lie anything in the nature of an entertainment. • It was not shown that he knew anything beforehand of any participation of his committee in the arrangements, although, of course, on arrival at the hall he could but have assumed that thd committee must have raised no objection to the ladies using the occasion for the purpose they did. It was also completely established that the respondent himself was\never called on to pay, nor ever undertook to pay, nor ever did pay, any of the cost of the entertainment. ;?* " This disposed of the contention that the respondent, by remaining at and taking part in th« social, acquiesced, in and adopted the acts of those concerned m getting it up so as to make him personSi' ally responsible for any corrupt treating i involved, for, in order to entitle that conclusion to be drawn, it must be shown 'ft us a preliminary condition that the re- : «;■; spondent was awar<;» of the facts and of a , corrupt intention on the port of those concerned. " The evidence, they considered, clearly established that Mr. Parr was ignorant of these circumstances, so that he stood acquitted of all personal complicity in thp corrupt practice alleged." . ■ , .

Decision ,by the Ladies, v The judgment then proceeded to review the evidence and mentioned that the Court had no hesitation in accepting Mr. Shepherd's account of the meeting on November 15, when be said in effect "that after the dato of the meeting (November 25) had been decided upon " the ladies spoke on the question of having a social afternoon on the date fixed. Two or three of the committee also spoke. The matter was discussed in various aspects. It was mentioned that the committee could not undertake any , expense. . . . The matter was tilksd out, and the ladies were to take the show over. The men were to walk out. and ;? leave the ladies to run the afternoon. I said if the ladies take the thing over the whole thing is there,' and they can do what they like." " Mr. Levy in substance confirmed this, i added the Court. ' ;s i■; : - Coming to the developments at this meeting following the departure of Mr. Shepherd, the judgment states that the ladies then conferred apparently for an hour or more. A list was made of those who would supply tea and cakes, also chairs. v All these were to be provided gratia. Strawberries were by no means b matter of course. They were proposed, hut were objected to by some because, as Mrs. Routley puis it. " it meant a lot of dishes and spoons and such a lot of washing up." There was a majority for the strawberries, and it was decided to have them. ..

No Attempt to Influence Votes. Great stress was naturally; laid by the petitioner upon the form of the invitation and the circumstances connected with the printing of it as evidence that the ladies in' organising the social were but the instalments of the respondent's committee, added Their Honors, who, after traversing the evidence given at the hearing on these points, said they accepted the evidence of Mr. Shepherd and Mr. Levy as to the origin of the ticket invitation. The evidence a* to the alleged political atmosphere cf" lha meet-, ing of November 25. said Their .Honors, negatived the 1 suggestion ' that ; any reference was made to voting at the election or that »ny attempt 'was made to get votes at the meeting. Much stress was laid on the evidence with regard to the actual payment of the expenses,; but there was no evidence that the men'* committee did ?o. The total of the expenses was £6 3a- ' ' Ordering of the Strawberries. "It was contended that we ought to draw the conclusion that, the men's committee, or Levy himself, had really under, taken the liability for the expenses, .and that it was only after the social, when comment was mad« at the Avondale meeting, that they or he sought to disguise the fact," said Their Honors. " We do. not think this conclusion can reasonably be drawn. Very probable it is that Levy, although merely acting as an agent for the ladies' committee, by personally ordering the strawberries, did render himself in his private caparrt/y liable to pay-as between himself and the suppliers, but, like a surety, he would, if obliged to pay, have a right 'to be reimbursed by those for whom he gave the orders, and in that view it was natural for him tto feel '* somehow responsible to the Woods'. That, however, is quite a different position from that of a principal debtor solely responsible. His refusal to recognise account? rendered to him as the respondent's secretary or to yield 'to a demand for payment, which mieht be regarded as made in that capacity was consistent with the instructions he had received from 'the respondent at the outset, and was not an unwise precaution: but to come to a conclusion on behalf of the respondent from this attitude, that., he had in fact <con-tracted > on behalf of the respondent or the men a committee or for himself in his private capacity would be unwarrantable, especially on a quasicriminal charge. ~ "We are satisfied upon "the evidence which we have summarised that the ladies bona-fid® desired to have, and -took the etepe they did. in onto to bave a

! social ■?'_ afternoon '". instead of * a political | meeting occupied with tho delivery of a 1 speech; by the candidate." V' ■ ' Continuing,. Their Honors stated that tie evidence satisfied them that the ladies' action wes sjiontaneous and that they ; were not instruments . acting at the instance of the men's committee, but were acting on, their own initiative The evidence was more consonant with the iaea that they saw the opportunity presented by * tho promised visit of the respondent of having a pleasant gathering '? r >. themselves and the other women of the district, instead of the women having to occupy the afternoon in listening to a political speech. But for the card of invitation purporting to oome from therespondent's electoral committee, ' there would be but little substance in the charge that the music and strawberries were provided with the intention of influencing votes. Had the evidence established that the men's committee wer© "the real promoters of the entertainment, the inference that such was the intention might be drawn. It did not appear that the men's committee considered more was to be gained by a social than by a purely political meeting, but, without doubt, they did not suppose the social would be injurious to the respondent's cause. They certainly allowed the ladies to use the hall, but that the ladies ■were therebv appointed agents by no means followed. The Court was satisfied this did not mean they ooula do -what they liked on behalf of the committee. If one man said to another, "You can have that house and do what you like with it," that was not to appoint the other his agent. Something more in the circumstance would be requisite to give the license such an effect.

Origin of the Tickets. "In our opinion," added Their Honors, "the ladies were not subordinate agents of the committee, but independent actors in what they did. Gut while they assumed this position it was quite open," under the law of agency," for the respondent to have adopted their acts on his becoming aware of th 3 facts, but, as already held, that was not the case here. The parts taken by Mr. Shepherd and Mr. Levy were also put forward as indicative of complicity on the part, of the respondent's agents. But when the evidence is considered we cannot draw the inference suggested. "The particular circumstances already detailed in which the ticket originated prevents us from holding that it emanated from the men's committee. The terms of the ticket are not shown to have been known to any of the ladies' committee till after the tickets were sent out. The impression which might have been created by the statement on the ticket that the respondent's election committee invited the guest was corrected by Mr. Shepherd emphasising the real nature of the gathering at the outset of the proceedings. As to Mr. Shepherd's act in drafting the form of the ticket at Mr. Levy's request, the circumstances preclude the inference that his hastily-performed act was due to an intention on his part to influence the election. The evidence of the printer equally precludes us from holding that the addition of Mr. Levy's name as secretary Tjas similarly intended. The way in which Mr. Levy came to be connected with the tickets is fully accounted for by his typisto, Miss Cochran, having, independently of him, undertaken to send out the postcards which the ladies had resolved upon, and was, in our opinion, quite accidental. So far as the ladies were concerned the substitution of the ticket was unauthorised. "As regards the strawberries, we are satisfied that Mr. Levy's acts in ordering them were done for the ladies and not on behalf of the men's committee. We consider that the evidence is against the motion that his acts in this respect were other than those of a good nature and a willingness to oblige without reference to his position as secretary of . the men's committee-" The Law Regarding <" Treating." Dealing with Air. Shepherd's participation in the function, ■ the Court re marked that Mr. Shepherd had explained that he was ohaiiman of the Town Board. His speaking on 'that occasion was at the request of the chairwoman of the ladies' committee. There *, was no reason for doubting his evidence on this point. The general position of Mr. Lew and Mr. Shepherd at Glen Eden was described by the latter thus : " Levy and 1 were in a hundred and one things . in the district." Assuming that the men's committee or the ladies', or both acting together, were agent of the respondent in providing the music and strawberries, the question would still remain whether what took place at. . the hall on the afternoon of the day in question was treating according to the common law of- Parliament. v The Court then considered "the law on the matter and quoted a passage from Halsbury's Laws of England applicable to such a charge 'and cited by the Court in the Wairau election petition case. The statement so far as relevant is:—-" essence of the offence is that it should be corrupt. ? * Treating, in fact, is often innocent, and nrima facie it will be taken go to be. ; Where refreshments are a mere incident of a political meeting, there is no offence: hut if persons are gathered together merely to gratify their appetites and so j influence their votes, then it is corrupt treating. It is not necessarily corrupt, , however, to attract people to meetings by offering refreshments of a moderate kind. All such circumstances as the open doing of whatever' is done, the inclusion of persons who ace not voters in the invitation, and the absence of undeserving persons from the class benefited, will be token into consideration in favour of the party alleered to be ; guilty of corrupt treating. The time at which the act is done is also relevant consideration. A corrupt act is not less corrupt because it is done a long time before the election; but in deter." mining whether it is reasonable to conclude that an act is done with a view to influence votes, the element of time becomes exceedingly materia].'' Farther Review of Circumstances. After quoting further authorities, Their Honors said: Applying what has been laid down by the authorities to the present case, could lit have been successfully contended that if tea and caker alone had been handed round on the occasion in question that one could thence infer that the treating was corrupt? But because. a plate of strawberries is added it is said that the intention must be in ferred. ' A lavish supply, or a frequent supply, even of " tea.... and : cakes, might according to the circumstances, warrant the inference of corruption, but here un provision was on quite a modest scale and the instance was isolated ''The social was openly held, and, moreover, the cards were sent out from a list of the women of Glen Eden compiled by the postmistress, and they included not only the ladies' names, hut their lady friends, and so the invocation extended to ladies, whether electors or not. These are circumstances which the authorities show are to be taken into accouht with the rest of the circumstances in determining whether the treating was; corrupt." . < No Corrupt Intention. " Putting together all the facts which we have separately discussed, and asking ourselves whether they warrant the inference that the music and strawberries were corruptly provided by the respondent or his agents,, and (to use the language employed in the House of Lords case cited) ' looking broadly to the common sense of the thing,' we hold that corrupt intsntion on the part of the mens committee or of Mr. Shepherd and MrLevy in particular, or on the part, of the ladies, has not been proved. , * 4 It remains to deal with the charge that the payment made for the printing of the tickets and for the strawberries and flags were illegal practices. If the payments or contracts for payment for the other matters amounted to lllecal practices, it is by virtuo of section 220 of the Legislature Act, which prohibits any payment or contract for payment for the purpose of promoting or procuring the election for or in respect of, inter alia flags and in respect of any matter whatever except as authorised by the fifth schedule of the Act. As to ' flags,' the petition contains no allegation in respect of them, if the term- does reach ' flags when used as in the present case. There was no evidence of any contract for the hire of the hall. . The only other payment challenged by the petition and not abandoned is for the strawberries, and to be an illegal payment it must be • shown

not to "come within any of the matters authorised by the fifth schedule. "Hie expenses authorised by the schedule includes ' expenses in respect of miscellaneous matters not exceeding £25, so nevertheless that such expenditure is not in- | curred under the head in respect of any matter constituting an offence under this Act or in respect of any matter or thing payment for which is expressly prohibited [ by this Act.' " These provisions, added Their Honors, i were considered by the Court in the Stratford election petition. There the charge alleged was the providing of entertainment in the shape of music and pictures at the cinematograph theatre proceeding the candidate's address there. The Court held that payment for such an entertainment was not a corrupt practice. They held, however, it to be an illegal payment because it was not an expense in respect of miscellaneous matters, and ■was not" so returned in the candidate's return of expenses. The candidate himself made the payment out of his own pocket in that case, and knew all there was to be known about .it. It was a question whether these legalised miscellaneous expenses. extended to cpenses incurred neither by the candidate nor his agents but by unauthorised persons on their own initiative. The material point, however, on this petition was whether the strawberries were paid far by the respondent's agents (for they were certainly not paid for by him) as subsection (2) of section 213 voided the election if the elected candidate was reported to hav« been guilty by his agents of an illegal practice. The payment war. here shown to have been made by members of the ladies' committee. Their Honors had already discussed the evidence relevant to the origin of the ladies' committee, and •held to be proved that' they were not agents of the respondent. They had also held that the payment of the expenses was assumed by them at the outset, and was not an after-thought acted upon as a disguise to protect the respondent and his agents. The result, therefore, was that the charges against the respondent failed, whether viewed as corrupt practices or illegal practices. The Court's determination was that the respondent was duly elected. "It may be that we have discussed this matter with unnecessary elaboration in view of what some may consider the trivial nature of what took place," said Their Honors in conclusion. . "We have, however, been desirous of not weakening the electoral law by disposing of the matter in a summary fashion as if it were not necessary in every case to examine all the circumstances to see if the acts charged amounted to treating—that is, treating, which is corrupt. Our decision in 'this case is not to affirm that socials at which entertainment is provided during elections may not bring a candidate or his agents within the law. Each case must depend on its own circumstances. In any case during an election to tender socials to a candidate at which entertainment is provided is an unwise act, because it is calculated, as instanced by the present case, to render those concerned in it as well as an innocent candidate subject to suspicion and litigation." The Court ordered that costs be paid by the petitioner to the respondent, on the principle as between solicitor and client, and to be taxed by the registrar.

THE WESTERN MAORI PETITION. HEARING COMMENCES TO-DAY. [BY TELEGRAPH.OWN CORRESPONDENT. ] TAURANGA, Monday. Mr. C. P. Skerrett, K.C., and Mr. Levi, of Wellington, counsel for Kanapu Haerehuka in the Western Maori petition case, arrived here yesterday. Kanapu Haerehuka is here and'Ratana, who contested the seat, and a number of other Maoris from outside places are due to reach here to-night. It is stated that Mr. Myers, of Wellington, . will be counsel for Sir Maui Pomare. #