Petitioner Ben Exeter and lawyer Zita Barnwell take the stand on Day Two
Day two of the election petitions case saw the 2015 New Democratic Party (NDP) candidate for Central Leeward, Benjamin Exeter, as well as lawyer Shirlan ‘Zita’ Barnwell taking the stand.
Barnwell, who was present at the final count of the votes on December 10, 2015, was mainly asked about a section of her statement where she stated that she noticed that the ballots were folded in a particular way on the night.
She had said she could tell by the crease where the ballots had been folded, that if folded that way, the official mark and the initials of the presiding officers would be obscured.
She attached some ballots to her evidence to support this.
Lead Counsel for the Respondents, Douglas Mendes pointed out the ballot number on one of these ballots, which he traced to polling station CLA1. Earlier Barnwell had informed that she was not there when CLA1 was being counted, and therefore she admitted that this attached ballot could not have been a ballot that she examined, and was added in error.
Mendes then proceeded to begin a folding exercise using a piece of ordinary paper, saying that this paper would be a ballot.
Lead counsel Stanley ‘Stalky’ John, for the petitioners, first objected on the grounds of relevance.
“She is saying that if we can establish where the crease is, less than halfway up, we will be able to determine conclusively whether the initial was obscured. That is the relevance of the exercise I am going through My Lord,” Mendes stated.
John further objected saying, “If in fact the object is to verify the allegation in the witness statement, the allegation is in relation to a ballot. Why use a piece of paper?”
He said that it was not a ballot being used, but a “contrivance” and that the court had to look at the best evidence available to it.
In the end, a photocopy of a ballot was taken by Mendes from the evidence, and Justice Stanley John allowed this to be used, while acknowledging that it was a copy of the ballot.
Therefore, the exercise was carried out with Barnwell acknowledging that a crease made by Mendes was less than half way up.
Barnwell replied that from Mendes demonstration, it is true that the stamp and initial could be seen when the ballot was folded in the way in which she had described in her witness statement, but that different ballots had more or less on the top.
Mendes countered that she had said that attached to her statement was a bundle of the ballots which were creased in the way described in her statement, which was one that he had used.
When Exeter took the stand, counsel John wished to have a video shown to the court, which was in evidence, which described a paragraph of Exeter’s witness statement.
Mendes objected to this, reading the paragraph in which he noted that Exeter said that there were a lot of people in the room, that tensions had run high, and that he asked for a recount but didn’t get it.
“What is he expanding on? All of those are very simple and clear straightforward statements?,” Mendes asked.
Senior Counsel Anthony Astaphan also objected to the video, saying if it is not to challenge, then why is it being shown. “What is the purpose of the video if it is merely to support what is being said,” he said.
The judge noted, “It may very well be for that purpose.” The recording was allowed, but it was going to be shown on Exeter’s tablet, and so Mendes objected to this. He also said that the recording should be coming from the jurisdiction of the court.
A copy of the video was ordered to be made, and sent to the Registrar.
In cross examination, Mendes addressed the concern of the petitioner that a 100 or 101 per cent voter turnout was recorded for four polling stations CLA1, CLD1, CLE, and CLH as written by Presiding Officer Kathleen Jeffers.
Mendes put to him that Jeffers had committed a simple human error and that “Instead of putting the number of persons on the official voters’ list, she put the number of persons who voted. Isn’t that obvious to you sir?”
Exeter said that he could not agree.
Mendes also addressed the allegation that there were preprinted ballots.
The lead counsel said other than an affidavit by Supervisor of Elections Sylvia Findlay-Scrubb which mistakenly confirmed this and which was withdrawn within a month, had Exeter seen for himself, ballots where the stamp had been preprinted.
Exeter replied that he could not recall.
Mendes then drew attention to two ballots that Exeter took pictures of, and noted that neither of them had the stamp preprinted on them.
“Does it follow sir, that if you had preprinted the stamps on the ballots then all of them would have the stamp on it? Does that not follow?,” he stated.
Exeter said that it could have been a small sample.
Further, Mendes put it to Exeter that he had not named any of the polling agents from his party (the NDP) as being present when the boxes were opened, and who could testify that there were preprinted ballots; and that generally he had not listed any witnesses.
Exeter conceded this. The case continues today, Wednesday.