A lawyer for the government in the North Windward election petition has asked former acting High Court judge, Justice Stanley John to amend the ruling he handed down on March 21, dismissing the case after a full trial.
The request came in letters from Joseph Delves to registrar of the High Court, Andrea Young, on March 22 and March 27.
The March 22 letter came one day after the end of the appointment of Justice John as an acting judge in the Eastern Caribbean Supreme Court.
The main opposition New Democratic Party had filed the petition challenging the announced victory of the ruling Unity Labour Party’s Montgomery Daniel in North Windward in the Dec. 9, 2015 general election.
The court also dismissed the opposition party’s challenge in Central Leeward.
In the letter, Delves pointed out that there is likely to be an appeal of the judge’s ruling and asked that Justice John provide reasons for ruling in the government’s favour on two points of the petition.
In the March 22 letter, Delves said he was writing on the advice of senior counsel to draw to Justice John’s attention that he omitted to give reasons for his rejection of two of the petitioner’s complaints.
The first complaint relates to the claim that there were 39 more ballots than there were counterfoils at polling station NWI, in North Windward.
Delves also wanted the judge to explain why he rejected the petitioner’s claim that there was no recount of the ballots the day after the election — contrary to the law.
The lawyer noted that this claim was advanced through Cheryl Sutherland but was denied by the returning officer, Ville Davis.
Sutherland, a teacher and resident of Sandy Bay, was co-opted — in keeping with the provisions of the law — to witness the final count in North Windward, presumably after none of the candidates or their agents turned up.
Davis, during his testimony, told the court he saw Sutherland as an independent person during the
Sutherland maintained during cross examination that there was no individual counting of the ballots during the Dec. 10, 2015 exercise.
The petitioner has claimed that there was no advertisement of the final count of the vote which the returning officer said took place on Dec. 10, 2015.
In his letter, Delves said:
“Given that there is very likely to be an appeal in this matter, and that the Court of Appeal would no doubt be assisted by His Lordship’s reasons, particularly on the question of why he seemingly rejected the evidence of Ms. Sutherland, I write to ask His Lordship to consider providing his supplementary reason on these issues.
“Please be good enough to bring this letter to the attention of His Lordship as a matter of urgency,” Delves further wrote in the letter, which was copied to Maia Eustace, instructing counsel for the petitioner.
Delves wrote a second letter to Young on March 27, asking whether Justice John had been in receipt of his dispatch of March 22 “and if so, respectfully, when the parties may expect his Lordship’s supplementary reasons”.
That letter was also copied to Eustace.
Sutherland told the court that the exercise in which she participated ended sometime after 2 p.m. — six hours earlier than Davis claimed.
Davis said the final count lasted until around 8:30 p.m. — or about 90 minutes after Gonsalves was sworn in as prime minister for a fourth consecutive term with a one-seat majority.
During the trial, Davis told the court that he had misplaced the Form 16 statements of the polls for all the polling stations in the constituency.
A “Form 16” is the document on which the presiding officer at each polling station records vital election information, including the number of ballots received and used, as well as the outcome of the vote at that polling station.
The Form 16 is used as a reference point during the final count which takes place the day after the vote.
During the trial in February, Sylvia Findlay-Scrubb who was elections chief at the time of the 2015 vote, told the court that she could not say “off the top of my head” if she received any Form 16s at all from North Windward.
Findlay–Scrubb, who retired as elections chief in April 2018, said she would only be able to verify that information if she goes into the ballot boxes.
The court has to approve reopening the ballot boxes after they are sealed after the final count.
However, Findlay-Scrubb has opposed applications to inspect the ballot boxes and the court has ruled in her favour in that regard.
During the trial, Findlay-Scrubb, who was Supervisor of Elections during the December 2015 poll, says she never knew until the filing of the Dec. 31, 2015 petitions that there was a claim that there were 39 excess counterfoils at polling station NWI.
She further said she made no enquires about what allegedly transpired.
Findlay-Scrubb, however, agreed with Keith Scotland, lead counsel for the petitioner, that the tally of the counterfoil and ballots, used or unused, should reconcile, because counterfoils come from ballots.
Findlay-Scrubb, who retired from the elections chief post last year April, was asked if, in layman’s terms, the practical effect of having 39 excess counterfoils means there were 39 ballots unaccounted for.
She said: “If, in fact, that did happen.”
Judge’s ruling ‘fundamentally and fatally flawed’
Last week, Kay Bacchus-Baptiste, an NDP senator and lawyer in the North Windward petition, told iWitness News that Justice John’s ruling was “fundamentally and fatally flawed”.
“All I can say now is that his judgement is fundamentally and fatally flawed because he not only did not address the 39 more counterfoils than ballots, he ignored the evidence that there was no final count,” said Bacchus-Baptiste, who is the petitioner’s wife.
“He did not even treat with Ville Davis’ evidence and what he changed as opposed to what Cheryl Sutherland said,” the lawyer told iWitness News.
She was referring to the fact that Davis, just before being cross examined, amended his witness statement to ascribe to other electoral workers action that he had earlier said he had taken.
For example, whereas he had initially said that he collected all the ballot boxes, he amended his witness statement to say that Gradie King had collected half and he collected the other half.
Bacchus-Baptiste also said that the judge had “totally ignored the fact that there was no Form 16 at all in North Windward.
“Three very, very salient points he has ignored. And, it is fundamentally flawed. You can’t cure that…”
‘perfect grounds for appeal’
She further said that the judgement is “irrational”.
“He has not really looked at the petitioner’s case in North Windward. It is a fatal flaw. It opens up perfect grounds for appeal on which we should succeed.”
Bacchus-Baptiste said the petitioner is planning to appeal.
“We are working on the appeal.”
She said that an appeal was being considered in the North Windward petition.
The NDP also failed in its bid to overturn the election results in Central Leeward in a petition filed by its candidate, Benjamin “Ben” Exeter.
Bacchus said that she could not comment on what course of action was being considered regarding that petition.
iWitness News has since learned that the NDP has decided to appeal the judge’s ruling in both petitions.
Bacchus-Baptiste pointed to what she said were errors in the judge’s ruling on the Central Leeward petition, including declaring valid ballots that did not have the presiding officer’s officiating marks or initials.
“To me, he made a very wrong decision in declaring those invalid ballots as valid. I don’t know how the learned judge could arrive at that because not even the respondents are saying that they are valid and he has declared that they are valid,” Bacchus-Baptiste told iWitness News.
“He did not treat with the invalidity and what would be the result of the invalidity of so many persons being disenfranchised. It was just such an amazing decision.”