1907.

υ.

VARDON.

conduct, it is manifestly difficult, if not impossible, for him to H. C. OF A. prove a case for a recount, except by a judicial examination of the ballot-papers. He is, in such circumstances, almost, if not BLUNDEll 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. 161 (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 questions of law as applicable 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 remarkable 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 consider 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.

H. C. OF A. 1907.

υ.

VARDON

After careful consideration-the case being, so far as I know, wholly without precedent-I have come to the conclusion that BLUNDELL 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-eighth of those recorded, are concerned. It does not follow that he is to be deprived of the remaining means of proof because of the misfortune 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 he can prove that some of the papers were improperly rejected. It may possibly be that he 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.

The recount therefore will be granted.

It remains to appoint an officer who will conduct the recount and report to the Court; to secure him such assistance as may be 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. 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

therefore includes the whole of the ballot-papers, including those H. C. OF A. hitherto held informal.

The Deputy-Marshal reported to the Court that 828 votes of doubtful formality, in several classes, had been reserved for the determination of the Court. Apart from these, the admitted 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.

1907.

BLUNDELL

V.

VARDON.

May 27, 28, 30, 31; June 1.

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

1907.

VARDON.

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 presiding 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 presiding officer on the counterfoil is equivalent to his initials, and the counterfoil is part of the "ballot-paper:" Electoral Act 1902, sec. 119 (b); 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.

1907.

space on the right hand side of the paper and opposite the names H. C. OF A. of the candidates; there were no other marks. Some others had three crosses, with 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 ballotpapers, 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 opposite 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), (ƒ), 23.

BARTON J. I do not withdraw the opinion expressed by me in Chanter v. Blackwood (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) 1 C.L.R., 121, at p. 127.

(2) 1 C.L.R., 39, 121.

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

(4) 4 O'M. & H., 194, at pp. 196-7; Day's Elec. Cas., 155.

บ.

VARDON.