UNDER WHICH COURT.

Dominion, Volume 2, Issue 442, 26 February 1909, Page 9

UNDER WHICH COURT.

LICENSING POLL INQUIRIES AND; MAGISTRATES. RECENT DECISIONS COMPARED. .■' NEED '.FOR REFORM ADVOCATED. : ; ■-:i .. [ByH. H. Ostleh.] ."•"■ /':.-. ;/:' ; ;- A;' :,■■■■■ • I. '•" ■:..' /■■.■. -. ,■■,-.; .'•The decision given on January 30' by the Bench of threo. Magistrates, presided over 'by Dr. M'Ariihur, .in tie' Hutt licensing edectiori inquiry shows- the urgent need for, drastic amendment in the provisions of the I/ibensin. no respect is the need forre'fbrm;.'so imperious 'as in the' direction, of, taking inquiries. as to disputed polls absolutely out of the hands.of benches of magi - trates, 'and placing them in .tho hands, of the' Supreme) Court. ; :/. -i: ; -V'/ '; ;:;•;•. ;.U !AN ANOMALY. ■'."- /';/ ; -, ; ■ v The.: ordinary jurisdiction of a magistrate extends w>.cases where the. sum involved or .in.;dispute", between-the parties- does not oeed.iilOO, and.no magistrate, in, fchb Do-. ;minibn-has jurisdiction ,te decido a ..case '': where -more:than '£200 is involved. Now. it was. ;sta'ted'.'that the value of the- goodwill of. the 'Mastertpn hotels, which was in. issue in tlie.'Masterton inquiry, was over £100,000. Rarely, if ever, has so large an amount been i.inyolyed in any/caso even before our Court -of Appeal.: Taking the value/of the goodwill or. each licensed house in tho'Hutt dis-l-triot-. at /-only". £2000, the amount involved j in.'that- case was' £30.000." , A bench of three. Lmagistrate's, , ' witli jurisdiction only up: to ..£100 : br£2oo, is- not..a suitable tribunal to ''decide." so.."large/and..important . .an/'issue, especially'.where, as in tliSs case,; th'e right of. appeal has .been carefullytaken away and tho : decision" of: a'majority of the bench made final-and conclusive. ,-..-. ■ '•; . . ■ . ■:':■ ;^v ; A : ;•'',;■.:' -■/The, Supreme Court commands. the respect; and cc-nfidenco of the v whole of ..the ''com'- , mußity. Its decisions are carefully recorded. lts : .aim; is. to;.be 'conaistent_ with, itself, so. that'.justice may' be' administered even-; , handedly and unswervingly The\ decisions jiof magistrates are not in genera! reported, and; there is not the same compelling power. ; to : ; conaistenoy. brought : to .'bear on them. : A ; comparison. of the decisions.delivered by Dr: M'Arthurih.tJie.Huttcase with that given in; the ; Masterton /caeej' and that given,: by pr.M'Arthur six ago in the:Newtown case, .seems te suggest that the" .responsibility.', placed-.upon these Courts'■has been greater than.: they couldbear. :' ■/'•. '' : >) ■γ-r ■ :; A.oomr of disciplinei, ; ■". -..■:■ ./Let us consider for a moment.tho general attitudp; adopted':by the Bench/ throughout the hearing, of the Hutt"petition., The.'ob■ject\yas .to inquire, into the. truth of the allegations made.by the petitioners. It will beroniembered that only three votes lay be- [ tween. License and No-Lioeiise. Now, Sectibn 1,30, Subsection 5j of the.Licensing Act gives the : , Court,; power, •on reasonable - notice..-. to the;other sidoy to 'allow ; the potitioners to allege and rely on/new, grounds for voiding, tho .poll which. havo. ; come - to „ theirs notice afterfilihgtho; petition:-.ltis;one of the first principles,;.of:-,justice: that. k>: long: ,as-.the pother-,side -lias; sufficient.'notice, notv,to- be; by;;s)irpnsb, ; any amendment/of tho I pleadings' necessary, to/raise the real'issues .bptween. the parties ..is allowed.. The prin.oiple has thus- been laid down by. ft great English judge:—" I know of no.kind'of,errbr pr,./mistake which, if .not fraudulent or intended ;tb 'overreach, a ...Court ought not to correct, if;it, can; be done without; inju stice. to . the .officT party j for the; Courts do not exist' for/the .sake; of discipline, .but for the : sake of-, deciding ;matters ;in controversy, and: 'amendments for this purpose oughtiiot to'be regarded, as /'matters vof .grace." ' Again, ..it ;,has ■■ b^ti: said;by,:the'Priyy.' Cpuiicil.';.• V-Even , , \if::!tHfl,,jstter,,'sjdejhiye.!'beeri'..p'ut/to''.'.oer^in' i expense and'delay, "yet if'they. can" be comr j pensated :for,;,that:.iri any ment ouglitito : be,'allowed : for"the purpose-of raisirig the/realyqueetiph'bWw'benihp'nar- | "ties:" case throe separate:appli- , ■ catabns'iver'e; made to.' t]ie' : Bench; by the petitionere amendments l in- the petition.' In'.-.the :first case it .was alleged ana proved that "alcphplic" liquor -Was taken- by .■ a\ publican iiito" two of tho booths. As to va .third'booth,'it was stated in evidence that anbWier publican'handed liquor in thrbugll : ,the window./ This irregularity had not beeh ! .alleged,' a 1 j -t™. evidence was objected' t0.,: Leave to add.:the allegatjpn'. was; asked for, but .re- : fused.:/Yet:tdieLpublican concerned was, in the 'Court, and/was; afterwards called, as a :)ritness ;: ;on.' another' point:■•• The" allegation could not, therefore, .have, possibly taken tho. • respondents,..by surprise.•';..'.ln;,'-'-the'.',second-case,;; the"petitioners ?had!. alleged number, of names of. voters, on the'rolirwho had-voted .without:being:ehtitkd..te vpte. ; Beforo'their -case-closed they asked leave to:add .two'more" liames-to.'tho'/list:/ ;Had this been'.allowed" it/would, have the /election, for the petitioners n:ere;then:only two behind, .but ;the ;leava ;^as v . refused.:;,-In;'-the.,-third 'cas'o; the'_ respondents itliomselves had in. a counter petition -. alleged *an irregularity .which' !: Uio potitiph'ers, hadnmot'heiird :'of ■. by 'which a voter was-:deprived of, a vote , . The ipe'titibhers asked' leave, to allege" and prove-.that irregularity," pointulg. out that as the' respondents : them6elyes. had aUeg4'd : 'it vthey ..must; have had ample'notice. of. it j'; but .'leave waß.again, refused.:. Tlie effect of such 'pro■bedure:must'bp totlcave the real question at ;issue--whetheri.;the:po]l was so ; conducted as to., faithfully; reflect; the opinion 'of.the dis-; trict—at". : ;-fche;- mercy jof technicality. The Court,:m-fact, becomes a.Court of Discipline rather/than a; Court of' Inquiry. ....-.'.',. .

l%£ ; ApMISSIBILITy :OF EVIDENCED-': ■"■ .'> ;The.Court's.ruiings'upn'tbe admiesibility' ■of/eyidence had: a similar tendency to ! con-' : done .irregularity. ■■': To take' one example: ihe petitioners alleged as one of the irreg■.larities. materially atfecting: the result of the poll that .a case;of liquor had, immediately prior'tp the/date of the poll, beensent over : ,to' : .Muritai:.;and'placed in,a house-not'niore .than .70 .yards fr.om -the polling/booth, and' •:that.,some' of the' nien'..working ; at Pencarrow quarry-were given;free,drinks there on poll-, uig.'day with' a';yiew;to influencing the poll. ; . jWrtnessesi-were subpoenaed to prove this, but. they■ faited; to iappear,- and".the I 'petitioners r,had L *'tp fcloso/their-case without giving any ■'.evidence .in support of this, allegation.- .When, theiricase'was/.cldsed the Bench delivered an intrerlpcutoi'y judgment, in which it specified the paragraphs of the petition which required an: ; As a'matter Of fact by-an over-' sight: it■:' stated that the allegation with re-ga-rd'to Muiritai would:have,to be:answered,: but/counsel for the petitioners, knowing this .to: be a: mistake, admitted that no evidence; had.-.'; been Called in support of it. "The respondents'.' witnesses ,were then /called,' and. a. publican .' was put into : the. box, who,:;-although ".they.--had not Bucceeded in proving it, , the petitioners were.informed, had himself .sent; the liquor :to Moritai.-" In cross-examination he' was asked whether he had not. r done so. Ho .was a truthful wit-, noss, and it. seemed as though the petitioners wore going : to prove the; allegation after all, but counsel for the respondents got nervous and objected to the question. A majority of the Court ! (Pr. M'Arthu'r, and Mr. -James;' Mr. Riddel!/ dissenting) - actually ruled that thequcstion was; inadmissible. Yet it is an elementary principle of law that a party in a Court is atfiberty to prove his c'astyout. of the mouths of his' adversary's witnesses; That principlo .has b«en; laid down again and again in'our Courts, and onlv last year was reiterated by Mr. Justice in a judgment in which the whole of the Court of Appeal concurred. . He said, "The case is ex(ictly analogous to the case'where nonsuit, has" been moved, and the case goes on, and in the case for the defendant evidence is adduced which cures the defect in the plaintiff's evidence.:, The circumstance that, in the case for: the plaintiff, there was not sufficient evidence.:to go to.the jury is at once cured if, in the course of the defendant's caso, such pvidehce is. forthcoming." The evidence was clearly admissible on another elementary : principle. , ; There were .a; groat number of'similar, .irregularities, alleged, for liquor had flowed freely throughout the Hutt on election day.' In cross-examinatipn any fact can be/elicited, , oven though not alleged, which rpnders probable any fact which is alleged. The. question was clearly relevant to tlio inquiry and admissible on that ground also. Both these crounda were urged before

the Bench without avail. Tho decision on this point had the effect of covering up this irregularity and shutting out a most important piece of evidence—so important that it alone, considering-the narrow margin, may well have been enough to turn.the election. A COMPARISON WITH THE MASTERTON. ELECTION.. ! Let us how come to our; comparison, with tho Masterton and Newtown judgments. The .fivo votes between License, and No-License at the Hutt had been reduced to two, or, at the most, threo. . Three cases were proved ,in which, through irregularities, three voters had been deprived of their right to get on tho rolls. One case was that of a lady who was on tho roll in her maiden namo. After marriage she filled in a!form which her husband posted to.'..the registrar. The registrar struck her off the roll in:her maiden nanuv but failed to insert her married name. : She did not discover she was not. on the roll until sho went to vote. The second case waf> that of a , lady who; filled in an onrolmerit form and handed it to a canvasser to forward ■to the registrar.. She stated that sho believed that this person was a Mr. C— —, who was canvassing for "The Trade. , . , The form was not sent on, or if it'was, she was , not enrolled, and did not discover this, until she wont'to vote. The third case was that of ' a married. lady who was' , erroneously told by .the. registrar that she must, before' he'could enrol her, obtain a form from the registrar of the district in which sho bad' previously been enrolled in her maiden name,..whereas no such, form was required by the':''Act; ' These irregularities were.ail proved, and, together with the votes already disallowed, .were more-than enough' to turn the result..,.lt. will be observed .that: all of those irregularities, were in connection with the preparation; of the rolls and not in. connection with the.poll: Thoy are dealt.with in Part 2 of tho Legislature. Adt,- whereas 'the irregularities,in connectionvwith the poll are. dealt with in Part ,3, ; Section 33; of- the Licensing Act enacts .that "the, Court shall determine whether, by reason of some irregularity, that in its. opinion materially, affected jthe result of.thepoll, the poll is void,' 1 ete. J Section 33 enacts that; "Every-: person' shall be -deemed, fo bo guilty of an irregularity ■who,/...;.'...'". does or omits; to; do any .'act I that/ if done or .omitted to be done at an I felebtoral. poll .would 'be an offence '-. under I'either'-Part' 2 or Part 3 of the Legislature Act." ' Nothing could' be plainer than that the Court is.- given'''jurisdiction , under the., above provision to. inquire into all irregularities.under Part 2/as. well as under' Part 3, i.e., irregularities in connection with the preparation of the rolls as. well/as' irregularities in connection -vrith the, .poll itself; , Yet the Court solemnly and almost :withßut hearing argument decided that it had no jurisdiction given it by to inquire into irregularities; under Part 2, i.e., in. the preparation of tho rolls, and therefore could not ..take these irregularities into eifect. in i considering whether the result of the poll had been materially affected. It will hardly be credited that one'short week before; in. the Mnsterton case (a ; "Trade" petition), irrbgularitiesunder' Part 2,had been alleged and i. proved, and that, after exhaustive argument, a Bench which included two members of the Hutt Court .(Dr.:M'Arthur and Mr..James) had solemnly decided that the Court/' had jurisdiction to,- inquire .into: irregularities' under Part 2, and nad actually stated an intention ; to report these irregularities to tho Minister ;with a.'view ;to punishing the guilty persons.'. It is:consoling to think that whichever' Magistrates seek a. precedent in the ■future they will'have.no hesitation in rejecting the 'Hutt dictum. For; bo it remembered that'tho Court has 'a dual function—(l>: To' void the;election, if materially affected by i irreeularities;../and,'(2) to report'the names of all persons guilty of such' irregularities, to ] the Minister with.a -/view to 'punishment. Take the cose of the canvasser of whomMt was alleged that, he failed to forward the enrolment form.•' • Such a failure is. a serious offence under Part 2 of the Legislature Act, the punishment being a fine tip to £20, or im-; prisonmenti'Up to: three mpisths (see Section 85).. ./By-thp; Hutt decision that canvasser if guilty, escapes.with-impunity; for.if ■ the •Court' "oannot inquire into the. irregularity it. cannot report on it. If-what was laid down as ■lawiby the ;Hutt-Court bein'fact law, :then I it, stands thus :-iCanvassors may-be 'employed in overy electorate in'tho Dominion, and'instructed to. find out'the views of persons whom they enrol, with a view to disfranchising the enemy.... Such a courso-of conduct, could do adopted with s'afity; ;fpr though tho law makes it an offencej the only macninery Si-ovided for its 'junishmont is a. Court which enies-'its.jurisdictionj ■-■;,"-'' i : "/.■'.

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