DISPUTED ELECTIONS

Dominion, Volume 8, Issue 2392, 23 February 1915, Page 6

DISPUTED ELECTIONS

— o—■ — TWO PETITIONS IN COURT HAWKE'S BAY & TAUIARUNUI SEATS ADDRESSES & EVIDENCE ALLEGED DUAL VOTING & IMPERSONATION

(From Our Special Reporter.)

Napier, February 22. The hearing of the petition of Hugh M'Lean Campbell against tho return of Robert M'Nab as member of Parliament for Hawke's Bay was commenced m the Napier Courthouse to-day, before the Chief Justice (Sir Robert Stout) and Mr. Justice Edwards. Some 140 witnesses have'Leen subpoenaed, and it is expected ihat the hearing will occupy a week. Mr. C. P. Skorrett, E.G., with Mr. H. B. Lusk and Mr. \V G. Wood, appeared for the. petitioner, and Sir John Findlay, K.C., with Mr. P. Levi, for the respondent. i

Mr. Campbell's Crounds, The chief allegations which the petitioner will endeavour to prove are as under numbers 1' and 2, being purely formal:— : - 3. That the Deputy Returning Officer ac tjie booth known as Number 1, situate in the Borough Council Chambers at Hastings, as the result of the preliminary count of the votes announced the result of the voting at such polling booth incorrectly; and gave to the petitioner about 97 votes which were in. fact cast for Mr. M'Nab. . i - 4. That the official count of the,said votes was subsequently made by the Returning Officer, who purported to ascertain tho total, number of votes received by each candidate, and on' December 9,'. 1914,' publicly declared the result of such count as follows:— n tt i -.r-r ' Votes polled. ! -lor Hugh M'Lean Campbell 4216 For Robert M'Nab 4225 Informal 53 Majority for Robert M'Nab 9.' 5. Petitioner is unaware whether or not in connection with the official count the Returning Officer held a scrutiny of the rolls as required, by Section 48 of the Legislature Amendment Act, 1910, and Sections 141, 142, and 143 of the Legislature Act, 1908, but if he did in fact hold such sorutiny the Returning Officer wholly failed to comply with tho provisions of Sections 142 and 143 of the last-mentioned .Act. Iti particular he did not in the cases where it appeared-from the scrutiny of the rolk that, tho same person had received a. ballot paper at; two or more polling places open tlie parcels of ballot papere used at the several polling paces at which such person appeared to have received any ballot paper and select therefrom the ballot, papers, on which tho number corresponding to' the name of such person appears and did not ■ disallow every vote appearing to have been given by means of the ballot papers so selected. Further; the Returning _ Officer did not oomply with Sub-section..l of Section 143 aforesaid nor with Sub-section 2 thereof by setting aside the aforesaid, ballot papers and sealing up the same in a separate parcel indorsed and Signed as required by such Sub-section.

G. Petitioner thereupon, pursuant to Statute, obtained' a recount of the votes. As a result of such recount, the Stipendiary Magistrate found that the public declaration by the Returning Officer of the result of the poll was incorrect ; and ordered the Returning Officer to give an amended public declaration. of the total number of votes received by each candidate as disclosed by such recount; and the said Robert M'Nab beinfj the candidate then found to have received the highest number, of votes was declared to Be elected. The amended public declaration given pursuant to such order was in substance aa follows: Vote 6 polled. ' For Hugh M'Lean Campbell 4177 For Robert M'Nab 4217 Informal votes • 100 . The majority thus found for Robert M'Nab wais 40. 7. The Stipendiary Magistratedid not make such recount as far as practicable in manner provided, in the case of the original count. The Stipendiary Magistrate did make o scrutiny of tho rolls as provided by Section 48 of the Legislature Amendment Act, 1910, and Sections 141, 142, and 143 of the Legislature Act, 1908; and found as the result of such scrutiny that at least 47 persons appeared from puch scrutiny to have received a/ballot paper.at. two or more polling 'places ;, but although requested so to do by the scrutineer of petitioner the Magistrate wholly refused and failed to comply-with the provisions of Sections 142 and 143 of the last-mentioned Act. In particular the Magistrate in 'the aforesaid , 47/ and other similar cases where it appeared from the scrutiny of the rolls that the same person had received a ballot paper at two or more polling plaws did not select, from tho parcels of ballot papers' used, at the several polling places at which 6Uch person appeared to have received any ballot paper, the ballot papers on which the number corresponding to the name of such person appears; and did not disallow every vote appearing to have been given by means of ■ the ballot papers so selected. Further, the Magistrate did not oomply with Sub-sect'on 1 of Section 143 aforesaid nor with Sub-section 2 thereof by setting aside the aforesaid ballot papers and sealing up the same as a separate parcel indorsed and. signed as required by such sub-section.

8. At the recount the ■Magistrate refused to consider whether the votes mentioned in paragraph 10 hereof and the Expeditionary votes mentioned in paragraph 18 hereof were informal and invalid votes and ought to be rejected and erroneously counted and erroneously' rejected as informal and invalid a number of votes as alleged in paragraphs 16 and 17 hereof. 9. Petitioner further says that the 'said Robert M'Nab obtained at the said poll an apparent and colourable majority over petitioner, whoreae in truth and in fact petitioner had a majority of votes of the electors wlio voted at tho 'election, and was duly elected as a member to 6erve in Parliament for the said electoral district. And further that in truth and in fact petitioner had a majority of votes of tlie electors who voted at the said election ■ and who were. at the time duly qualified to vote, and was duly elected as aforesaid. 10. A number of persons claimed to vote and did vote at the said election whose names were # not on the electoral roll of Hawke's Bay or on the certified copies of such roll in the hands of the several Returning Officers on tho poll for the election or supplied, to the several Returning Offiwrs pursuant to Section 24 of the Legislature Amendment Act, 1910, and such votes were accepted by the several Returning Officers although such persons were not qualified to vote at the election pursuant to tho provisions of Section.lS of the Legislature Amendment. Act, 1914, and although such persons did not make any declaration or a declaration in the form or in compliance with tho said Section 18 and that a large number of such persons were admitted to vote and did vote in favour of the _. said Robert M'Nab and that the said persons who so voted its aforesaid were disqualified and not entitled to vote; and their vatea should now b« «truiil< off this poll, • U. Xtat a laiis Jiumbsr of jiereoM

whose names appear on the electoral roll were not qualified to be on the roll for'' the district of Hawke's Bay and a number of such persons were admitted to vote and did vote in favour of the said Robert M'Nab although they were not qualified to be upon the roll or to vote at the election and their votes should now be struck off the poll. 12. A number cf Maoris as defined by the Legislature Act, 1908, were admitted to vote and did vote in favour of the said Robert M'Nab and 6uch Maoris' were not qualified to vote and their votes should now be struck off the poll.

13. Petitioner further says that persons personated and voted, as and'.for certain electors whose names appear on the roll but who did not themselves, vote and also for certain of such electorswho were thon dead and that the votes so recorded ought now to be struck off. the poll, 14. Petitioner further says that a number of electors received ballot papers and voted at more than one polling booth and that the votes so recorded ought now to be struck off the poll. 15: Petitioner further says that many persons who were disqualified to vote by reason of . legal incapacity to vote and being prohibited by law from voting were admitted to vote and did vote in favour of'the said Robert M'Nab, and petitioner says that the votes so recorded ought now to be struck off the poll. 16. Petitioner further says that in tlie count and recount of the votes a large number _of voting papers which were void and invalid wore counted upon the said count and recount in favour of the said Robert M'Nab and ought now to be struck off the poll. 17. Petitioner further, says that at the count and recount a large number of voting papers in his favour were improperly and contrary to law rejected and disallowed as informal or void ; and that all such votes should be added to the poll of the petitioner. 18. Petitioner further .says that on the count and recount a' large number of voting papers in favour of the said Robert M'Nab by members of an Expeditionary Force were improperly received and counted j although such yotes were void and informal as not being in compliance with the Expeditionary Forces Voting Act, 1914, for. divers reasons and,in particular because such voting papers were not in tho form prescribed .by the said . Act, many having no namo of an electoral district inserted therein, many having the name of some electoral district other than the Hawke's Bay Electoral District or the nameof some nonexistent electoral district inserted therein; and some having names of .the two candidates at the 'said election written in handwriting on such voting paper- and struck out and the words "Opposition Party" written in handwriting therein. And for the further reason that after each such voter had marked his voting paper he did not enclose it. in an envelope addressed to the Returning Officer of tho Electoral District of .Hawke's Bay; and seal such' envelope and deliver the same to the Electoral Officer under the lastmentioned Act. Such votes were not forwarded by the Chief Electoral Officer to the Returning Officer in the envelope so sealed and addressed.

Wherefore petitioner praye that' a scrutiny may be allowed of the. votes given and tendered at the said election and that it may be determined that the said Robert M'Nab was not duly elected or returned and that his election and return were and are wholly null and void and that petitioner the said Hugh M'Lean Campbell was duly elected and ouaht to have been returned. The Recriminatory Case. Mr. Skerrett, opening th<j case for Mr.. Campbell, said '.hat the petitioner claimed that he had been elected by a majority of votes cast at the election, the which allegation he hoped to prove as the outcome, of the scrutiny of votes which he demanded. JJr. M'Nab had set up what might be described as' a recriminatory i case, The inquiry commencedl with a' majority for Mr. M'Nab. On the question of which procedure the Court should follow, he argued 'that the Court might concern itself first with the recriminatory case for the respondent; Sir Robert Stout: What do you call the recriminatory case?

Mr. Skerrett: The recriminatory : is the allegation that the election is void. _ His Honour: Then you have no allegation that the : election is void?.

Mr. Skerrett :' No, your Honour. No specific allegation. His Honour: You don't rely on that? Mr. Skerrett: We claim that we are entitled to proceed to the scrutiny. His Honour: But if you get your scrutiny and fail in that, then you can't go back' and ask that the election he declared void.

Mr. Skerrett: Clearly, ycur Honour, wo are entitled only to the scrutiny and such remedy as the scrutiny may' afford. He argued also that the result of the rccrimmatory case, if it wore successful, must unavoidably be that the election oe declared invalid, and if it succeeded then the scrutiny might be unnecessary, and his submission was that the Court ought to call upon the respondent to proceed with lis recriminato.ry case before going on with the petitioner's case for the scrutiny.

Procedure Defined. Sir John Findlay, replying, said that if as the petitioner contended the petitioner had a majority of some 200' or 300 votes, and if this were established, then it would not be necessary for the respondent to proceed- with his recriminatory case. The test to be applied to the recriminatory case was as to whether the irregularities, assuming that they were proved, would have affecte.d the result of the election. He argued that the scrutiny should be considered first. Their Honours held' that the scrutiny should bo taken first, that tho recriminatory case (so called) _ was not, properly speaking, a recriminatory case at. all, and that at any rate the recriminatory case was such that it could not' be successful unless it were proved that the alleged irregularities might have affected the election. IJndor certain, circumstances, it might happen that even if ono man had a majority of 1000 votes the proof of irregularities would void the election. This was not a case of that sort.

Those Ghrlstlan Names. Mr. Skerrett then proceeded to open the'case for the petitioner. Ho first dealt with one class of about forty votes. Tho ballot paper was printed so — Campbell, Hugh M'Lean. M'Nab. Robert. . Tho forty voters had struck out tho names "Robert j\l'Nab" entirely, and also the names "Hugh M'Letfii." Apparently.the returning officer had made a mistake in having the Christian names piiuicd on the ballot papers. Tho direction , of tho Act was that OhriiiUan ii&ihch ought not to bo printed eu the ballot xtauei'a jmleas ..there

were two candidates with tho same surname. _ Therefore, he submitted, the Christian names were mere surplusage on tho ballot papers." The method of showing prcforenco for one candidate was by striking out tho name of the other candidate, and the test of the validity of a vote was whether it clearly indicated the intention of tho voter. Tho Act directed that no ballot paper should be rejected merely on the ground of some informality in the manner it had been dealt with by tho elector, so lone as the intention of tho elector was clearly indicated. The electors of whom ho was speaking had struck out the name of "Robert Al'Nab". 'entirely, showing clearly their intention of voting against him. They had also struck out the names Hugh M'Lean, leaving only tho name Campbell.: This he suggested might have been done in accordance with the directions on .the ballot paper that only tho name should be left untouched ;• or they might have struck out the names "Hugh M'Lean" supposing, in error, that they were the names of a third candidate. ■

Intention Must Be Clear, Sir John Findlay said he was willing to concede that the principle of the law was clearly enunciated in the statute that if it was clear that a voter, had unequivocally indicated his intention then his ballot, paper should be accepted as valid. Mr. - Skerrett, after citing many authorities, argued that the forty .voters had so unmistakably indicated their intention that their votes should be accented as valid votes for Mr. Campbell. He referred, also, to two other ballot papers on which there were in one case an oblique line, and in the other case a' horizontal Hue against the name of "Robert M'Nab." ; He would argue that the only assumption that can be made was that'this putting of a mark against a candidate's namo indicated a preference for the other candidate.

Sir Robert Stout pointed out that in municipal elections preference for'a candidate was indicated by a cross opposite ,the candidate's name.

Mr. Skerrett went on to discuss , the question of whether any mark made by the voter adjacent to the name of any. candidate on the ballot paper should be assumed to indicate preference or" rejection. He contended that our law was that voters were directed to signify disapproval of a candidate! by striking out his name and that therefore any mark against or opposite the name of .a oandidate must indicate the, voter's intention to reject that candidate. Formal Evidence. Tbeodlore Minet Lawlor, Registrar of Electors for the electoral district of Hawke's Bay, produced particulars of ballot papers which he had received sealed up from the returning officer. Robert Ashley Warre returning officer for, the district, gave other formal evidence about the/handling of the ballot papers after the election and at the official recount. By direction of the Court he searched the paokages of ballot papers from'the several booths' and produced therefrom those which were declared by the Magistrate to be informal, and some of which the petitioner Contended should be declared to be valid.

In the course of the search for informal papers he failed to find eight ballot papers from one booth, and one ballot paper from another, all declared to be informal by the Magistrate, but not all in question in the case. Samuel Ernest M'Carthy, Stipendiary Magistrate, said that; he presided at the recount of votes in the election for Hawke's Bay. He produced the return setting forth the Tesnlt of the recount. This close 3 the case for _the petitioner on this part of the petition.

Mr. Skerrett had produced* thirtyeight ballot papers: declared to be informal which he asked the Court to declare valid votes recorded for the petitioner. Principles of the Law. Sir John Findlay did not call. evidence. He said that he did not question or dispute the general'principles 'of argument of learned counsel for tho petitioner. He contended that thei mention of the fact that it was contrary to the law to have the Christian names of tho candidates printed on the ballot papers was quite irrelevant. It would be idle to suggest, that voters knowing the law struck out the Christian names in order to make the ballot; papor conform with the law. Ncr could the Court speculate or guess'as to the reasons for the striking out of the names •'Hugh M'Lean." The Coart was, in fact, left quite without evidence as to the reasons why the voters struck out the names "Hugh M'Lean." He would ask the Court to find that the Magistrate had been right in disallowing the votes, fof the reason that there was lio clear, evidence of the unequivocal intention of the voters. It was possible that , the persons voting had desired to make their ballot papers informal. ... Mr. Skerrett said that if a man wished to make his ballot paper invalid he would have struck out not . only the names "Hugh M'Lean," but the name "Campbell" as well. 1 The leaving of the surname ■ Campbell untouched was only explicable on the assumption that the voters wished to record votes in favour' of Mr. Campbell: The surname, he pointed- out again, was all that was required by the Act., One of the possible reasons which he suggested for the striking out in error of the names "Hugh M'Lean" was that the voters might 'have supposed that "Hugh M'Lean"'was the name of another candidate. ■. ' '

Sir Robert Stout: But surelv there is not a person'in Hawks'b Bay who is so unintelligent not to know the number of'candidates standing at the election? That is rating the-intelligence of Hawko's Bay very low. Do you say there were persons in Hawke's Bay who did not know there were only two' candidates? ■ Mr. Skerrett: .I don't know, your Honour I am assured that there were such porßons. ' • Their Honours announced that they would' take timo to consider the. question. '<

Papers Alleged to be Ambiguous. Mr. Skerrett tlicn proceeded to deal with ballot papers allowed, which he wished to have disallowed. The type of the class was a paper ,in wliich the voter had drawn a line under the name "Campbell, Hugh M'Lean." Sir Jolm Findlay said that the vote was assuredlvmeantto bo given against Mr. Campbell, and for Mr. M'Nab. It often happened that infirm voters with bad eyesight could not draw the line through the printed names, but so long as the intention was clear tho vote should be allowed. •

Mr. Skerrett argued that the ballot paper wasMearly ambiguous. The line did not infringe on,any part of either candidate's name, and the Court could not speculate as to the intention of tho votef if it was not dearly indicated. At least the intention was not sufficiently : clearly indicated for. the Court to allow the votes as valid. ■

Their Honours, reserved judgment. Alleged Dual Voting. Mr. Skerrett nest referred to oases of alleged double voting. Ho argued that the Act required the Returning Officer and tho Magistrate to disallow votes recorded by persons apparently guilty : of the offence of double voting and impersonation. This had not been done, and he would ask the Court to rule that these votes could'not , be. counted in Dr. M'Nab's total.

Edward James Clure, grocer's assistant, said he was on tho Hawke's Bay 'electoral roll, in tho number 1319: Ho went to vote at the District School at Hastings on tho morning of election day.. He was lindor the influence of liquor. After.he received his ballot paper the Returning Officer took' it from him. Ho did not mailt tho paper. He had no ulcar. rccolkctoi <u .wM geoutisd at

the booth. Later in tlie day he voted at Roche's Store. Henry Hodgers, sheepfarmer, of Mohaka, said he was 011 the roll in the number of 3316. He voted at Mohaka. His sou, now living at Wairoa, also was named Henry Hodgors. To Sir John Findlay: He did not vote at any other booth on election day.. John William Sargesson, deputy-re-turning officer at Mohaka, said that the last witness. Hodgers, voted in his booth. The point, was not pursued further. Counsel for the respondent admitted that Hodgers voted at llohaka. Larry Lloyd Ratcliffe, deputy returninn officer at Wairoa, said that the roll showed that someone voted in the name of Henry Hodgers in his booth. The name of Henry Hodgers was struck out by the poll clerk. Witness had no recollection of any man giving the name of Hodgers coming to the' Booth. Frank William Melhuish, deputy-re-turning officer at the Hastings District School, gave evidence regarding Clure's vote_. Clure was under the influence of liquor, and became obstreperous in the booth, finally going away without putting his ballot papers in the boxes; Witness followed Clure, and overtook him outside the booth. While he tried to smooth Clure down a man named .Casey abstracted the ballot papers from Clure's pocket, gave them to witness, and witness put them into the ballot boxes. ■ He did not look to see whether the papers .were marked. ' The Court, adjourned at 3.40 p.m. to allow the returning officer,' under the supervision of the Registrar of the Supreme Court, to examine the coun-ter-foils corresponding to tie. ballot papers alleged to have been deposited by persons alleged to have been guilty of dual voting or impersonation. The hearing of the case will bo resumed at 10.30 to-morrow (Tuesday).

: The inquiry was adjourned at 5 p.m fall 10 a^m.. to-morrow. •