HAWKE'S BAY PETITION

Dominion, Volume 8, Issue 2394, 25 February 1915, Page 6

HAWKE'S BAY PETITION

THOSE DECLARATIONS AND THEIR ALLEGED AMBIGUITY ARGUMENT OF COUNSEL (By Telegraph.—Special Reporter.) Napier, February 24. The hearing of : the petition of Hugh M'Lean Campbell against the return of Robert M'Nab as member of the House of Representatives for Hawke'e Bay was continued before the Chief Justice and Mr. Justice Edwards to-day. Mr. C. P. Skerret/t, K.C., with Mr. H. B. Lusk and Mr. W. 6. Wood, appeared for the petitioner, and Sir John Findlay, K.C.,.,with Mr. P. Levi, for the respondent. The Hodgers' Case. Before Mr. Skerrett • went on with his ease. Sir J. Findlay informed tlie Court tnat since the adjournment the previous evening ho had received information concerning the case of Hodgers, • and a witness was now ,in' court who would provo that Henry Hodgers, jun., had actually voted in tlie booth at the Public Library, Wairoa. The calling of this witness was not optwscd by Sir. Skoriett. . • Frederick Dimaore Tailor, who had

acted as scrutineer for Dr. M'Nab at | the Public Library, Wairoa, said he, had seen Hodgers in the booth on polling day, and Hodgers recorded a vote. Mr. Skorrett then suggested to tbe Court that tho law should be argued on the questions involved in that branch of the caeo relating to votes recorded under declaration. Before he proceeded to do. this he read tho following synopsis of tho facts upon which he would base bis contentions: 1. Ono hundred and three votes have purported to bo cast under Section 18 of tho Legislature Amendment Act, 1914. 2. There are 97 declaration forms, two declarants in one case and four in another having purported to join in one declaration. One voter made no declaration, but was given a ballot paper in pursuance of a letter procured. 3. Ninety-one votes were cast under declarations, which left paragraph 1 of the Declaration entirely as printed, no part of such paragraph being deleted. 4. A number of votes (portion_of the above votes) were cast under declarations in which' all or some of tho blanks left on the printed forms were not lined in. , , , 6. Sis votes were cast declarations which were regular in form, namely/ both 3—John Carter, John Brien, Moses Lamont, Mary Ann LloydBooth 16—Charles Gabb. Booth 11 George Fraser Gordon. 6. The vote.of Anuie Tcagle was cast on a declaration admittedly irregular. The vote of George Peebles was cast on a declaration not signed by him, but attested by the returning officer. . 7. The following votes were cast under declarations which require separate examination to determine the regularity:—John Allen M'Robyie, William Alfred Simpson, Thomas Gabb Adam, Ada Louisa Wotherspoon, James Robinson. , _ 8. The following-votes were cast under declarations which more than one voter signed,' tho declarations heing in the first person singular at Booth No. 9. The-following voters signed one declaration form, which is in the first person singular: George Smith, Ellen Gorden Webster: and at BootlrNo. i 2: Robert Stott. W. Lomas, Wi H. Pnnce, Hall Amunsden. The voters mentioned in Division 111 v of the particulars are claimed to •be voters who apart from the form of declaration were not .eligible to rote. .

As To Identity of Voters. 10. About two-thirds. of the votes cast undor declaration may be identified as the votes of the particular declarants in one or other of tiio following ways—(a) The declaration form bears a number, which is written in pencil. and in some case's specifies that it is the consecutive number of the counterfoil, and in other cases has no specification, but is presumably the consecutive number of the counterfoil. ■ (b) The declarations in the particular booth in question are numbered consecutively, and the corresponding ' counterfoil presumably bears' the corresponding number, (c) The number of the de-; claration on the 1911 roll or the 1914 roll, as the case may be, is placed wi the declaration form, and presumably on the corresponding counterfoil, .(d) The name of the voter is believed to be on the counterfoil: • 11. About one-third of the voteß_cast under the declarations cannot, it is believed, be identified, as there-are no marks on the counterfoil or the declaration connecting the declaration witb any . particular vote. . i 12: It is impossible without a scrutiny of the counterfoils, to state the precise number of votes referred to in Paragraphs 10. .and 11 respectively.

I. Why the Irregularities? * Sir -Robert -Stout: Why are there so many irregularities in these declarations? I thought instructions were issued to all returning officers. .* Mr. • Skerrett: ; The ; .difficulty. seems to have occurred:; in. this election because the instructions came too .late. _As Your Honour knows, the district is a wide one, and the instructions, from the chief electoral officer were s received after the deputy-returning _ officers had left for their various districts. His Honour: On what date was the election? Mr. Skerrett : On December 10. His Honour: But this Act was passed on October 8. 1 ■ The Corld!t|ons imperative. ' Mr. Skerrett. proceeded with his legal argument. The main principle of the law was that the roll was conclusive evidence of a person's qualification to vote. ' , No person whose name was not on the roll was qualified to vote. To this mle the recent amendment of the Act made an exception, by which certain persons whoso names were not on the roll were to be allowed to vote, under certain conditions. He woUd contend that the strict observance of these conditions was made imperative by the language of the Act. The necessity for the . strict observance of the conditions was that persons not qualified to vote might not be allowed to vote upon making a declaration, and the punishment for making a false declaration was the only sanction by which persona not qualified to vote Were prevented from applying for and: obtaining .voting papers. If'a privilege were_ granted to certain people under certain conditions those conditions must be strictlv adhered to. Substantially observed, Section 18 'of the Act . made it a condition precedent to the granting of. the. privilege that the applicant for a .voting paper should make a declaration! in the form prescribed. ' He submitted that this had not, been done, and he would ask the Court to disallow all the votes except six recorded under declaration. • .

He resumed his contention that the declaration made , was ambiguous, and of no effect; No declarant had com■mitted himself to any statement. The declaration was'asfollows: —"I amthe person whose name appears on the certified copy of the Hawse's Bay electoral roll as ——, and which name is ruled out thereon," or "I was enrolled as an elector of the Hawke's Bay electoral district, and. duly'voted at the last election for the said district, and _ my name does not appear on the certified copy of the roll for the present election." No declaration, he contended, could truthfully make both of these statements. Obviously, the intention of the Act was that he should make one or the other in the form of declaration as made by applicants. In tho cases before the Court, the declarants had made, neither statement. It was impossible for perjury to be assigned in respect of the making of any of these declarations. If the contrary view were acoeptcd that the declarants made both statements set out in the form, then every, one of them had com- ! mitted perjury. ' From this he coni tended'that the form of declaration was 1 .wholly ambiguous. Question of Identification. All these votes recorded under declaration could not be identified if they were to be disallowed. About twothirds, of the votes could be discovered with absolute certainty, and the Court had power-to reject any void vote that ivas in any way discoverable. He submitted that a scrutiny of the counterfoils should be made with the object of discovering the void votes to be disallowed. If the taking away of the void votes left Mr. M'Nab in a majority, clearly then the matter need go no further. 'If Mr. Campbell were in a majority, the matter might not be ended. ' If Mr. Campbell's majority, were a large one there could be no more trouble, but if it were a small majority, so small that the undiscoverablo void votes v might, if they could bo discovered. affect the result of the poll, then the Court must declare the election void. No Jurisdiction. Sir John ■ Find lay. contended ■ that Their Honours had no. iuriadictioa to deal,

with the declarations in any way. Hoargued that the declarations were cot' statutory declarations in the ordinary' Bouse of the term, and he disputed Mr. Skerrett's contention that no declarant was committed to any statement by th& form of declaration. 'Ho further argued that the Court could not use-any, means to identify votes recorded under declaration. The Act gave the turning officer the sole and final right to judge whether the declaration was sufficient to entitle the applicant to vote. Mr. Justice Edwards: But they are not judges of anything surely. Youdon't contend that these gentlemen, who apparently don't know very much about their business, are to judge on. such an important matter as the election'of a member of Parliament?" Sir John Findlay repeated his contention that the returning officer was tbe sole and final judge. Further, it .vaa not the duty of the deputy"return-. ;ng officers to put any numbers on declaration or counterfoil by which these votes cast under declarations could be identified. Sir ltobert Stout: I think it is most regrettable that this concession should have been granted in the form in which it was granted. It has left such a very, wide way. Mr. Skerrett. replied to Sir John Findlay's contention that the Court bad no authority to investigate votes recorded by' peoplo making declarations. They had jurisdiction under the general powers conferred by the statute, aud further the votes were identifiable in the very way contemplated by the Act. If the Court held that the votes should bei declared void, and hold also that it had no power to prooeed to identify the 103 votes,. then' the election must be annulled. A List of Twelve. ; After the luncheon adjournment: a list" of twelve names of persons, who had signed declarations, but which names were not on the 1911 roll was put in. ' ' : ' ■ A. L. D. Fraser, scrutineer for Mr. Campbell, gave evidence regarding the case of Daisy Aileen Molesworth White, not on the above' list. He had called on her three'or four days before the .1911 • election, and she was very ill— too ill to vote. She had voted this year under declaration. T. M. Lawlor, registrar of electors, said the, name; of Margaret 'Agnes White was not on. the 1911 roll. Illegal Enrolment. Mr. Skerrett addressed himself to tha question of the illegal enrolment of voters. There were five persons about whom the parties were agreed that they were Maoris within tbe meaning of our law, and that they voted. With, regard to the list of names alleged to be illegally on the roll he would abandon his claim that their votes should be disallowed. On this question generally, his submission was that the provisions o£ the Act. applied to names .illegally placed or illegally retained on the roll without jurisdiction or colour of authority, and did not refer to cases of error or mistake made by the statutory, compilers of the roll. He did not contend ' that the Election Court should consider objections to all names which might be challenged. He argued, on the contrary, that the Election Court would not undertake the work-bi revising the roll. The roll must, be accepted as conclusive evidence unless as he had pointed out the names were put on tbe roll or retained on the roll "without jurisdiction or colour of "authority." The Court, he ;contended, could not consider the case of persons retained on the roll, even if they lived beyond the boundaries of the Hawke's Bay electoral district. It had happened that' people resident near the boundaries were on the wrong roll. Into those cases, be submitted, the Court could not inquire.'

Plea of Wider Slgnlfioanoe. Sir John Findlay disputed Mr. Starrett's proposition that the roll was conclusive, and must.not be revised ; by the. Court. He submitted that the term "illegally" as,applied to the placing' or retaining of names on the roll must. ■be construed in the ordinary sense, and not in the narrowj restricted sense' which learned counsel for petitioner had. asked the. Court to. put upon it. .It. would be amazing if the Court, in view ' of the ch'anges in the law in recent years, would refuse to revise the roll. Really, what Mr. Skerrett ought to do; was to declare the'fight off on this point. It was strongly urged % on> behalf of respondent that the' Court should give to the word- ' 'illegally" its l ordinary wide signification. _ The Chief Justice' said that the point raised by Mr.; Skerrett was the- most far-reaching; yet: raised. _It • parontly the main point in the Tau--marunui potition, and it would require most careful consideration. 1 .

The Maori Votes. ; Mr. Skerrett next spoke of the Maori' votes which petitioner asked to have disallowed. His submission was ttat i the roll was not conclusive, in giving a right to a Maori to vote if enrolled.. The roll was not conclusive so far as Maoris were, ooncerned, because of the special provision of Section 37, Subr section 1 of the Legislature' Acß, 1908: "Maoris shall be qualified only to vote at elections of Maori members as provided by Part 4of the Act." A Maori: was not entitled to be registered, andeven if registered, had no right ,to vote. > .... ' Sir John Findlay did not accept Mr., Skerrett's argument, but he Baid that the point was immaterial. "There aro only five altogether," he said, "and two of them are for us. It is quite immaterial." ■ . The Chief Justice: Then there is only, one between you. Mr. Skerrett: Oh, you never know how; they will go, Your Honour. • Mr. Skerrett then went on with thai attack on the Expeditionary Force votes. The evidence ' would be, 'he said, the mere production of the ballot papers. .The objection made to the votes was that the ballot' papers were informal. The Chief. Justice: Are they all th< same? Mr. Skerrett: I am not sure that I can inform Your Honour on that point.

His Honour: Because I. see there if only 22 between you. There were lOC for you and 122 for the others, and foui informal. That is the return. _n , Mr. Skerrett said that on the ballot paper'were the words, simply, "Govera» nient," "Opposition," "Labour," and voters had to register votes for . the party only. Later, after the nominations were out,;other Expeditionary Force; voters were able to vote for their proper candidates. At the head of the ballot papers were printed tho words, In the electoral district of." His contention. wels that on tho b&llot pspor til© nsm® of the electoral district should have been written, and his information was that in substantially all the ballot papers tha name of the,district was not filled in. The papers wore produced and examined. There were S3 without the name of the electoral district filled in. six had the wrong district filled in, 104 were correct, and four were informal An admission was entered that' Mr.' Campbell was the Government, candidate' and Dr. M'Nab the Opposition and Labour candidate. Sir John Findlay contended that a' voter need not fill in the name of tha district. He was required to put tha papers into an envelope addressed to the district wherein he resided. This address. covered the whole form. Ha urged that all the Expeditionary Foroe votes were valid, with the exception o! the four informal votes. The jiidgmfent of the Court was that, the papers with the name of the district left blank were valid because of the address on tho envelope. The Court would reserve -the. judgment on the' sis cases of papers with tho wrong names filled in. The Court rose at 4.45 p.ni. v _to sit acflin at 10 a.m. to-morrow, '