Three months after his initial ruling and weeks after an appeal was filed, acting High Court judge, Justice Stanley John has responded to a request from lawyers for the government by providing “supplemental reasons” for rejecting the evidence of a key witness in the North Windward election petition case.
The main opposition New Democratic Party (NDP) filed the petitions, challenging the results in North Windward and Central Leeward in the December 2015 general elections.
Those constituencies were among eight that electoral officials called for the Unity Labour Party, which secured a fourth consecutive term in office by a one-seat majority in the 15-member Parliament.
Lauron “Sharer” Baptiste and Benjamin Exeter each filed petitions challenging the announced victory of the ULP’s Montgomery Daniel and Sir Louis Straker in North Windward and Central Leeward.
In a March 21 ruling, Justice John, a retired Trinidadian jurist who was contracted to hear the case, dismissed the petitions, saying he had found no evidence supporting their claims.
Justice John’s appointment ended on March 21, but in letters on March 22 and 27 to the Registrar of the High Court, Joseph Delves, a lawyer for the government in the case, wrote asking that the then former judge supplement his ruling.
Delves told the registrar that there is likely to be an appeal in the matter, so his clients wanted the judge to explain why he rejected the petitioners’ claim that there was no recount of the ballots in North Windward the day after the election.
He also wanted the judge to say why he rejected Baptiste’s claim that there were 39 more ballots than there were counterfoils at polling station NWI, in North Windward.
The registrar responded on April 1, telling the lawyer that Justice John’s appointment ended on March 21, but she had called his letter to the judge’s attention.
Delves replied to the registrar on April 4, telling her that the solution to the problem “is to arrange for the temporary appointment of His Lordship in order that he may give his outstanding reasons.
He asked the registrar to inform the Chief Justice of his letters so that she may take such action, as she deems fit and proper.
Justice John was subsequently appointed a temporary judge in Antigua and Barbuda, another circuit in the jurisdiction of the Eastern Caribbean Supreme Court, of which SVG is a member.
And, in a supplemental ruling last Thursday, June 13, Justice John noted Delves letter and cited two cases — Verbin Bowen et al v The Attorney General et al and Peter Thomas v Desireen Douglas et al — as providing legal basis on which he could acquiesce to the lawyer’s request.
Excess counterfoils allegation
Justice John said the effect of the complaint that there were 39 counterfoils at polling station NW1 is that there must have been missing ballot papers that were not accounted for.
He said that during the trial, the evidence of Veronica John, the presiding officer, was that when the issue was brought to her attention, a recount was conducted and the counterfoils tallied with the ballots.
The petitioner’s witnesses at the recount did not accept that the recount resolved the issue, the judge noted, adding that the respondents accepted that at the preliminary count when the counterfoils were originally counted they exceeded the ballot by 39.
He said the court had earlier expressed the view that John was a credible witness and on that issue, the court accepted her evidence that a recount was conducted and the counterfoils tallied with the ballots.
The jurist further pointed out that Neleon Adams and Kendall Sandy, who also gave evidence on behalf of the petitioner, testified that at the preliminary count there were 366 votes counted — 141 for NDP, 222 for ULP, two for Green Party, one for Democratic Republican Party and two rejected ballots.
Justice John said this was borne out by Adams’ witness statement.
“That, no doubt, was a direct reference to the number of persons that Adams recorded as having voted on his voter’s list. The final count of voters confirms that the total number of persons who
voted was 366,” he wrote and referenced documents SSF5, which was annexed to the witness statement of the then Supervisor of Elections, Sylvia Findlay-Scrubb.
“The court was therefore satisfied based on the evidence of Ms. Veronica John, Mr. Adams, Mr. Davis and the Exhibit SSF5, that there were not 39 more counterfoils than ballots. Accordingly, the court dismissed the complaint,” Justice John wrote.
No recount claim
Regarding the second complaint, Sutherland’s claim that there was no recount of the ballots on the day after the elections, the judge pointed out that the petitioner claimed that there was no publication of the notice for the final count in breach of Rule 13 (2) of the House of Assembly Election Rules.
He, however, said that the evidence advanced showed indisputably that neither the petitioner nor any of his agents attended the final count.
Notwithstanding the assertion in his pleadings, no evidence was forthcoming from neither the petitioner nor his agents of the failure to give the requisite notice, the judge said.
He said that Ville Davis, the returning officer, testified that he posted the requisite “Form 6” – a notice indicating the date and location of the final count — at the police station and additionally the “Form 6” was published in the newspapers prior to the election date.
Although Davis was cross-examined, counsel for the petitioner did not challenge his assertion on that issue, the judge found.
He said there was, however, evidence from Sutherland in her witness statement that she saw no “Form 6” as prescribed in the Representation of the People Act advising of the date, place and time of the final count.
Under cross- examination Sutherland admitted, that she did not know what “Form 6” was.
“In fact, it was very hilarious when she said ‘the only Form 6 I know is in school’,” Justice John wrote in his supplemental reasons.
The court was satisfied that there was due notice of the final count in accordance with the RPA, he said, adding that the ground of appeal therefore failed.
‘cogent, compelling and reliable evidence’ needed
The petitioner had alleged further that, contrary to Rule 42 (2) (a) of the House of Assembly Election Rules, there was no final count of the votes cast.
The petition claimed that instead of counting the ballots individually, Davis simply accepted the figure written on the envelopes containing the ballots.
Davis gave evidence outlining the procedure followed during the count, saying he counted each ballot and in one instance he even accepted two votes which had been rejected by the presiding officer.
Justice John said the court noted that in giving his evidence in chief, Davis was “at times faltering. He was cross-examined by counsel for the petitioner and maintained his position that there was a final count.”
The judge said the only evidence to the contrary came from Sutherland “whose evidence was, in many instances, contradictory and unreliable”.
The judge noted that Sutherland, in a sworn statement before a notary public on Dec. 14, 2015 stated that she saw “no Form 6”.
Under cross-examination, she admitted having in her possession a copy of her witness statement which she said she had studied the previous day.
Her testimony was consistent with the statement, yet when cross-examined; she denied knowing about “Form 6”, the judge said.
Justice John said that, accordingly, the court was satisfied that there was due notice of the final count in accordance with the RPA.
“It can be inferred from the statement of Ms. Sutherland that she knew what a Form 6 was and was on her guard for such a document, displaying the date, time and place of final count but that she saw none. That, however, was not true having regard for her evidence under cross examination.
The judge said that Sutherland’s estimate is that the process on the day after the election took five hours, less one half-hour break.
But she testified that the process of opening each box, checking the contents and noting the count allegedly written on the envelope took ten minutes each, which meant the entire process took 2 hours and 20 minutes in all, which left a further 2 hours and 10 minutes unaccounted for.
“That contradicted her statement that there was no counting of the ballots,” Justice John said.
“The allegations made in the complaint were extremely serious and therefore warranted cogent, compelling and reliable evidence in support thereof. The evidence of Ms. Sutherland was unsatisfactory, unreliable and very contradictory. In all circumstances, the court rejected the complaint.”