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The Pamphlet Collection of Sir Robert Stout: Volume 77

Appendix VI. — The Magistrate's Decision at Bruce

Appendix VI.

The Magistrate's Decision at Bruce.

Yesterday morning, March 11, 1903, Mr G. Cruickshank, S.M., sat in the Chambers Room at the Supreme Court to give his decision in the Bruce licensing poll inquiry. Messrs F. R. Chapman. W. A. Sim, and D. Reid (instructed by Mr N. Paterson and Miss Benjamin) appeared in support of the petition to upset the election, and the Temperance party were represented by Messrs A. S. Adams and J. F. Woodhouse.

His Worship said he had intended to go to Milton to deliver his judgment, but, to suit the convenience of the parties, he had arranged to give it in Dunedin. He would, however, be passing through Milton on the following day, and would then enter up the records.

Mr Chapman: So that the actual entering up of the judgment will be in the district to-morrow?

His Worship: Yes. In a highly technical matter such as this, it is as well to comply with the regular procedure. My judgment is as follows:—

This is an inquiry held under section 48 of "The Regulation of Local Elections Act, 1876," to test the worth of the allegations in a petition of Bruce electors praying that the local option poll recently taken in the Bruce electorate may be declared void upon the ground of various irregularities in the conduct of the election. In considering the law and facts laid before me at this inquiry I have never been, without a deep sense of my responsibility in this matter, having before me the words of Mr Justice Barry when giving judgment in the Drogheda petition in 1874. He said: "That able and experienced judge, Baron Martin, in giving judgment, said, 'I adhere to what Mr Justice Wiles said at Lichfield, that a judge, to upset an election, ought to be satisfied beyond all doubt that an election is void, and that the return of a member is a serious matter, and is not to be lightly set aside; and the rule laid down by that eminent judge seems to be consonant with justice and common sense, and to be one of general application."

The law under which this petition is to be tried is contained in section 50 of the Regulation of Local Elections Act. Subsection page 34 2 says: "If upon any such inquiry it appears that the poll was open beyond or was not open within the hours hereby required, the whole election shall be void." And subsection 6 says: "If upon any such inquiry it appears that any other irregularity occurred in the proceedings which, in the opinion of the magistrate, tended to defeat the fairness of the election, the whole election shall be void."

All the allegations in the petition come under one or other of these two subsections—either under subsection 2, which is so strict about the opening and closing time, or subsection 6, which deals with things which tended to defeat the fairness of the election. I will deal with each class in turn, taking first the evidence given about the hours kept at the booths.

Time.—The provision as to the hours of polling is plain and mandatory. The court in this matter is somewhat like an automaton, and once it is clearly proved beyond all manner of doubt by admissions or thoroughly reliable evidence that the poll—that is, the operation or opportunity of voting—was closed at any one polling place in the district for any really appreciable length of time before or after the statutory hours, 9 to 6, the court has no option but by mere weight of the statutory machinery to declare the election void. This being the law, let us take the individual instances wherein evidence was led alleging want of punctuality. Without going into the evidence here, I will say shortly that I hold it is not proved that strict time was not kept at Milton or Akatore Beach. The first case which calls for inquiry is that of Manuka Creek. The deputy-returning officer for the electoral poll opened his box, according to his own story at 5.45 p.m. The deputy-returning officer for the licensing poll says that the electoral box was opened at 10 minutes to 6. He says they counted this together, and then the licensing box was opened and counted. As there were only 53 votes altogether, the counting would not take many minutes. Although the two officers, who are the only witnesses on this subject, differ in their account of the time, it is certain that giving the most favourable construction to the evidence for the defence, there must have been a premature closing of the booth. I hold, therefore, that strict time was not kept at Manuka Creek.

The next case which calls for serious consideration is that of the Berwick polling booth. Here the returning officer appointed to take the licensing poll left the booth altogether for what he calls "15 minutes at least." What is the effect of this? Clearly, it is a closing of the licensing poll for that period, as there can be no poll without a returning officer. The second question, however, arises: Did he leave a substitute to act for him? He says he left the electoral returning officer in charge. Section 112 of the Electoral Act permits the appointment of a substitute in case of illness or other sufficient cause. Now, here there was no appointment is writing; it is questionable if there was any verbal appointment of a substitute. The cause of absence was purely private business—viz., to vote in another electorate. This is not a "sufficient cause" page 35 within the meaning of the section. Again, the electoral officer cannot act as deputy-returning officer for the licensing poll, as the law is clear that there must be two deputies. The deputy-returning officer for the licensing poll is appointed for the "sole purpose of attending to the business of taking the licensing poll." Again, the deputy-returning officer, being in one of his functions, at least, an officer whose duties are judicial, he cannot by a common law delegate his functions to a substitute. If the statute is not complied with the substitute has no power. There was therefore at this polling booth for the licensing poll neither substitute nor returning officer either de facto or de jure, and the poll was thus closed for 15 minutes. This quarter of an hour is too long to be overlooked, and is enough to constitute a substantial breach of the act.

There remains the case of the Waitahuna Gully polling place. The evidence of both sides agrees in the main, and shows that the poll was definitely and intentionally closed by locking the door and opening the ballot boxes at about four minutes to 6. Within two or three minutes of such closing the door was unlocked to admit a belated voter, who claimed it was still not quite 6 o'clock. The vote was taken, and the door once more locked. There was thus a clear and distinct breach of the subsection. If this had been the only breach. I might have tried to waive it, using the discretion given by the maxim De minimis non curat lex.

There are thus three distinct breaches of the second subsection. By the common law of elections these instances of premature closing would not avoid the election unless the result was shown to be affected; but here I am acting under a much stricter law.

I will next take the cases coming under the sixth subsection—that is, instances of irregularities which tended to defeat the fairness of the election. By the common law an election was avoided if the irregularities proved were such as to affect the result of the election, but it is clear that a certain practice may be unfair in its tendency without, as a matter of fact, really affecting the result of the poll, and it is this class of practice which comes under the sixth subsection.

To take the individual irregularities:
1.There was evidence given of nine instances where one only of the two returning officers assisted old or illiterate voters without the presence of the scrutineers at both the electoral and licensing polls. This did not affect the fairness, as I cannot doubt the impartiality of or impute bias to the returning officers without positive proof.
2.The returning officer at Waitahuna refused to count four votes lawfully given, owing to the No-license scrutineer challenging the voters. As the voters answered all the statutory questions, it was his bounden duty to count these four votes. If this had happened prior to last year it would be unfair, but I think the recount permitted and held under last year's act was meant to cure this. page 36 kind of unfairness, and it has, in fact, done so. I hold, therefore, this does not tend to defeat the fairness of the election.
3.Considerable evidence was given of three voters who were denied the privilege of voting by the returning officer, but as in each instance either the identical name was not on the roll or someone of the same name had already voted, I fail to see how either party can claim these votes, and so there is no unfairness.
4.A man named Roy Pearson came into the Aaktore Beach booth near closing time, and stayed with the officers after the poll was closed, and was present when the votes were counted. As there were only 21 votes taken there all day, the papers might be carefully handled and scrutinised and the secrecy of the ballot endangered by the presence of an outsider not sworn to secrecy. It was a distinct breach of the act, being a violation of section 129, and was very improper. Still, I do not feel disposed to say that anything happened that gave either party an advantage in this instance, and I hold it did not defeat the fairness.
5.Evidence was given showing that for a great part of election day Messrs Scott-Allan, Blaikie, Weston, and a Salvation Army officer were inside the passage leading from the front door of the school house to the polling room at Kaitangata. One voter—M'Lel-land—says he was told to strike out the top line, but from M'Lel-land's tone in the box I should not think he was in any way influenced by these suggestions. As to the fairness of it, I do not suppose the presence of these gentlemen helped their cause in anyway; probably did it harm.
6.The next irregularity is the want of secrecy alleged in various instances. The fundamental principle of voting by ballot is the secrecy of the system. This is the spirit of the English Ballot Act, and also of all our Electoral Acts, whether for parliamentary, local body, or local option elections. In the Bolton case Mr Justice Mellor said: "There is no doubt that the Legislature, when it passed the Ballot Act, did intend that that should be a perfectly secret mode of voting as far as any instrumentality or machinery which it could provide could make it so." And the learned judge then went on to show that the Ballot Act visited the violation of secrecy by a penalty (in New Zealand it is punishable by imprisonment), but the act does not declare in any way that infringement of secrecy shall affect the seat. Another judge also said: "I am satisfied there is nothing in the act, however it may affect individuals, which can affect the seat." There is, therefore, nothing in the Electoral Acts whereby individual cases of want of secrecy in voting will affect an election. The only case of such is where, the want of secrecy is so wholesale that large numbers, sufficient to make it uncertain which way an election might have resulted, have, through fear of disclosure, refused to record their vote. There is no evidence here of any fear of the infringement of the secrecy of the ballot which kept voters away, such as was urged in the Down case (3 O'M. and H., 126), or in the Wellington election petition. The evidence shows that in 14 page 37 instances voters entered the inner compartment together or otherwise, and completed their voting in company. These couples were generally husband and wife, or parent and child, or two intimate friends. The Milburn polling booth had its inner compartment closed nearly all day, the voting being done on the back desks of the main room—not a large one. In one instance one lady says she did the actual striking out for her friend. In another case the wife of the deputy-returning officer at Milburn, during the short abesnce of her husband, seems to have suggested to an old voter how to exercise his privilege. I have to decide the questoin whether these breaches of the secrecy of the ballot tended to defeat the fairness of the election. As the majority was over 30, I do not think the proved cases affected the result. I think that in the majority of the cases the voters had made up their mind before entering, and neither side won nor lost votes by the practice. The law. however, expects each voter to vote alone and secretly, free from tuition, oversight, intimidation, suggestion, or parental or marital control. If the stronger-minded are to be allowed to vote in couples along with their weaker friends, how can such a procedure be fair, even if it does not affect the result? I think in this election its tendency is to defeat the fairness of the election.

It is with reluctance I uphold the prayer of the petition and declare the election void. I do so upon the ground of the poll being closed at Manuka Creek, Berwick, and Waitahuna Gully, and also the tendency of the practice of violating the secrecy of the ballot to defeat the fairness of the election. This has been my opinion since first hearing the evidence, but I have delayed the matter to make sure of my conclusions, in order to uphold, if possible, the verdict of the people; but I can come to no other decision. "If says Baron Pollock, "the language used by the Legislature is plain and clear, we have nothing to do with its policy or impolicy, its justice or its injustice, its being framed according to our views of right or the contrary—we have nothing to do but obey it and administer it as we find it."

I therefore declare the poll void.