KINGSTOWN, St. Vincent – A judge will on Dec. 9 hear an application by Chief Magistrate Sonya Young for leave to appeal the ruling of High Court judge Justice Gertel Thom in in the case of Vynnette Frederick versus the Chief Magistrate, born out of the private criminal complaints Frederick brought against Prime Minister Dr. Ralph Gonsalves
On Nov. 15, Thom dismissed the Chief Magistrate’s applications to set aside without notice orders granting Vynnette Frederick leave to seek judicial review against her refusal to issue summons against Prime Minister Dr. Ralph Gonsalves.
The Chief Magistrate’s grounds of appeal, as set out in her Notice of Application, are that the judge erred when she failed to hold that the non-disclosure of material facts and the law before Justice Frederick Bruce-Lyle was material and intentional and therefore the grant of leave by Bruce-Lyle ought to have been set aside on this ground alone.
The application also say that Thom erred when she failed to hold that the Chief Magistrate was given a wide margin of appreciation and therefore she ought not to have intervened or held that the Chief Magistrate had erred in refusing to issue the summons.
It also argues that the judge further erred when she relied on material that was not before the Chief Magistrate in holding that the Chief Magistrate was wrong when she refused to issue the summons.
The applicants also argue that the judge misdirected herself of the application law and facts in that she failed to properly consider and/or hold that Frederick was not in fact a candidate for the purposes of Section 51 (3) of the Representation of the People Act at the time of the alleged statements she complained about.
Frederick, who was the New Democratic Party’s candidate in West St. George for the 2010 election loss in the constituency and her lawyers are arguing that statement attributed to Gonsalves affected her performance in the election.
“Ah mean, Bayliss would be a very unfortunate fellow if he send a daughter to study law, and came back and get a son, … a tomboy,” Gonsalves is quoted as saying.
“The fact that a statement of fact is stated in the form of a rumour does not prevent it from being a fact,” High Court judge Justice Gertel Thom wrote in her 45-page judgement handed down on Tuesday.
The judge wrote, “… the context in which he was using ‘tomboy’ was not simply a ‘tomboy’, but a male. That the ordinary and reasonable person in the constituency would find the statement to mean that Ms. Frederick left to study a female and she returned a male.”
“It could be successfully argued that a statement that a woman is a male related to her sexual orientation, and that a statement relating to a person’s sexual orientation, their sexuality, related to the person’s personal character or conduct. It relates to moral conduct,” the judge further wrote.
“In the circumstances of this case, I find that Ms. Frederick has an arguable case with a realistic prospect of success that the Chief Magistrate misdirected herself in finding that two of the essential ingredients of the offence were not prima facie present. I find there is no reason to set aside the order granting leave,” the judgement further said.
If Gonsalves is convicted under the RPA, he could be barred from voting or being appointed or elected to Parliament for five years.
But according to the leave application, the alleged words complained of referred specifically to the word or description “tomboy” and not to any other matter or description. “Alternatively, the Learned judge failed to properly consider and/or hold that the complaints made by the Respondent were not that the words complained of concerned her “sexual orientation”, an allegation which was never made by the Respondent, but that she was in fact a lesbian.
“The Learned Judge failed to consider that the alleged words were ambiguous or capable of meanings including that the Respondent may be or was a Tom boy other than the ones complained of by the Respondent namely that it was stated in fact that she was a lesbian,” the application further states.
Among the grounds for appeals was that the judge erred in not properly considering or holding that the Respondent’s failure to plead that the Chief Magistrate misdirected herself in law or that her findings were perverse was fatal to the Claimants/Respondents case.
It further states that the judge erred when she held that the essential ingredients of the offence under Section 51(3) of the Representation of the People Act were limited to whether the statement was a statement of fact and whether the statement related to the personal conduct of Frederick. The judge therefore failed to take into account the other essential ingredients of the offence which were not present or supported by particulars or evidence before the Chief Magistrate, namely that the alleged words were spoken of the respondent when a candidate or “for the purpose of promoting or procuring the election of another candidate”.