THE WESTLAND SEAT.

Otago Witness, Issue 3757, 16 March 1926, Page 16

THE WESTLAND SEAT.

COURTS DECISION. MR SEDDON DECLARED ELECTED, GREIMOUTH, March 8. Tho Electoral Court, consisting of Mr Justice Stringer and Mr Justice Ostler, sat to-day to hear the petition of Mr James O'Brien, ex-member of Parliament, against the election of Mr T. Y. Seddon as member for Westland Mr W. J. Joyce appeared for the petitioner and J. W. Hannan and J. A. Murdoch for the respondent. Mr O‘Brien’9 objections were as follows: (a) That the names of some persons were illegally registered or illegally returned on the electoral rolL (b) That the names of a number of persons were illegally registered or illegally retained upon the roll. (c) That a number of votes validly recorded outside the electoral district were not allowed by the returning officer and not taken into account. . (dt That some voters received their ballot papers and recorded their votes outside and not within the polling booth. (e) That a number of voters entitled to vote were not permitted to do so, and were refused ballot papers. (f) That a number of valid votes received for petitioner were declared and counted as informal by the returning officer. (sr) That a number of votes, validly made, were disallowed by the returning office/, and their votes w’ere allowed. (h) That a number of ballot papers on which voters recorded their votes were marked or written on so that the identity of the voters could be ascertained. Such votes were allowed. (i) That voters entitled to vote only once recorded their votes at two or more booths. ij) That a number of ballot papers issued had not come into the hands of the returning officer at the time when, or before, the declaration of the poll was made. (k) That a number of votes were allowed to Mr Seddon by the returning officer which should have been declared informal. (l) T hat the secrecy of the ballot was not maintained. (nrd That votes were allowed to Mr beddon by the returning officer which were not recorded. (n) That the ballot papers used at the election, and on which votes had been recorded. were held at polling booths bv the deputy registrar for an unnecessarily lengthy period before being transmitted to the returning officer. At. the general election in November Mr Seddon was declared elected on the casting vote of the returning officer. Petitioner's case occupied all day. March 9.

Lengthy evidence was tendered, and counsel then quoted authorities regarding informal voting, Mr Joyce citing an English ruling that the intention of the voter was the deciding factor, while Mr Murdoch contended that the New Zealand law emphasised that a returning officer must see that the intention was clearly indicated. A number of votes, challenged respondent, were produced, and left with the bench, one being marked, “ Too Irish,” and another initialled A. J. D. One absentee paper was unsigned, another one bearing only a mark on the back over one of the candidate’s names. Another had one name partly struck out, and on a second the name was completely obliterated. Several had crosses, others one candidate’s name struck out and the cross beside it. Counsel stated that there was no decision that could be quoted against the crosses. , ~ , in March 10. The hearing wag concluded to-day. The court's decision, delivered at 2 p.m., after readjusting the disputed .votes, gave the figures as: T. E. Y. Seddon .. .. 4175 J. O’Brien 41G3 Majority for Seddon, 12. The court, therefore, held that Mr Seddon was elected. The final figures show Mr Seddon’s total to be reduced by two votes and Mr O’Brien’s total by 13 votes. Costs were allowed respondent on the highest scale, as for a £5Ol claim. All witnesses were indemnified against possible proceedings. Mr Justice Stringer, when the day’s proceedings began, indicated the court’s intention in regard to adjudicating on disputed votes. Petitioner’s main ground was that a large number of persons were illegally on the roll. Respondent set up a recriminatory plea on similar grounds. The court decided as follows: — A person’s absence from a district did not disqualify, except he were qualified and registered in another district. If a person travelled, although he could not be made to have a new residence, then he did not lose his original qualifications and could vote for a candidate in the district wherein lie was registered, notwithstanding his absence on the date of the election. It must be proved that he had actually resided in another district for three months before the closing of the roll. The presumption should be in favour of the validity of all votes cast. The onus of proof lay upon the challengers. Where it was proved the elector got a holiday, or was on a temporary visit with the intention of returning, though he had resided in another district for three months, or if there was no proof that lie did not resme in another district for three months before the roll closed, then, the court held, the onus of proof was not discharged. If the elector had been in another district for three months the onus of proof was not discharged if it could be shown he returned home. Where an elector had a permanent home in another electorate or a hut or tent, but worked in his district, he could claim he resided in this district. The court held it was proved a person had the right to be enrolled. The mode in which he got on a roll was a matter of procedure. Only if, at election time, a person had qualified, lie should be allowed to vote, but unqualified persons on the roll were not allowed to vote. Hie court could not uphold the contention that a cross opposite a name should be

treated as invalid. In the opinion of the very careful, capable and experienced returing officer for Westland such votes were valid. The court saw ,reason to disturb this decision and the samo principle applied in English cases. The mere fact that the voter applied for a voting paper was sufficient to indicate his intention to vote. The evidence in many respects was somewhat unsatisfactory. The court arrived at the conclusion that the six following persons in petitioner’s list were shown not to possess the proper qualifications to vote: Robert George Blake, Cedric Emil Heinz, Benjamin W. Sword, Janet Sword. Jeremiah M’Carthy and Mary Wren. In the case of John Lowry tho court thought his vote should be allowed and both parties agreed to the vote. Tho vote of Henry Samuel Holmes, a blind man, should also be allowed. The court thought Harold Maxwell Parker should have been allowed to vote. If it were found his vote was important the court would consider the question further. A number of electors were qualified when the roll closed although not when they applied for enrolment. These included: Agnes Henry, Edward Henry, Robert Henry, Mary Wat son Murray, and William Murray. Absentee voting was a privilege to voters which had been created by statute and must be exercised subject to the conditions laid down. If an elector, through cariessness or ignorance, failed to comply with the conditions the vote, necessarily, must bo regarded as invalid. In the case of Isabella M‘Gregor Brown, there was no declaration as required and the returning officer had no means, of comparing her signature and of determining the identity of the absentee. The court thought it had no alternative but to reject the vote, which it did. In the case of Mary Ann Ryan, the signature on the declaration did not correspond and the vote had been disallowed because of inability to establish identity and this was upheld by the court. The application of Sarah Caroline Wallace was duly signed, but was signed as S. Grieve, this being her married name. The returning officer had no means of comparing the signature and, therefore, rejected the vote. The court thought ho was right. Regarding two papers—one initialled “A J. D.,” and the other bearing the words “Too Irish”—the court held that there was no evidence to establish tho identity of the voters and dismissed the petitioner’s objection. Regarding the six votes known a s the “Buller votes,” these six were sent to the returning officer from Westport by the Buller returning officer. They were without declarations. The court thought the petitioner had failed to establish his claim. He had given no evidence that votes were sent in by the voters. There was no evidence that declarations were made, and the evidence on the subject was altogether too vague and ambiguous to justify the court gi anting any relief on that ground. With regard to delay at Kahikatca, it did not in any way affect the result. Coming to the recriminatory case of respondent, the court decided his objections had been established to the following votes:—Ellen Gamble, Caroline Huxford, Alfred Abraham Phfillips, G. A. W. Ryan, James Malcolm Cray, Joseph Fluety, and George Henry Tainui. The two latter were proved Maoris, and therefore not entitled to vote. The cases which failed to comply with the provisions for absent votes were: D’Arcv George Moxham and Catherine Sullivan. Those were cases where the absent voter complied with the regulations, but the deputy returning officer failed to com* plete the declarations. If the court’s judgment were unfettered it would he disposed to hold the votes were valid, but there was explicit authority in the LeeMacpherson case which laid down that the absence of a proper declaration was fatal. The court felt bound to conform t , that decision, and must hold the votes woie invalid. Some objections were made by respondent to the voting papers at booth VI. There was a case where a voter crossed the names of both candidates, although there was not a complete crossing out of one name. The court held that the vote was informal, as against the returning officer. Four papers held crosses against the name of candidate, the other name not being crossed out. Another paper had a cross against one name, and the other was crossed out. The court thought these proper. The vote of Mrs Lillias Harcourt would also be allowed, where a name had been removed from the roll through a mistake of the court. At 10.45 a.m. the court adjourned to inspect the contested voting papers that were allowed and disallowed an order to make a fresh return. When the court resumed at 2 p.m. the court’s decision was briefly announced by Mi Justice Stringer.