Judge refuses NDP’s application to inspect election documents

High Court judge Justice Brian Cottle on Monday rejected an application by Ben Exeter, the New Democratic Party’s (NDP) candidate for Central Leeward in the Dec. 9 general elections, seeking access to certain elections related document.

“I do not consider that the applicant has shown any grounds, far less any strong grounds, to grant the application,” Cottle said in a written judgement handed down late Monday afternoon.

The judge cited the ruling of the Court of Appeal in Trinidad and Tobago in relation to petitions stemming from the recent elections there.

While he noted that the laws in that CARICOM nation are different from those in St. Vincent and the Grenadines, Cottle said, “I, too, feel that to grant the application as file would be akin to …  ‘permission to embark on an unfettered roving commission of inquiry. The only legitimate parameters are those circumscribed by the grounds and materials facts contained in the (application) in light of the relief sought and the relevant law.’

“I, therefore, refuse the application,” Cottle said.

He, however, added in a postscript that after the draft of the decision was completed, the court was informed by telephone that Exeter had filed at the Court office, late on Christmas Eve, “certain written submission”.

“I have not had the benefit of reading those before this decision was complete,” the judge added.

Exeter was a first-time candidate who electoral officials say lost by 313 votes to the Unity Labour Party’s (ULP) Sir Louis Straker, a former Central Leeward MP who came out of political retirement to run again.

Exeter asked the court to order that Supervisor of Election Sylvia Findlay “produce forthwith all ballot boxes in her custody in the consistency of Central Leeward”, handing them over to the Registrar of the High Court.

He also asked the court to order that the said ballot boxes be opened to the Registrar in his presence and that he be permitted to inspect all ballot papers inside them.

He also asked that the court order that the sealed packets containing counterfoils in the ballot boxes be opened by the Registrar in his presence and that he be permitted to inspect the counterfoils.

The orders were for the purpose of an election petition to be lodged on behalf of Exeter in accordance with the relevant laws complaining of undue election of Sir Louis to the House of Assembly.

Among other things, Exeter’s lawyer, Stanley John, QC and Maia Eustace, argued that Exeter and his representatives were denied the opportunity to inspect the counterfoils for the polling stations.

This, they say, was the case expect for one polling division, and occurred after Straker’s representatives questioned the Returning Officer, Winston Gaymes’ production of the counterfoils to the Exeter’s representatives/agent.

Exeter’s legal team also argued that contrary to the House of Assembly Election Rules, Gaymes ignored objections by Exeter’s representatives at the final count and counted as valid more than 300 ballots which were defective in material respects.

These ballots, Exeter’s lawyers argued, appeared to have been willfully mutilated in such manner that contrary to Rule 31(1) of the House of Assembly Election Rules, neither an official mark or any initial of the presiding officer appeared on them.

Other similarly mutilated which appeared among the ballots in the boxes for other Polling Divisions were ruled invalid by the Supervisor of Elections, Exeter’s lawyers said.

The applicants told the court that at the end of the final count, 2,497 ballots were declared for Straker and 2181 to Exeter, making the difference between them 313.

They said that repeated request by Exeter and his agents to be permitted to examine the counterfoils of these ballots and other elector documents in respect of the Polling stations while the final count was being conducted were denied by Gaymes.

The presiding officer was obliged to prepare a Form 16 Statement pursuant to Rule 41 of the House of Assembly Rules after the preliminary count of the ballots for each polling station.

But the court heard that the information contained in the preliminary count of the ballots for each polling station in respect of used ballots and retuned ballots, when combined, is greater than the number of ballots shown as having been received from the Returning Officer.

Exeter’s legal team further told the court that during the final count, the returning officer refused his request for a recount as well as the request by Exeter’s agents on his behalf to have sight of the counterfoils for this polling division.

The court heard that Exeter informed the Returning officer at the purported final count that he did not accept the validity of the recount and that he would be challenging it in court.

Exeter’s legal team argued that based on these irregularities as fully set out in his affidavit, he is advised and verily believes that there was an undue return of the polls in Central Leeward as a result of the breaches of the applicable laws, including the Elections Rules.

The effect of these breaches, he said, was that the elections were conducted so as not to be substantially in the compliance with the law and that that materially affected the results of the elections.

But the judge pointed out that John explained to the court that the Exeter and his three representatives, were objecting at the final count of ballots described at mutilated, and did not count them at the final count of the ballots.

“They, therefore, have no evidence as to for whom these ballots had been counted. They were not able to suggest that the inclusion or exclusion of those ballots would have affected the outcome of the election. This, to my mind, describes the present application succinctly,” the judge said.

“The application had the opportunity to inspect all the ballots and satisfy himself of the accuracy of the count. He says he failed to do so because he was objecting to certain ballots. He does not identify those ballots. Instead, he seeks an order for the production and inspection of all the ballots.

“No suggestions have been made as to what the outcome of such an exercise will be. To my mind, the application on the grounds presented and on the evidence adduced epitomises a fishing expedition. The court is also concerned about the application to inspect the counterfoils as well as the ballots. If this is allowed, it would be possible for the applicant to identify individual voters and see how they voted,” Justice Cottle said.

The Supervisor of Elections was presented by Anthony Astaphan QC, Richard Williams, and Graham Bollers.