DR. R. SARAVANAMUTTU, Petitioner v. JOSEPH DE SILVA, Respondent

063-NLR-NLR-V-43-DR.-R.-SARAVANAMUTTU,-Petitioner-v.-JOSEPH-DE-SILVA,-Respondent.pdf


Dr. R. Saravanamuttu v. Joseph de Silva.
1942Present: de Kretser J.
In the Matter of the By-election for the Colombo NorthElectorate held on April 26, 1941.
DR. R. SARAVANAMUTTU, Petitioner.v.
JOSEPH DE SILVA, Respondent.
State Council elction—Agent guilty of corrupt and illegal practice—Report toGovernor—Fair warning of the charges—Opportunity to he heard—Right to call evidence—Conclusion of trial and certificate—Ceylon(.State Council Elections) Orders in Council, 1931 and 1935, s. 79 (2)and (2).
Before an election Judge reports a person to the Governor undersection 79 (1) (b) of the Ceylon (State Council) Order in Council he musthave a fair warning of the charges and be given an opportunity of beingheard.
Where an agent is reported, who has had an opportunity of defendinghimself at the trial, he is not entitled to call evidence but only to beheard.
Where a witness, who appeared only incidentally and against whomno direct charge had been made is. reported, he must have fair warningof the charge and an opportunity of giving and calling evidence.
Whether a person had fair warning and opportunity would dependupon the facts of the particular case.
The Court would then complete the trial and certify its determination .and make a report.
T
HIS was a notice served on A. E. Goonesinha, a witness in theabove-mentioned election petition, to show cause why he should
not be reported under section 79 (2) of the Ceylon (State Council Elections)Orders in Council, 1931 and 1935.
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DE KRETSER J.—Dr. R. Saravanamuttu v. Joseph de Silva.
Counsel:
R. L. Pereira, K.C. (with him C. V. Ranaxvake, U. A. Jayasundera,and V. F. Gooneratne), for A. E. Goonesinha.
U. A. Jayasundera, for A. J. S. Perera.
Dodwell Goonewardene, for Julian Fernando.
H. H. Basnayake, C.C., for Attorney-General on notice.
C. S. Barr Kumarakulasingham, for petitioner.
March 18, 1942. de Kretser J.—
Upon being called upon to show cause under Article 79 (2) of theOrder in Council, each of the persons noticed desired to call witnesses inorder to convince me that the decision I had previously arrived at waserroneous. I had previously caused notice to be given to them that Iwould not allow evidence which was intended to canvass my findings inthe absence of authority to the contrary. The object of this was to putthem upon special inquiry. And in order to have further assistance I alsoinvoked the help of the Attorney-General, on whose behalf Mr. Basnayake,Crown Counsel, appeared and gave valuable assistance, for which I ammuch indebted.,
Counsel for the parties noticed relied entirely on the wording of Article79 (2), and Mr. Pereira drew my attention to the fact that it was differentfrom the English Statute and expressly gave the parties noticed the rightto give evidence, a right which he did not propose to exercise. CrownCounsel relied on the wording of Articles 78 and 79. Nobody had been ableto find any authority directly in point and I myself have found none,though I made diligent search from the time when the trial of the electionpetition was going on.
I will consider the matter first on the lines taken by Counsel.
Article 78 requires the judge to determine whether the election was voidand to certify such determination. . Article 79 (1) requires him also toreport in writing to the Governor certain matters. Both Articlescommence with the words “ At the conclusion of the trial ”. The naturalconclusion is that both the judgment and the report are contemporaneousand follow immediately upon the conclusion of the trial, the trial being, asin the Civil Procedure Code, something different from the judgment. Asfar as I have been able to gather, this is what happens in England andDalton J. supports that view in Latiff v. Saravanamuttu', the ColomboNorth Election Petition of 1931.
The next point to be noted is that the election judge determines whetherthe election was void and his determination is final. Now, his determi-nation may be based purely on corrupt or illegal practices committed by anagent of the candidate. It seems to follow that his determination that anagent has committed an electoral offence is final also. It would lead tothe most awkward consequences if, after a candidate had been unseated,his agents were allowed to prove that no offence had been committed.
1 34 N. L. R. 369.
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A candidate may be given relief, and an agent may similarly seek reliefand should be given an opportunity of asking for relief. Crown Counselcontended that Article 79 (2) was intended to secure that opportunity forthe party noticed and no other.
It is strange that there should be no reported case. It cannot bethat Hope springs eternal only in the breast of the litigant in Ceylon, orthat it has never occurred to any person in England to exploit his opportu-nities to the fullest possible extent. Nor can it be that the absence ofcases is purely due to the fact that the common sense of lawyers in Englandmade them realize that it was futile to expect a judge to reverse a decisionwhich he has arrived at after anxious consideration and after the fullestpossible investigation. It must be due, in my o'pinion, to some otherreason, and Crown Counsel has given a likely one.
Article 79 (1) (a) affects a candidate, and his agent while Article 79 (1) (b)affects all persons found guilty of corrupt or illegal practices. It is true that“ all persons ” may include both a candidate and his agent but a simplerule of construction indicates that Article 79 (1) (b) refers to persons otherthan candidates or their agents. A candidate and his agent are classedtogether for good reasons and it is scarcely necessary to go into the mattermore fully. In both classes of cases the judge reports on what has beenproved, and in Article 79 (1) (b) there is the further emphasis that the proofshould have been “ at the trial ”. With respect to the candidate or hisagent the proof would necessarily be at the trial, so perhaps it was unneces-sary to say so expressly, but in the latter case all doubt is removed in theclearest terms. A matter cannot be said to be proved unless both sideshave been heard. I cannot conceive of any Court reporting that a matterhas been proved unless it has heard the party affected by the report.
What then is the meaning of Article 79 (2) ? Mr. Pereira contends thatany person who is not a party is not before the Court and has no controlover the proceedings, and that the provision was intended to bring himbefore the Court and put him in control of his own defence. There is agerm of truth in this contention but while I agree that it is intended tosecure fair play for the party affected, I do not think it is founded on thetechnical ground that he was not a party to the election petition. It mustbe remembered that election petitions are sui generis and that everyconsideration that applies to proceedings between individuals does notapply to them. Reference to various aspects of this matter will be foundin the following cases :—the Tipperary case ', the Ipswich Case ", the NorthHeath Case the North Louth Case'. Besides, Article 79(1) (a)includes acandidate who may not be the petitioner.
Before the trial of an election petition the charges are set out withparticularity. Where agents are charged with corrupt practices thecandidate is prompted both by motives of self-interest and of loyalty toprotect his agents, and agents are naturally interested not only in safe-guarding their own interests but also in promoting the cause which theyhave espoused. They are not parties on the caption of the record but theyare parties named in the record. Other persons guilty of corrupt practicesmay not be so vitally interested and their allegiance may be doubtful.
1 3 O’M lb H 28.3 Ibid 186.
1 i O' M di H 70.* 6 O'M & H 112.
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DE KRETSER J.—Dr. R. Saravanamvttu v. Joseph de Silva.
In section 38 of 46 and 47 Viet, the Court is required to cause notice tobe given and, if the party noticed appears, to give him an opportunity ofbeing heard by himself and of calling evidence. A Bench of three judgesdecided that the expression “ being heard by himself ” excluded the rightof Counsel to appear (R. v. Mansell Jones '), but in spite of this decision ofjudges in England seem to have allowed Counsel to appear. It may bethat Article 79 (2) is differently worded in order to prevent the objectionthat Counsel may not be heard. But, far from supporting the contentionof the persons noticed, the next words, in my opinion, rather weaken it.The person noticed is allowed the opportunity of giving evidence. Now,no person who has given evidence already at the trial and who presumablyhas said all he had to say at that time will need to give evidence again. Inthe present case it was not intended to call the person noticed; such aproceeding would have been futile. Can then the law have provided for aproceeding which would be obviously futile ?
On a consideration, therefore, oh the language used in the two articles,it seems to me that the position taken up by Crown Counsel is the correctone in the circumstances of this case. But at this stage, I would not limitthe operation of. Article 79 (2) to the claiming of relief, for circumstancesmay exist—such as when a respondent abandons his seat—which willrequire that the persons noticed should be allowed both to give evidenceand to call evidence, going even further than the claiming of relief.Dalton J. said, in the case referred to, “ There would appear to be nouncertainty as to the practice followed in England as set out in the casesto which the Acting Solicitor-General referred. There is no sugges-tion there that any further proceedings subsequent to judgment aredenoted. The indications are all to the contrary …. One mustinfer that any person entitled to notice under section 38 duly received suchnotice before judgment. It must be noted however that the requirementsof our Order in Council in respect of procedure do not go so far as section38
While not agreeing in every respect with Dalton J., I think his opinionthat in that particular case (which was also one that was hotly contested)no further proceedings were necessary was right. I do not think he was.right when he said that no proceedings are taken in England subsequentto judgment. The Cheltenham Case ‘ is an illustration of proceedingsbeing taken after judgment. So is the East Dorset. Case, referred to byhim.
Having now considered the terms of our Order in Council, I turn for amoment to seek guidance from the English law upon which our Order inCouncil is modelled and which is expressly invoked in Article 83 (4). InEngland the matter of Elections was originally within the sole jurisdictionof the House of Commons, and the present law is the result of manystatutes, on which our Order in Council was modelled, not always withhappy consequences. After 1770, Select Committees of the House decidedupon the validity of elections. Their decisions were often followed byElection Courts, which never lost sight of the fact that they were func-tioning in lieu of such Committees. In the Ipswich Case we are told thatthe Committee gave no reasons for their decisions but the judges felt that
•1 23 Q.B.D. 29.1 fi O’M & H 194.
DE KRETSER J.Dr. R. Saravanamuttu v. Joseph de Silva.
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it was desirable to state their reasons. In 1832 statutory provisions wasmade for the appointment of Commissioners to inquire into corruptpractices at elections. In 1868 statutory provisions was made for the trialof election petitions by one judge. Section 11 (13) required the judge todetermine whether the election was void and such determination was final.We have taken over that provision. He was also to certify forthwith.
Section 11 (14) required the judge to report when the petition containedcharges of corrupt practices. This was to be in addition to the certificateand was to be made at the same time ”. These words throw light on thewords “ at the conclusion of the trial ” in Article 79 (1). There was afurther report to be made whether corrupt practices actually prevailed, orthere was reason to believe prevailed, extensively.-
In England the report is made to the Speaker and the House may takefurther proceedings thereon. For obvious reasons we have no suchprovision in Ceylon. Nor have we the provision in section 11 (15) for aspecial report, nor that in section 11 (16) for a case to be stated, nor thatfound in section 12 for the reservation of a case on a question of law as tothe admissibility of evidence nor that in section 15 for a Commission ofEnquiry.
Now, it must be noted in the first place that, while the election Judgewas required to report, no provision was made for notice to be given to thepersons affected. They would be persons who at the trial had been foundguilty of corrupt practices. Section 45 provided that only a person foundguilty of bribery' in any proceeding after due notice could be disqualified.
Mr. Justice Blackburn seems to have reported in 1889 that two personshad been bribed in the Bewdley Elections. The facts are not statedbut one may infer that he was reporting on a petition which made chargesagainst the successful candidate or his agent. On a subsequent electionwhen a scrutiny of votes was being made Counsel contended that these twopersons had been found guilty in a proceeding and were disqualified butMr. Justice Blackburn refused to entertain the objection, mainly on theground that in a report.a Judge decided incidentally and his report did notamount to a conviction. He appears to have construed the words “ inany proceeding ” as “ in any criminal proceeding ”. He added that theprovision for giving a person charged an opportunity was not satisfiedunless he had fair warning of the charge and was called upon to meet it andtherefore a witness called on the spur of the moment could not properly bedealt W'ith. This is the Bewdley Case1. From this, one may gather thatbefore a person is disqualified he should have fair warning of the charge^and be given an opportunity of being heard. The question is what thisamounts to : whether the procedure is as rigid as in a criminal case or maysometimes be purely formal.
The later Act of 1883 disqualified a person on report against him by theElection Judge. It was section 38 of that Act upon which our Article 79 (2)seems to have been based. It applied not only to an Election Courtbut to Election Commissioners too, who would not be acting upon chargescarefully framed as in an election trial but inquiring into the reportthat corrupt and illegal practices extensively prevailed.
11 O'M & H 176.
248 DE KRETSER J.—Dr. R. Saravanamuttu v. Joseph de Silva.
Dalton J. thought section 38 went beyond our Article 79 (2) but I amunable to gather what exactly he had in mind. Read with the provisionas to the report being made at the same time as the certificate it wouldseem that notice under section 38 must be given before the conclusion ofthe trial.
Section 38 contemplates the case where the person is not before theCourt. What happens if he is before the Court and has no cause to show ?Obviously no notice would then be necessary since the provision is for hisbenefit. Was it to prevent any quibble on this point that Article 79 (2) didnot provide for a notice but left it to the Court to give the party a sufficientopportunity ?
Section 60 of the statute of 1883 required the Election Court to reportwhether certificates of indemnity had been granted or not to the personsreported. Certificates of indemnity are granted in order to inducepersons to give truthful evidence on the petition even though it mayincriminate them, and the better opinion seems to have been that suchcertificates may be granted only when witnesses give evidence during thetrial of the petition and not on' the subsequent proceedings to show cause—vide the Cheltenham Case.
Now, how did the Judges interpret the provisions of section 38 ? Thereis no express decision on the point but we get valuable insight into thepractice which prevailed.
In R. v. Mansell Jones ‘, section 38 came in for consideration indirectly.It was a case relating to a Municipal Election and was tried under adifferent Act by a Commissioner. In the course of the hearing notice wasserved on one Giles and the question that arose was the right of Giles tobe heard by Counsel. They decided that he could be heard only by himselfin person. In the course of his judgment, Pollock B. said—“ The personcharged is not a party to any issue before the Court, and whether or not hehas committed corrupt practices must be determined upon the evidence ofother persons who must have been closely connected with his conduct. Itmust first be established by the evidence of others that he is a personagainst whom the charge is made. Then there comes a moment of timeat which the Commissioner has to determine whether or not to make areport against him. He is summoned before the Court ; and, if he appears,the Court must give him an opportunity of being heard ‘ by himself ’Those words may be struck out entirely if the view is adopted that he maybe heard by Counsel or Solicitor. I think they mean “by himself” andnothing else. No great danger results from that construction. He is onlyin the position of a man against whom a bill has been found by a grandjury. He is entitled to insist that other proceedings shall be taken againsthim before he is made liable to the consequences which may follow if heis found to have been guilty of corrupt practices.
The question is when that moment of time comes. We do not know atwhat point of time in the hearing of the petition notice was issued, but wedo know it was during the hearing. This man’s case came up again(23 Q.B.D. 273), for at the conclusion of the trial the Commissioner orderedhis prosecution. The question then arose as to whether the Commissionercould take that step on the evidence already recorded or should record
> 23 Q.B.D. 29.
DE KRETSER J.—Dr. R. Saravanamuttu v. Joseph de Silva.
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evidence afresh. Sir R. E. Webster, Q.C., A.G., argued that it was absurdto suppose it was the duty of the Court to take evidence afresh. Inthe course of his judgment, Manisty J. said—“ The facts of this case arethat the Commissioner was holding his Court, and the usual proceedingswere taken to bring persons before him who were charged with corruptpractices …. but before making his report it was necessary thathe should have evidence before him satisfying him that the parties hadbeen guilty of the charge, that is to say, that a prima facie case hadbeen made against them. ” Did the learned Judge mean to say that itwas usual to issue notices during the hearing or was he merely sayingthat the man had had notice without paying attention to the stage atwhich he received it ? It would seem that Giles did not give evidence,for the report alludes to his not appearing.
In the East Dorset Case', which Dalton J. has by mistake called the EastKerry Case,—evidence seemed to have been called for the respondent,Captain Quest, and among the witnesses was Lady Wimbome, a veryactive agent for him. The trial went on for eight days in Court andevidence was also taken on commission. At the end of the speech byCounsel for the respondent, who had intimated that he intended to applyfor relief, a discussion took place as to the form of notice required for thatpurpose. On the next day, after Counsel for the petitioner had addressedthe Court, lengthy judgments were given on various points in the case andthe conclusion was that the election must be declared void and also thatLady Wimbome should be reported but that she was entitled to acertificate of indemnity. Mr. Justice Pickford then said—“ Mr. Foote, Ithink it is only a formality but if we have to report anybody we have toask if they have any cause to show ”. Mr. Foote reminded the Court ofhis application for relief and was told relief would not be granted, andMr. Justice Pickford again said—“ We have formally to ask LadyWimbome whether she has cause to show ”. Mr. Foote left it to the Courtto act in such manner as it thought fit. Here then we have an instance ofa contested case in which after judgment the matter of showing cause wastaken up and dealt with at once. The case was in 1910. The Act of 1883applied but no formal notice was served and the whole matter was treatedas a formality.
In the Cheltenham Case' the whole of the evidence for thepetitioner was called and the respondent’s Counsel intimated that he couldnot contest the seat on one point and a discussion ensued on various points.The question was whether it was worth going on with the case and Counselsaid he wished to answer the charges against different persons and theCourt thought that such a course was possible but not usual. Counselthought his client owed a duty to the persons charged and a hint wasthrown out that the time for that would come later. Counsel thinking ofthe absence of Counsel when cause was shown later pointed out thatmatter and Mr. Justice Bucknill remarked that the Court would nevermake the order after the proceedings are over without hearing the parties.Mr. Justice Channell said—“ We shall have to hear anybody against whomthere is a charge before we can report them. ” Then followed a discussion1 6 O'M <fc H 32.* 6 O'M <fe H lOi.
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on the difference between calling a witness when the petition was stillalive and only when he was showing cause, the Court intimating that inthe latter case the stage of granting indemnity was past.
Mr. Dickens contesting this position said—“ You cannot report till youhave decided the case …. Before he asks for his certificatesomething else must happen and he must be reported. You have to askhim why he should notbereported, and that raises an issue as to whetherhe has in fact committed an illegal act, and therefore that raises thequestion whether the petitioners have proved their case. ” The Judgeagreed that that would be the case if the witnesses were not called on thepetition and Mr. Dickens admitted the difficulty. Finally, the witnesseswere called in spite of« protest from Counsel for the petitioners who,however, assisted the Court by cross-examining the witnesses. Mr. JusticeBucknill said—“ It seems to me that each particular case must beconducted according to the discretion of the Court, to see that the matteris properly got at and properly threshed out ”.
After judgment a witness was called upon to show cause and eventuallyhe was not reported on a consideration of the legal effect of the evidence.In the course of his judgment Mr. Justice Channell explained the duty ofthe Court and its position where the respondent abandons the seat■ before the case for the petitioner is completely heard and also its positionafter the whole case has been heard (i.e., for the petitioner).
In this case too the witness did not call fresh evidence. The chargeagainst him was a minor one and affected him individually and not theresult of the election and was not specifically dealt with in the judgment.When he was called upon he successfully argued that he had not acted“ corruptly
In quite a number of the reported cases the respondent abandons theseat at an early stage and the question is often debated as to whether thetrial should proceed further. When it did it was upon the view that thetrial did not affect individuals only but was of public importance orbecause of'the duty laid upon the judges with regard to the general report.Vide the Ipswich-Case', the North Heath Case".
Another point to remember is that in England the Director of PublicProsecutions is required to be present to be represented at the trial, buthe does no more than .watch the proceedings ordinarily. There is no suchrequirement in Ceylon* In England, therefore, when Counsel for one of theparties retired (and the Court could not compel him to remain) the Courtmight have some assistance, from the Public Prosecutor, but often Counselobliged'the Court by continuing to take part in the inquiry and in one caseupon application by the Public Prosecutor the Court assigned thepetitioner’s Solicitor, who was acquainted with the facts, to instruct thePublic Prosecutor. In Ceylon an Election Judge would be very awkwardlyplaced if he had to be satisfied with the evidence of witnesses, called afterthe pinch of the case had been felt, about whom he was quite ignorant,and whom he could hardly cross-examine effectively or with severitywithout doing some violence to his-office. It would be unsatisfactory to.require the assistance of the Attorney-General, for he would have to workup the case in order to be of . real assistance and would not then be in the1 4 O'M d! H 70.* 2 Ibid. ISO.
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detached position in which he should be when considering whether aprosecution should follow on the election Judge’s report. The petitioner’sCounsel might not appear to assist. In fact, Mr. Pereira intimated that hewould object if Mr. Kumarakulasingham attempted to cross-examine hiswitnesses. Had the situation arisen the Court would probably havewelcomed the assistance of Counsel for the petitioner. It would bestrange if the law expected the Judge, who had heard witnesses and cometo a decision, to reverse his finding on statements made ex -parte bywitnesses called subsequently. It would be stranger still in this casewhen I am aware that each of the persons charged was adequatelyrepresented.
Mr. Goonesinha made it plain that he was mainly responsible for thedefence. For example, at page 716, he has said—“ I took a good deal ofinterest in this case after it was filed. I had to defend myself. I wasfollowing the case carefully. I instructed my Proctor. Mr. Razik wasnot with me when I instructed my Proctor. Mr. Joseph de Silva couldnot do even that. Many charges were levelled against me and I had todefend myself: I was told they were out for my blood” (page 717)
Q.—You instructed your Proctor he was living on Dr. Saravanampttu.
A.—That is so.
There are other passages in his evidence on the same lines.
Quite a number of witnesses were called to meet each charge. I cannotbelieve that the Legislature provided for futile proceedings and I believeall it desired to see was that each person was fairly treated and did havean opportunity of defending himself. The matter resolves itself into aquestion of fact in each case and, to repeat the words of Mr. JusticeBucknill, “ Each particular case must be conducted according to thediscretion of the Court, to see that the matter is properly got at andproperly threshed out.”
When the presence of the Attorney-General was dispensed with and thewords " at the trial” introduced in Article 79 (1) (b), did the Legislaturereally make a departure from the English practice in view of the differentconditions here and contemplate that a Judge would report only after atrial during which the person reported would have an opportunity ofdefending himself, i.e., did it exclude the cases where a respondent wouldabandon his seat at the very outset or only after the trial had proceeded tosome extent? There is no obligation in Ceylon for a Judge to continuethe hearing in order to report whether corrupt or illegal practices prevailedextensively; he is not acting inquisitorially. In the unlikely event of aperson charged not being called by the respondent the Court would surelydesire to hear what that man had to say for himself. Article 79 (2)merely brings that duty clearly before the Judge:
It seems to me that there is reason to believe that separate proceedingsare not contemplated in Ceylon, and whether one looks at the sectionsas they stand or the commonsense of things or the practice in England theconclusion is that in the circumstances of this case no further evidence ofany nature offered should be allowed.
Mr. Pereira felt doubtful about the matter but pressed me to state acase for a fuller Bench. The powers of an election Judge must be1 d O’M <fc H 70.! 2 Ibid. 1S6.
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found within the Order in Council and there is no provision for stating acase. Even if there had been, I do not think I should state a case atthis stage and in the circumstances of this case.
Mr. Pereira’s next point was that the evidence did not disclose theoffence of undue influence in either case inasmuch as both John Singho andSimon Rodrigo had not been asked not to vote but only not to work for therespondent. It is unfortunate that this argument was not raised at thetrial when it was assumed that if the evidence were accepted the chargeswould have been made out. The witnesses gave their evidence inSinhalese and the meaning of what they said was quite’ well under-stood by respondent’s Counsel. But he may have overlooked the law inthe stress of dealing with the facts. To begin with it must be borne inmind that the Legislature throughout has been anxious to preserve thepurity of elections and the free exercise of the franchise. It contemplatedthe legitimate use of influence. When it defined Undue Influence it usedthe widest possible language. Both John Singho and Simon Rodrigo werevoters and had members of their households or persons in the immediateneighbourhood who were likely to vote as they did. They were workersfor the petitioner and one cannot conceive that they would work for himbut not vote for him. Besides, the evidence is not merely that Mr. Goone-sinha asked them not to work for the petitioner but that he asked them towork for the respondent. His threat was a direct result of their refusal toact as requested. It was not merely a request that they should cease towork for the petitioner as they were entitled to do but that they shouldtransfer their allegiance and that would include transferring their votes.The undue influence was therefore intended to prevent them exercisingtheir franchise freely and on that ground alone the offence would becomplete. But it really went further for the result was that others whowould naturally follow these men did not vote and this result was foreseenand intended. More, it was intended through the agency of these men tosecure voters for the respondent. That other incidents intervened doesnot affect the position, and when in fact these other incidents are connectedwith Mr.Goonesinha’s conduct on this occasion they should the less affect this .liability. It was an abuse of influence and therefore within the purviewof the law. As pointed out in the Blackburn Case'—“ Whilst the strong-minded would be influenced against the intimidation, the weak-minded and earners, whether in the same employment or in others underlike circumstances, would or might be deterred. That they might bedeterred is sufficient.. If it is done with a view to affect votes,
or interfere with the free exercise of the franchise, it is within theprohibition. ”
In my view therefore the offences have been made out and a report willbe sent accordingly.
It is desirable to summarize my conclusions. They are—(1) The Courtmust report all persons who have committed offences ; (2) Before a personis reported he must have a fair warning of the charges and be given anopportunity of being heard ; (3) There may be persons who appearedonly incidentally and against whom no direct charge had been made in
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the petition, which is concerned with unseating the successful candidate ;
(4) A witness had everything to gain by speaking the truth for a certifi-cate of indemnity protected him from prosecution and he was given thatprotection if he gave evidence at the trial of the election petition. Hehad everything to gain and so had the respondent by meeting thecharges at the trial itself for if he disproved them there would success tothe respondent and the witness would not be disqualified or run the riskof prosecution (5) But if he failed, the Court had still to call upon him.It did that after it had evidence that an offence had been committed ;
In fairness to him the Court would not decide and could not reportuntil it was satisfied that he had had fair warning of the charge and anopportunity of giving evidence and of calling evidence ; (7) Whether he hadhad that fair warning and that opportunity would depend on the facts ofeach particular case. He might have had the opportunity of giving 1evidence and calling evidence, but not of being heard. Then he shouldbe heard ; (8) The Court would then complete the trial and certify itsdetermination and make a report. I have only to add that I much regretthe delay that has occurred. I say no more than that it is due to causeswhich eluded my control.