The Pamphlet Collection of Sir Robert Stout: Volume 64
The Intimidation Cases
The Intimidation Cases.
It was a notable rending of the heavens that justice might be done which occurred in the Election Petitions Court on Thursday last. The interval between then and now leaves no room for suggesting the existence of any lingering excitement (attributable to the somewhat startling nature of the Judges' deliverances) such as might affect a fair review of the case, although all time cannot efface the recollection of their demeanour. There sat the Chief, wearing the broad phlyacteries of his profession, and lifting up his eyes and thanking God he was not as other men are: conversant with the details of election contests; and yet the good man's voice trembled when:—discarding, in the first instance, the whole of Askew's evidence:—he suddenly declared he believed Askew's story of the cheque which Askew himself admitted the alleged drawer knew nothing at all about ! And, then the other:—the politician, who had, in the midst of an unfinished Parliamentary quarrel, been made a Judge:—who denounced old soldiers along with public-house loafers as an untrustworthy class:—the Judge who scorned to be controlled by English decisions:—what shall we say of him? This is the Judge who, in the end, said that the Petitioners' case had required no answer, but had not so ruled, thinking it was only right "to allow Mr Anderson to deny on oath the charges brought against him." It was clear from the first that Judge Gillies had not outlived the tender recollections of a hundred heated fights.
Passing from the Judges to their judgments, and taking briefly the cases as reviewed by them, it seemed hardly consistent with judicial impartiality for the Chief Justice to confess that even before the evidence was opened he had formed an impression from the particulars delivered by the Petitioners that the alleged charges of intimidation could not be supported. Here then we find a Judge admitting a preconceived idea of an important branch of the Petitioners' case, and one which, from views of both Judges upon the evidence of intimidation being brought forward, indicated a preconcerted ruling on the subject. We make no doubt that the opinion of the Judges expressed during the case and at its close with reference to these instances of intimidation is utterly wrong and decidedly opposed not only to the drift, but to the express language of English decisions (which with all respect to the superior wisdom of Mr Justice Gillies are likely to be considered as having some weight). We put aside, as indicative only of a want of ordinary perception, the remark of Judge Gillies that what would be considered "intimidation" in the old country would not be deemed intimidation here, and we proceed to deal with the opinion of the Chief Justice. He treated the statements made by Anderson as merely an "expression of opinion" to voters as to the probable result of voting against a side which (it was said) included the principal persons in the town. It is not often that a canvasser has so able an apologist, but it is begging the question to treat what happened as amounting to such a philosophical theme. The Judges had intimated as much before Anderson gave his evidence, and the coincidence was at least curious either that Anderson's testimony should with such fidelity confirm the Judges' ideas of what must have occurred, or that the Judges' views should so aptly anticipate Anderson's evidence. But what was the evidence itself ? It was ruled (where there was really no room for doubt) that Anderson was an "agent" for Mr Watt in the election, and it was abundantly proved that he acted as as one of Mr Watt's committee. Anderson, according to the evidence of W. H. Flyger, sent through him a message to G. Flyger, who was considered a possible gain to the Watt side, that the committee had "spotted him." This expression, which is most significant and important, is sworn to also by G. Flyger as used by Anderson in his subsequent interview on the subject, and is adopted and quoted by page ii the readiness and unanimity of the Judge Gillies in his decision. The message further expressed that the members of the Watt committee:—a specific number was mentioned by W. H. Flyger as stated by Anderson and denied in evidence by Anderson, but the number is immaterial, they were known to be numerous, and they claimed to be highly "influential":—would "withdraw their custom" from G. Flyger if he voted against Mr Watt. Mr E. Howe, who was said to have been present, and is pronounced to be "deaf," did not hear such a conversation, and could not even remember being present at the interview between Anderson and W. H. Flyger, although Anderson himself admits the interview, as also the subsequent meeting before the polling day with G. Flyger, who himself testified to the same effect and considered it "a threat." Now let the circumstances of this representation or "expression of opinion" be considered. Mr G. Flyger was in business, his brother being a salesman in his employ; he was rightly or wrongly considered by Anderson as a probable supporter of Mr Ballance's; it was admittedly Anderson's object if possible to detach his rote. In representing that the Watt Committee were an influential body, and had "spotted" Flyger, what possible object could Anderson have had but to influence Flyger's vote? And, if so, was such a representation "undue influence" or not? The Judges held it was only pointing out the probable and natural consequences of Flyger's acting one way or the other; but can such advice be considered as amounting to no more than a suggestion of what (to use an extraordinary phrase of the Chief Justice) "in the ordinary course of nature might be expected to take place," when it is conveyed along whith a statement that an influential body of men had "spotted" him, and that the consequence of his voting against Mr Watt would be the loss of business? Darwin has not yet discovered that "spotting" is in "the ordinary course of nature," and voters in the future will hardly (despite Sir James Prendergast's decision) think it natural to be so tatooed. Viewed by the experience of ordinary "human nature," which is probably the better guide, the intimation cannot be interpreted as other than what G. Flyger himself treated it:—a threat. Of course the same words would not amount to intimidation in every other set of circumstances. For instance, to a retired merchant, an annuitant, a bankrupt, or a judge they would be innocuous or absurd; but in the present case it would be hard to devise any sort of representation more craftily calculated to unduly influence the particular voter's mind. It may be that it did not succeed, but that is not the test; it may be that the Watt Committeemen did not withdraw their custom:—they may, from motives of policy, have seen that the fact of withdrawing custom would confirm the threat, more especially as this episode was talked of as soon almost as it occurred; it may bo that these "influential" people considered Anderson's representation effectual and consequently such as should be recognised and followed up; or, it may be that Anderson, in view of the effect upon a Bench susceptible to fine clothes, went specially and ostentatiously to Mr G. Flyger's for a suit in which to give his incorruptible evidence. The question as to whether the representation was "intimidation" or not, is only to be judged by a consideration of its immediate surroundings and the effect it was calculated to have on G. Flyger's vote. While the attempt may have been a lamen table failure (as all such attempts deserve to be) it may yet have been as successful as intended and consequently more closely hid from detection. The point is not affected by the actual results as at present developed, for these were and are capable of infinite variation, but the point must be decided strictly by the intention of the person making the representation as reflected from the immediate circumstances. Viewed in this way, we believe no unprejudiced mind can come to any conclusion but that such conduct as Anderson's is within the mischief page iii which the Act was intended to prevent.
One case is enough for the purpose, and relying on Flyger's case of attempted intimidation, it is unnecessary to refer in detail to Blick's, which was certainly weaker, although his evidence, as also that of Mrs Moult, was important in directly corroborating the evidence of the two Flygers. This leads us to remark upon the extra-ordinary manner in which the Judges dealt with the whole body of evidence. They treated each case separately; they weighed what the Flygers said against what Anderson said on the same subject; they weighed what Blick said against what Anderson said; they weighed what Mrs Moult said against what Anderson said; but it did not seem to occur to them to consider that while Anderson relapsed into negatives whenever the evidence on the other side approached the dangerous, there were several witnesses who substantially confirmed the charges he denied. In any ordinary case we believe the aggregation of proof would be the rule for deciding upon the evidence. We would not refer to the attempt made to damage Mrs Moult's evidence were it not that by passing it by we might be said to ignore an important incident. The girl, called apparently for the purpose of discrediting Mrs Moult, so far as her evidence went, stated that Mrs Moult had told her accurately enough what she (Mrs Moult) stated in evidence as the message given by Anderson in the shop about the Watt Committee going against Mr Moult in business if he did not vote for Watt; but the girl also deposed that Mrs Moult had asked her if she (the girl) would stick to what she (Mrs M) had heard:—the girl alleging that she had not heard Anderson say anything, and that (as far as she was aware) she never saw Anderson in the shop at all; although, as to that, Anderson himself swore he saw a girl "with her sleeves tucked up" passing through the shop when he was talking to Mrs Moult. It will be seen from this that the cor-roborative evidence of intimidation is really further confirmed and not weakened by the evidence on the Respondent's side.
Passing then from the cases upon intimidation, which we make no doubt would before English Judges, or Colonial Judges guided by decisions expressly made part of an Act, be held sufficient to support the petition on that ground alone, wo pass to the cases on Bribery.