SATURDAY CLOSING CASE

Taupo Times, Volume III, Issue 129, 16 July 1954, Page 5

SATURDAY CLOSING CASE

f DEFENDANTS' COUNSEL SUBMITS THAT POLL WAS A NULLITY VALIDITY OF ELECTORS' ROLL QUESTIONED \ " \

Submissions for the defendants, and the prosecution 's reply have now been made in writing in the case in which four Taupo storekeepers, Messrs. R. S. Cassoii, S. Kilford, W. L. Haines and W. Davies are charged with failing to elose their shops at 1 p.m. on April 24, 1954, for the remainder of the day, such day being a Saturday and the statutory closing day in the Borough of Taupo. The decision of the Magistrate has not yet been given. In opening his case. for the defence, Mr H. C. Sproule submits that the "so-called poll which purported to determine that Saturday should be the statutory closing day in the Borough of Taupo was a nullity."

Preparation Of RqII Mr Sproule then goes on to recall that evidence was given (at the commencement of the case in the Magistrate's Court, Taupo, on May 28) by the Town Clerk, Mr S. Torepe, that the Taupo Town District became a Borough on October 1, '1953, and that he prepared the list of electors of the Town District early in 1953, probably in April, and that this list was not signed by the Chairman of the Town Board. Mr Sproule quotes Section 16 of the Town Boards Act 1908 as providing that the Clerk shall, during the month of July in which a general election of members is to be held, cause to be compiled! a list of all the electors thereof; and that such list, when signed by the Chairman and Clerk, shall be the electors roll for the district, and proceeds to submit that the wording of Sub-section (2) of the same Section shows that the duty to sign the list is mandatory and not merely directory.

Section 2 of the Local Elections and Polls Act 1953 is then quoted by Mr Sproule as defining "Roll" or "Roll of Electors" as any list or roll made in manner provided by law which contains the names of the persons entitled to vote. The prosecution had submitted that under Sections 65 and! 66 of the same Act it was now too late to question the validity of the poll, but Section 66, Mr Sproule submits, only deals with inquiries as to the conduct of an election or poll or the conduct of # c any candidate or other person thereat. "There Never Was A Poll" Mr Sproule then submits that an inquiry into the validity of the Roll is not an1 inquiry as to the conduct of an election or poll, and that there never was a poll, as there could not be a poll unless there are electors entitled to vote thereat and the right to vote depends not only on possession of the qualification but also on the entry of the possessor's name on the roll. The prosecution had relied on the provision of Subsection 10 of Section 20 of the Shops and Offices Act 1921-22 that gazetting, by the Minister, of the closing day determined by the poll, shall be conclusive evidence that the appointment of the closing day has been duly made according to the tenor of such notice.

Mr Sproule submits that the Minister's duties are purely administrative, that he has no discretion and must appoint the day deterr mined by the poll, and that that must mean the day determined as the result of a valid poll, and that the validity of the poll is for the Courts, not the Minister, to decide. Mr Sproule concludes: "I submit that the taking of a valid poll is a cotidition precedent to the effective exercise of the Minister's powers The taking of a poll may be irregular and yet the poll may not be invalid, but if my earlier submissions are weli founded there was, in this case, no poll at all."

Reply By Prosecution Mr J. McGlone, opening the prosecution's reply to Mr Sproule's submissions, claims that "even assuming, for the purposes of argument that the electoral roll was defective, the appointment of Saturday as the statutory closing day in the Borough of Taupo is Valid." He refers to Subsection 8 of Section 20 of the Shops and Offices Act which provides that every poll shall j be taken in manner provided by the Local Elections and Polls Act, and also to Sub-section 10, already referred to above, which provides that a copy of the Gazette containing the Minister's notice of the appointment of the' closing day shall be conclusive evidence fthat the appointment has been duly made according to the tenor of such notice.

Mr McGlone proceeds to note that both sub-sections refer to a poll taken under the authority of the Section, and that such a poll was taken. A poll is, submits Mr McGlone, "a counting of voters, voting at election" (Concise Oxford Dictionary), and a voting of electors and a counting of voters has taken place under the authority of the section. It is not, therefore, possible to claim that there was no poll taken under the section. Poll Was An Actual Poll There is, the submission con- j tinues, ;no evidence that the poll was taken otherwise than in the manner provided by the Loca\ Elections and Polls Act, particularly as there has been no petition for | inquiry under Section 66. Even as- | suming that there were defects in the roll, the Poll was an actual poll taken under the authority of Section 20 of the Shops and Offices Act.

The resuts of the Poll were duly notified to the Minister, and the Minister duly appointed the day determined as a result of such Poll as the statutory closing day. A copy of the Gazette containing the notice has been tendered in evidence, and the sub-section already quoted provides that the Gazette shall be conclusive evidence that the appointment has been dulyl made. The effect of the submissions on behalf of the defendants is to challenge the validity of the appointment of Saturday as the closing day, to attempt to use evidence that the roll was defective to challenge the fact that Saturday has been duly appointed. Such evidence Mr McGlone submits, cannot be admitted to up-set the conclusive evidence that Saturday has been duly appointed.

Mr McGlone closes his submissions in reply by quoting two cases, Tyson v. Bethwaite (28 N.Z.L.R. 638) and Houldsworth v. Lightfoot (1918 N.Z.L.R. 941), in which the Court held, in circumstances considered analogous to those of the present case, that the Gazette notice was conclusive evidence of the result of a poll, in the first. case; and in the second case that the Gazette notice was conclusive in j

stating that a majority of shop-J keepers had signed a requisition in regard to closing hours.