Blundell v Vardon

[1907] HCA 75

4 C.L.K.]

OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

REGINALD POLE BLUNDELL . . .

Petitioner ;

AND

JOSEPH

VARDON............................................................Respondent.

STATE OF SOUTH AUSTRALIA ELECTION PETITION.

IN THE COURT OF DISPUTED RETURNS.

Commonwealth Electoral Acts (1902-5), secs. 110, 111, 118 (a), 119, (ft), (c), (<), 134, 147, 158, (ft), (d), 161 (a), 199, 200—Schedule—Forms—Statutory Rules 1906, No. IS—Electoral Regulations 22, 23, 25, 28—Ordering recount after destruction of ballot-payers—Election—Method of voting, mandatory or directory—Writing and murks on ballot-papers—Identification of voter—Defective authentication of May

ballot-payers—Official defaidt—Avoidance of election—Amendment of petition.

The fact that, in an election for the Federal Senate the returning officer for the State directed, under sec. 161 (a) of the Commonwealth Electoral Acts 1902-5, a recount of all the ballot-papers before the declaration of the poll, does not debar the Court of Disputed Returns from ordering a further recount under the control of the Court.

A case for a recount having been otherwise established, the fact that the ballot-papers of one of the electoral divisions of the Slate had been accidentally destroyed is not sufficient to deprive the petitioner of his right to a recount. An ordinary ballot-paper which has been initialled on the front, instead of the hack, will not be thereby invalidated, if it appears that the paper was so folded that the presiding officer could see his initials without disclosure of the voting for candidates. An absentee ballot-paper which has been initialled on the front, instead of the back, is not thereby invalidated, as the counterfoil is sufficient for authentication ; but absentee or postal ballot-papers which have not been initialled at all are invalid. In considering the validity of ballot-papers marked by voters not strictly in accordance with the Act, the Court will give effect to the intention of the voter wherever it is clearly indicated by the necessary crosses, except where the Act has expressly

H. C. of A. declared the vote void ; and redundant marks upon the ballot-paper will not

1907.                  invalidate the vote unless the marks are such that the voter can, not might possibly, be identified. Cirencester Case, 4 O’M. & H., 194; Day's Election

Blundell

Cases, 155, applied.

Marks made by the voter upon the ballot-paper, which

v.

there has been an undoubted attempt to obliterate, will not be treated as an

Vardon.

indication of uncertainty on the part of the voter.

It is mandatory that the occupation and address of the witness should be

added to the signature of the witness to postal ballot-papers.

In estimating the effect of official defaults upon the result of an election, the Court will consider the incidence among the candidates of all authentic votes that were invalidated by official defaults, so far as this can be done without infringing the secrecy of the ballot.

At an election for the Senate for the State of Soutli Australia, held on 12th December 1906, there were seven candidates for three seats. The Commonwealth returning officer for the State declared the result of the poll as follows :—Josiah Symon, 33,597; William Russell, 31,796; Joseph Vardon, 31,489 ; Dugald Augustus Crosby, 31,455; Reginald Pole Blundell, 31,366; David Charles­ ton, 30,608; Thomas Playford, 13,035; and 2,747 ballot-papers were injected as informal.

This result was obtained by a recount held, at the request of Joseph Vardon, by the Divisional returning officers under sec, 161 (a) of the Electoral Acts 1902-5, the result at the first count having been :—Symon, 33;604 ; Russell, 31,793 ; Crosby, 31,525; Vardon, 31,509; Blundell, 31,337 ; Charleston, 30,615; Playford, 12,938.

On the result of the second count Symon, Russell, and Vardon were declared to have been duly elected, Crosby having meantime died. Blundell thereupon filed a petition praying, (a) that the whole of the ballot-papers be reviewed and recounted, (b) that it be declared that the respondent Vardon was not duly elected, (c) that Crosby or the petitioner be declared elected, or in the alter­ native (cl) that the election of Senators for the State be declared void.

William Russell did not file any appearance nor did he appear

personally or by counsel upon the hearing.

The petition contained the following statements (inter alia):— “(7). That voters were so unduly delayed by the presiding

officers that they were unable to vote.

4 C.L.ll.

OF AUSTRALIA.

“(9). That at Meningie a streamer was displayed at the H. C.

entrance of the polling booth containing the following words : ‘Vote for Charleston, Symon and Vardon’—and that such advertisement was likely to have affected the result of the election.

“(10). That certain ballot-papers were not initialled by the presiding officers as directed by sec. 134 of the Electoral Acts 1902-5.

“(11). That ballot-papers were improperly rejected by the

counting officers as informal.

“ (12). That many of such alleged informalities were occasioned by misleading directions as to the method of voting displayed in the compartments of the polling booths.

“(13). That ballot-papers which were informal, and (15) several postal ballot-papers, were improperly admitted and counted by the counting: officers.

“(14). That certain counterfoils of postal votes were not pre­ served and were not available for the inspection of the scrutineers on the occasion of the recount as provided by sec. 119.

“(16). That during the scrutiny ballot-papers were left exposed during the night in such a way, and (17) that ballot-papers were sent through the post in so careless a manner, that they were liable to be tampered with.

“(18). That the number of votes ascertained to have been obtained by the various candidates, together with the informal ballot-papers, did not correspond in numerous cases with the number of ballot-papers accounted for under sec. 134 of the said Acts.

“(19). That the divergencies between the votes for the various candidates on the first count and on the recount were so numerous and considerable as to show that the number of votes cast for the various candidates has not been ascertained with any degree of certainty.”

The petition coming before Barton J.,

Vaughan, for the petitioner, asked leave to strike out the names of Symon and Russell from the petition and to amend

VOL. IV.

94

prayer (cl) of the petition so as to read “ that the election of Senators for the said State be declared void as regards the alleged election of the respondent Joseph Vardon.” No amendment of the separate paragraphs in the petition is necessary, as each is available against individual candidates: Linev. Warren (1).

Cleland, for Synion, supported the motion.

Piper, for the respondent.

I object to the amendment and the

striking out of names. If the election was void, it was void as to all the candidates, and the consequences should be equally

indicted on them.

The allegations of the petition in pais. 7, 9.

10, 12, 14, 16, 17 obviously refer to all the candidates, and are not severable ; further, if proved, they may have cumulative effect and unseat all the returned candidates. Line v. Warren (1) was purely a recount application, not one for voiding an election, and was from the first directed against one candidate only. This petition is a public proceeding, and cannot be limited by private arrangements. If the amendment is allowed, these paragraphs must be wholly struck out.

Barton J. I grant leave to strike out the names of Symon and Russell from the petition, and to make the desired amend­ ment in the prayer. Pars. 9, 16 and 17 seem to be the only ones obviously affecting the validity of the whole election, and even these I do not feel bound to strike out before taking evidence upon them. The parties having agreed to abide by the result of the recount, if ordered, the paragraphs in question are allowed to remain for the present in the petition.*

Vaughan. I ask that a recount under the control of the Court be ordered: Electoral Acts 1902-5, sec. 197. The Court should grant a recount where it is apparent that there is reasonable ground for believing that a substantial mistake has been made. The first count and the departmental recount carried out under

(l) 14 Q.B.D., 548.result of a recount, the question of the

* As the proceedings upon the peti­

exclusion or limitation of these para­

tion were in the end determined by the

graphs was not finally decided.

(a) has nothing o the nature of a judicial recount; it is, or should properly be, merely an arithmetical recount, without any assumption of power to revise the discretion exercised by the Returning Officers in ad­ mitting or rejecting votes. In some of the counting centres that power of revision was improperly assumed ; this wrongful exer­ cise of revision may have given Vai'don his majority over Crosby, and is, therefore, good ground for ordering a proper revision in a judicial recount. Also, a great many irregularities are apparent in the conduct of the election and the result of the departmental recount, such as the fact that in 66 counting centres out of 95 the arithmetical returns did not tally, and also the facts alleged in paragraphs 10, 14, and 17 of the petition. Both the formal votes and the informal, which were never properly the subject of a departmental recount, should be submitted to the judicial recount: Cameron v. Fyslt (1). The Court is entitled to assume that even more irregularities may have occurred than the petitioner is able to prove; and the Court is enabled by the Electoral Arts 1902-5, to exercise its discretion in the widest possible manner, especially in the direction of ordering a recount. [Here the Divisional Returning Officers were called as witnesses, and the fact was disclosed that all the ballot-papers for the Division of Angas, covering over 9,000 votes, had been accident­ ally destroyed while in charge of the officer for that Division. The total votes cast in the State were over 70,000.]

sec. 161 (a) showed considerable variations, and it is practically R- ('- 0F A- Returning Officer for the State under sec. 161

certain that still further errors will be disclosed by a judicial

recount, in which a more strict review of the decisions of the

The loss of the ballot-papers at Angas is no bar to the petitioner’s claim for a recount; he is entitled to accept the figures for that Division as correct, and a strict recount of all the other available papers will attain approximate accuracy. The effect of the Angas results can only be a matter for the Court to speculate upon after the recount, for which the petitioner has shown a substantial claim. Further, secondary evidence can be

(1) 1 C.L.R., 314.

given to show that a number of votes in Angas Divisiou were

rendered invalid by official default.

Piper. In view of this destruction of a large proportion of the voting-papers, arithmetical accuracy cannot possibly result from a recount, and the whole purpose of such a proceeding is therefore done away with. If, as the petitioner alleges, the returns in all the Divisions were erroneous, it is reasonably likely that the returns in Angas were inaccurate to the disadvantage of respondent. The destruction or loss of 10 or 100 papers might be negligible; but the destruction of 9,000 papers renders a recount futile, because the sole test in granting it is whether there is any probability of a recount showing how the electors of the State voted. A return must be arithmetically correct; therefore the petitioner cannot succeed, since the uncertainty of the Angas votes excludes inathe- metical accuracy. Similarly the election cannot be declared void, because it cannot be “ proved,” under sec. 200, that official errors really affected the result of the election, as this proof is precluded by the loss of the Angas votes.

Vaughan in reply. Under sec. 200 the question always is whether the result of the election would or might have been affected by the official mistakes, i.e., whether these could reason­ ably’' be taken to have affected the result; this need not be proved to demonstration. The probability that the Angas votes would vary as much as the total variations in the other six Divisions is very slight.

Barton J.

When the votes were at the respondent Yardon's

instance counted again before the declaration of poll (Act 1905, sec. 161 (a) ) variations were found between the original count and the second count in 66 counting centres out of 95. The ballot-papers rejected at the first count as informal were in some cases reviewed, but in the majority of cases that was not done.

The position of a petitioner applying to the Court of Disputed Returns may be thus described. It is on him to prove the allegations of the petition so far as they are not admitted. As to all things in connection with the ballot, except matters of open

conduct, it is manifestly difficult, if not impossible, for him to prove a case for a recount, except by a judicial examination of the ballot-papers. He is, in such circumstances, almost, if not entirely confined to this means of proving that enough valid votes to give him a seat or to entitle him to have been declared elected, have been cast in his favour. The order for a recount is thus the means adopted by the Court to open the sources of proof to him, by enabling him to adduce the only, or almost the only, attainable evidence. Ordinarily, therefore, the Court will not be astute to resist a recount, especially as that course cannot prejudice a respondent where the election has been efficiently and accurately conducted, except so far as he may be in a sense prejudiced by the doing of justice. The fact that in the present case the votes were counted a second time under sec. 101 (a) before the declaration of the poll does not, in my opinion, stand in the petitioner’s way, even supposing what I may call the mechanical conduct of that process to have been correct. The recount by this Court is a totally different matter. It is a recourse to judicial methods for the purpose largely of ascertaining whether votes have been allowed or rejected according to the law of elections; that is to say, for the determination of <|uestionsof law as applic­ able to the polling, by what Parliament deems to be the best constituted authority. The effort to remove mistakes, mainly arithmetical, solely by a computation conducted by the officers who made the first calculation, can by no means be considered a bar to the interposition of the Court for the determination of disputed questions of law arising out of decisions of these officers, complained of as grievances by candidates who may not have been really defeated.

I should not have hesitated to grant a recount in the present case on the evidence and arguments adduced but for a remark­ able occurrence deposed to by one of the electoral officers. Mr. Croft, the Returning Officer for the Division of Angas, was unable to produce the ballot-papers for his Division, though the returns of the voting are all available. The Court has to con­ sider the effect of this unfortunate loss on the application for a recount. All the ballot-papers of the other six Divisions of this •State are forthcoming and available.

After careful consideration—the case being, so far as I know wholly without precedent—I have come to the conclusion that the recount ought to be granted, notwithstanding the destruction of the Angas papers. The petitioner comes to the Court to upset

a count which was prima facie correct.

It must stand, so far as

he does not impeach it with success. The means of doing this have disappeared so far as the Angas votes, nearly one-eiglitli of those recorded, are concerned. It does not follow that lie is to be deprived of the remaining means of proof because of the mis­ fortune which has occurred. His chance of proving his case may or may not be lessened. The Court cannot possibly form an opinion on that question. But it is clear that the Angas votes must be accepted as they stand on the return, and to my mind equally clear that as to the remainder of the votes the recount ought to be had, and the matter is not affected—this being a Senate election—by the fact that the votes which cannot be challenged constitute the whole of those polled for one of the seven Divisions which each return one member to the House of Representatives. There may be an exception to the acceptance of all the Angas votes. It is alleged for the petitioner that lie can prove that some of the papers were improperly rejected. It may possibly be that lie will be entitled to give specific secondary evidence of that fact in such form as may secure the reception of those votes. On that I will not pronounce any opinion at this stage, as the proper time for its discussion will be when the case comes before me again after the recount.

Mutatis mutandis, the order will be in the form adopted in Melbourne recently in the case of Kennedy v. Palmer; the Deputy-Marshal will conduct the recount and will report to me as to the assistance which should be granted him. The recount is a grant of the prayer paragraph (a), and

The recount therefore will be granted. and report to the Court; to secure him such assistance as may lie necessary; to allow the parties to appoint enumerators, if desired, who may attend as well as the legal representatives; and to fix a date for the continuance of this hearing. All questions of costs are reserved meantime.

4 C.L.R.J

OF AUSTRALIA.

therefore includes the whole of the ballot-papers, including those H- L.

hitherto held informal.

The Deputy-Marshal reported to the Court that 828 votes of v

doubtful formality, in several classes, had been reserved for the

determination of the Court.

Apart from these, the admitted M3i ;2.im7e’i3 '

figures were:—Symon, 33,531 ; Russell, 31,733 ; Vardon, 31,413 ; Crosby, 31,383; Blundell, 31,302 ; Charleston, 30,531; Playford, 12,997.

One class consisted of some ordinary ballot-papers, and some “ absent ” voting papers, which were initialled by the presiding officer on the front instead of on the back.

Piper. These votes are good: Chanter v. Blackwood (1). The initials are so placed on the ordinary ballot-papers that they can be folded in such a way that the initials are visible without showing the names of the candidates: Sec. 134. The Court will not scrutinize the creases on the papers to see if they were actually so folded, but may presume, in the absence of evidence to the contrary, that the papers were duly put into the box after the officer was shown the initials. The “ absent ” voting papers are good : Regulations 22 (c), 23, Commonwealth Electoral Regulations, Statutory Rules, 1906, No. 78. With regard to the absentee votes, the requirement for initialling is intended to secure the authenticity of the voting paper, which purpose is amply secured by the fact that the counterfoil attached to the absentee paper, and not torn off until it reaches the counting centre, bears the presiding officer’s signature ; and the initials on the inside are a sufficient second check when counting the votes. The provisions of the .system for authenticity and secrecy of voting are thus preserved.

Vaughan. The initials are in the centre of the top of these ordinary ballot-papers, so that the initials would not show if the corner was turned back. Therefore Chanter v. Blackwood (2) does not apply to these; nor can that case possibly apply to absentee voting papers, which are gummed down with the initials

(1) 1 C.L.R., 121, at pp. 123-4.

(2) 1 C.L.R., 121.

HIGH COURT

[1907

inside. Those ballot-papers, as to which sec. 147, or Regulation 25 (1), have not been observed, must be rejected: the test is whether they were actually shown to the presiding officer with the initials visible.

Barton J. I hold those ordinary ballot-papers to be good votes

as to which I find that, as a matter of fact, they were so folded that the initials were visible without disclosing the votes. I hold the absentee voting papers good votes. The signature of the presid­ ing officer on the counterfoil is before him when handed in by the voter, and also before the Divisional Returning Officer when he tears off the counterfoil; and when the gummed paper is torn open to count the votes, the presiding officer’s initials are there; its authenticity is therefore complete.

Another class comprised absentee and postal ballot-papers not

initialled at all.

Vaughan. These are good votes; the signature of the presid­ ing officer on the counterfoil is equivalent to his initials, and the counterfoil is part of the “ballot-paper:” Electoral Act 1902, sec. 119 (h); Regulation 22 (e); Ackers v. Howard (1). The initials may have been on the ragged parts torn off the edges of these papers.

Piper. When the counterfoil is detached, before counting, the initials are necessary to authenticate the votes when being counted : Electoral Act 1905,secs. 33, 111 ; Regulation 25. There is no identity between the counterfoil and the ballot-paper.

Barton J. These ballot-papers must be rejected; initialling is a condition precedent to the validity of every ballot-paper. The suggestion that the initials may have been torn off with the margin is too speculative, and is quite unsupported by evidence.

Another class had been marked by the voters with three crosses, not in the squares on the left hand, but in the blank

(1) 16 Q.B.D., 739.

4 C.L.K.J

OF AUSTRALIA.

space on the right hand side of the paper and opposite the names of the candidates ; there were no other marks. Some others had three crosses, witli one or two in squares, and the other two or one out on the right.

Vaughan. Votes were allowed in Chanter v. Blackwood (1) in which the crosses were outside squares but opposite the names of candidates. The position where the cross should be placed is not mandatory. The electors have properly indicated their intention, without any ambiguity, and the intention is especially clear since the votes are given for the proper number of candidates. The Court can view these votes very liberally : Electoral Acts 1902-5, •secs. 197 (2), 199.

Piper. Sec. 197 (2) refers, not to the admission of ballot- papers, but to the consequences following upon their rejection. These papers are informal: Chanter v. Blackwood (2) does not apply; that case was decided upon the fact that the cross was in a rectangular space between lines ; the present crosses are out in the open, whereas they should be put in the squares provided. In sec. 158 (b) the words “ the square ” governing election of Senators are more strict than the words “ a square ” for election of Representatives in sec. 158 (c). This looseness about the voting for Representatives is proved by secs. 163,164: “ Cross set oppo­ site the name of the candidate;” cf. sec. 160 for Senators. Chanter v. Blackwood (3) did not proceed upon the obiter dictum that the placing of the cross in the square was directory, but upon the finding that the cross actually was in “ a square ; ” and the legislature has since altered the form of the paper to a less liberal form by the 1905 Act and Regulations 22 (c), (/), 23.

Barton J. I do not withdraw the opinion expressed by me in Chanter v. Blackivood (3). Without relying too much on the “ Directions ” to electors, I must hold these votes good, as the intention of the voter is clear. I prefer in this class of questions to rely on the opinions expressed in the Cirencester Case (4): the question is, has the voter “ clearly indicated the person for whom

(1) 1C.L.R., 121, at p. 127.(4) 4 O’M. A H., 194, at pp. 196-7 ;

(2) 1 C.L.R., 39, 121.Day’s Elec. Cas., 155.

(3) 1 C.L.R., 39.

HIGH COURT

[1907

he wished or intended to vote ? We ought to interpret the Ballot Act liberally, and, subject to other objections, to give effect to any mark on the face of the paper which in our opinion clearly indicates the intention of the voter . . . whether made with pen and ink, pencil, or even an indentation made on the paper, and whether on the right or the left hand of the candidate’s name or elsewhere within his compartment on the voting paper.”

Another class of votes, having crosses in three squares, and one or more crosses or marks on the right hand side opposite the names thus voted for, were allowed, His Honor considering that the marks afforded no clue for identification of the voter, ami introduced no uncertainty, but, on the contrary, tended to emphasize the voter’s intention.

Another class contained crosses in three squares, and marks in other squares. Those on which the extra marks were unobliter­ ated were rejected on the ground of ambiguity : Cameron v. Fysh (1). Others on which there appeared a successful oblitera­ tion, or a partial but undoubted attempt at obliteration of the extra marks, were admitted on the authority of Cirencester Cane (2) where it was said :—“ Of course if it is upon the face of the ballot-paper left in doubt whether the man intended to vote for one candidate or the other, the weight of the objection that the vote is uncertain, is obvious, for the simple reason that one candidate has just as much right to claim the vote as the other, and so it ought not to be counted for either, and the Statute so enacts.....................We have done our best

to discover whether, although obscured by the blots, blurs, or other marks, there existed positive indications on the part of tin’ voter of an intention to vote, without a thought of leaving behind a trace to enable him to be identified. We have not been astute to give way to objections of an unsubstantial character, but we have endeavoured to intei’pret the language of the legislature in the spirit in which the enactments were passed, supporting every vote which we have found to be clearly indicated, except in a few cases in which the language of the Act expressly declared them void.”

(1) 1 C.L.R., 314, at p. 316.

(2) 4 O’M. & H., 194, at p. 197.

Another class of votes were all marked in three squares, but only with diagonal lines, or with a cross in some squares and an incomplete mark in other squares, or with quite undecipherable signs. It was argued that these were valid because the intention to vote was clear, as three and only three candidates were thus indicated. But the votes were disallowed, following Chanter v. Blackwood (1), on the ground that the making of a cross was mandatory.

Some postal ballot-papers were held invalid because the “ title ” of the witness, as directed by the counterfoil, or his “occupation and place of living,” as directed by sec. 118 («), had not been added to the witness’s signature. Omission of this necessary precaution for authentication could not be cured by the words of sec. 118 (a) that its requirements need only be “substantially observed.”

A class of ordinary voting papers were rejected because, although they were properly marked with crosses in three squares, there were three crosses in the blank space on the right of the paper, opposite names of candidates who did not correspond with the candidates who were voted for in the squares.

Some papers had three crosses in squares, and the word “yes” written on top of each of the crosses, or opposite one or all of the crosses in the open space on the right hand side of the paper. These were allowed, the intention being clear, and there being no evidence that these marks were intended to lead, or would prob­ ably lead, to the identification of the voter within the meaning of sec. 158 (d) on the authority of Cirencester Case (2) where it was said :—“ It was argued before us that if the marks were such as might lead to the identification of the voter, that would be quite sufficient to vitiate and render void the vote. That is not our opinion. It is not a question whether by some accident or other a challenged mark might possibly lead to the identification of the voter . . . We think we ought to adhere to the language of the Statute itself, which says that the mark must be a mark by which the voter can (not might possibly ) be identified : whether the mark is such, is a matter of fact.”

Some absentee and postal ballot-papers bore the initials or

(1) 1 C.L.R., 39, at p. 5‘2.

(2) 4 O'M. k H., 194, at pp. 197-S, per Hawkvia J.

names of voters. His Honor having found, by comparison with the signatures of the voters on the counterfoils and applications, that the voters were identifiable, rejected the votes under

His Honor rejected other ballot-papers marked as follows:—

With four crosses in squares, one or two of which were doubt­

fully obliterated.

With three crosses in squares, one almost obliterated, and a

diagonal line in a fourth square.

With three squares drawn in pencil in the blank space opposite names of candidates, and a single line through each of these squares. Postal ballot-papers on which the elector had written the names of three Senate candidates and the name of the candidate for the House of Representatives in that Division.

A postal ballot-paper on which the names “ Dugald Augustus,” the two Christian names of the candidate Crosby, were written, his surname not appearing, while the entire names of two other candidates were written.

An absentee voting paper was apparently handed to the elector in the shape of three of such papers adhering together by the gum intended for the purpose of sticking them down after the vote was marked. The topmost only of the three was initialled and the counterfoil tilled up, but the voter marked his votes on the face of the lowest of the three. He returned them in that condition, but the papers did not adhere sufficiently to be treated as one document.

Upon the addition of the votes allowed, the result was announced as follows:—Symou, 33,782; Russell, 32,000; Vardon, 31,640; Crosby, 31,638; Blundell, 31,560; Charleston, 30,768; Playford, 13,113.

Vaughan. There being a difference of only two votes between Crosby and respondent Vardon, and a great number of votes having been invalidated by official errors and defaults, the election of respondent must be declared void.

(a)

One vote for Crosby was illegally rejected at the official

recount by the Divisional Returning Officer at Angas after it had

been admitted at the first count at the Kapunda counting centre. The officer conducting a recount has no jurisdiction to review the discretion of the counting officers in admitting votes as valid ; a recount is not a re-scrutiny, but merely a mathematical checking of the results.

(b) The ordinary voting papers, which were rejected because they were initialled on the face and had not been so folded that the initials could be seen, were invalidated by official de­ fault. These were 21 in number, and were sufficient to turn the election. This Court would not be justified in looking into the way the votes went on these papers, as they were invalid: Chanter v. Blackwood (1). The same principles apply to the class of absentee and postal voting papers (185 in number), which were left wholly uninitialled by official default. Moreover, if the Court decides to look into the way that the votes went on the improperly initialled papers, on which the balance is on Vardon’s side, then the Court is also bound to look into the uninitialled papers, on which the balance in Crosby’s favour is more than enough to turn the balance against Vardon. These uninitialled papers are sufficiently authentic, as they must have good counterfoils on them before they get into the counting box : Regulation 25. Therefore, if the votes are looked into, Crosby would have been elected but for official default; and if the votes are not looked into, the whole block of votes must be treated as neutral, and would equally certainly upset this election. This class is augmented by a large number of votes which were rejected in Angas. Secondary evidence could be given to prove that these, now destroyed, were invalidated by an officer failing to initial them.

(c) Since the inspection of the valid votes has resulted in so close a finish, the destruction of the Angas papers renders it necessary that there should be a new election, as it cannot be ascertained by judicial scrutiny whether the large number of informal votes there were rightly or wrongly rejected.

Piper. The claim that one vote was unlawfully revised at the Angas recount is only an inference drawn from a variation in

(1) 1 C.L.R., 121, at p. 128.

the figures. The proper and innocent inference should be drawn that it was an arithmetical correction of a mistake in addition. In any case, revision is proper at a recount of that kind.

The Court may lawfully inquire into the way the voting went on the 21 papers that w*ere initialled on the front, and these merely serve to increase Vardon’s majority. Such inquiry would not violate the secrecy of the ballot: Woodward v. Sarsons (1). Chanter v. Blackwood (2) does not apply, because there the wrongly admitted and wrongly excluded voting papers could not be separated from the good votes and counted. But the Court cannot inquire into the voting on the wholly uninitialled voting papers. These were never authentic papers, and the Court cannot presume that it was by any default of an officer that they were left unauthenticated. Sec. 200 of the Electoral Act throws the onus on the person attacking the validity of the election to prove that it was the error of officers that affected the result of the elec­ tion. There is no proof that these papers were ever authentic ballot-papers, or had genuine counterfoils attached. Therefore, these unauthenticated papers cannot in any way be admitted to the consideration of the Court, either for inquiry as to the way the votes went, or as a neutral block of votes made invalid by official default.

Barton J.

One vote at Angas was the subject of argument

on an important point. In the turn the case has taken it is not necessary to decide the question raised on this vote, whether a recount if directed under sec. 101 (a) authorizes a revision of the decisions of the officers on the scrutiny as to the reception or

rejection of votes.

In view of the terms of sec. 161 (a), sec. 100

(c) (d), sec. 119 (c), (where the word “ count ” was clearly applied to an operation involving decision on a class of ballot-papers up to that time unopened), and Regulation 28, the question is a diffi­ cult one, and I should not, as at present advised, be prepared to hold that the decisions of the officers at a first count or “ scrutiny ” cannot be re-opened at a “ recount.” The scrutiny is spoken of in the Act as a count, or a counting of the votes, and the recount may be confined to the ballot-papers contained in any “parcel,"

(1) L.R. 10 C.P., 733.

(2) 1 C.L.R., 121.

while the votes rejected as informal have, like the votes allowed, to be put up in parcels. But I think the question should await decision on a fuller argument than was devoted to it here.

As to the question in connection with parcel A., the 21 ballot- papers initialled on the face instead of the back, and as to which it does not appear that they were so folded that the initials could he seen by the Presiding Officer. This is a different case from that dealt with in Chanter v. Blackwood (1) of the 1)1 persons being allowed to vote who had no lawful title to vote at all. They were strangers to the election entirely, and had their ballot- papers been traceable, their only effect on the election would have been that each such false vote would have been deducted from the score of the candidate for whom it purported to have been give. As it was impossible to trace them, and as they of them­ selves outnumbered the petitioner’s majority on the judicial recount, it could not be said that their intrusion had not affected

the result.

Clearly it might well have done so.

In the present instance the 21 votes in question were unques­ tionably rightly rejected at the poll, and I have confirmed the rejection. That they were wrongly initialled was the fault

of the presiding officer.

Had they been allowed, would Mr.

Vardon’s majority have been converted into a minority l On a rectification of the votes allowed, Mr. Vardon has a majority of

2.      Now there can be no breach of the secrecy of the ballot

in apportioning these 21 votes. This is not like the applica­ tion refused by Griffith C.J. in the case last cited, where it was sought to refer to a private scrutiny the applications for, and the counterfoils to, the postal ballot-papers there held to be invalid, so as to find out for whom the holders of these papers voted. To yield to that application would have disclosed for whom certain named individuals voted, but it was refused as an attempt to infringe the secrecy of the ballot. No such danger exists here. We already know how each one of these votes was cast, but we know nothing at all, and cannot know anything, of the identity of the voters. I therefore think we are entitled to look again at these papers to see whether they would have affected present results had the presiding officer done as the Act directed him and initialled

(1) l C.L.R., 121.

HIGH COURT

11907.

. the papers on their backs.

On inspection I find that only 2 of

them were for Vardon and none for Crosby. So far, then, from affecting the result they would have increased Vardon’s majority to four had they been allowed.

Now comes the very serious question whether we can look at all at the totally uninitialled papers, 179 of which were the papers of what are called absentee voters, and 0 were postal ballot-papers, and whether we are to consider how their faces show the result would have been affected, or are to take the whole 185 en bloc and say of them that the}’ necessarily avoid the election, as they may have affected its result. The question whether sec. 200 applies, that is, whether the error of the officers is proved to have affected the result, is also raised.

I am satisfied that I must look at this as another set of instances in which votes have been thrown away through the fault of officers in not doing as the Act ordains. Here there were no initials at all, in face of the express and unmistakeable requirement in the Statute. Mr. Piper's argument as to authenticity is ingen­ ious, but I cannot help remembering that there is no suggestion that even one person who was not a qualified elector was allowed to cast any of the votes under review. As they were all honest attempts to vote, it is clear I can look at them for the purpose of seeing whether they would have affected the result had they been valid.

It is manifest that, but for the omission of initials, Vardon's majority of 2 over Crosby would have been converted into a minority of 4. Therefore, unlike the 21 votes in parcel A, they certainly must have affected the result, and so I cannot apply sec. 200. It is deplorable that all this litigation and expense should have been caused to perfectly innocent parties by the failure of officials to attend to duties clearly laid down in Statutes, Regulations, and printed instructions. Had I a certain power the Court possesses in England, I should consider whether it was not my duty to order an official contribution, at least to the costs.

As it is, having regard to sec. 205, sub-sec. (ill.), I must de­ clare the election of Vardon to have been absolutely void, and under all the circumstances, as the proceedings are due to the

4 C.L.R.JOF

AUSTRALIA.

default of the officers, I do not order costs. Each party will bear his own. I should add that the inquiry has shown that the seats of Senator Sir Josiah Symon and Senator Russell could not in any circumstances have been successfully challenged.

Tlte election of the respondent Joseph Vardon

declared absolutely void.

Solicitor, for the petitioner, J. H. Vauyhan.

Solicitors, for the respondent (Joseph Vardon), Piper <k Bale.

N. G. P.

[HIGH COURT OF AUSTRALIA.]

KENNEDY....................................................................................Petitioner

AND

PALMER....................................................................................Respondent.

ECHUCA ELECTION PETITION.

Election—Ballot-paper—Necessity for placing cross within square—Maris enabling voter to be identified—Commonwealth Electoral Act 1902 (Xo. 19 of 1902), secs. 151, 158 (d).

The decision of the High Court in Chanter v. Blaciwooil, (No. 1), 1 C.L.R., 39, viz., that the cross indicating a voter’s preference must be placed within the square printed on a ballot-paper opposite to a candidate’s name is direc­ tory only and not mandatory, is not affected by the Commonwealth Electoral Act 1905.

In the absence of any evidence of an improper practice or plan, the mere fact that there is upon a ballot-paper a mark which may by possibility enable some one to identify the voter, does not necessarily invalidate the vote.

Statement of questions to be determined before acceptance of a ballot-paper

as good.

VOL. IV.

95