Lawyers make closing statements in Petitions case
The Respondents have asked the judge to reject the evidence of a witness which the lead counsel for New Democratic Party (NDP) candidate Lauron Baptiste stated would, “bring home” the petition for North Windward.
Keith Scotland, the Trinidadian lead counsel for petitioner Baptiste, stated that if what witness Cheryl Sutherland saw and heard with regard to the final count is to be believed by the court, it “brings home this case for North Windward.”
He said this is in addition to the fact that no form 16s (statement of the polls which account for all ballots issued to the polling stations) are before the court with regard to North Windward.
Even though there was a pleading in the petition that no form 16s were presented at the final count for the polling stations, “no documentary evidence of the statement of polls, as pleaded, was presented to this court,” Scotland informed.
He said that lead counsel for the 1st, 2nd and 4th respondents Trinidadian Douglas Mendes SC, had disclosed the forms to him during the trial, but if they “were not from the hand of learned senior counsel I would not have accepted it”.
They (the form 16s) are not before the court, he said, “we received something purporting to be form 16.”
“The issue of the lack of form 16 was pleaded, the other side had more than ample time to reply to it. They never condescended to put one form 16 before this court,” he insisted.
Sutherland, was a school teacher and an independent person with no political inclination, and was coopted off the street to witness the final count when the party agents didn’t turn up, Scotland stated. Her “unshaken” evidence before the court is that there was no final count in North Windward, he continued.
“Although she was questioned in every possible way about the individual counting of votes,” the counsel posited that Sutherland was adamant that there was no count.
He said that when she was questioned about a form 6 (used to advertise the location, place and time of final count), she admitted that the only form 6 she knows is from school.
She was not a witness that came to fib and admitted her error when she was found in error, he argued.
Even if she was not to be believed, Scotland argued, it was established that she left after two in the afternoon, and this was not contested by the other side. Ville Davis, the returning officer and a respondent in the petition, had stated that the final count had finished in the night.
“What Ville Davis was doing between 2:30 and eight o’clock in the absence of anybody Mi Lord, with a final count?,” Scotland asked, saying that if there was a jury this was enough to establish reasonable doubt.
Scotland concluded that this evidence, coupled with the absence of the statement of polls means the petitioner has established their case with “a preponderance of evidence.”
Mendes admitted that they did not initially disclose the statement of the polls, but submitted that they do exist, and were disclosed to the other side. However, he also admitted that they were not before Justice Stanley John and the court.
Turning to Sutherland’s witness statement, Mendes pointed out numerous occasions where different parts of Sutherland’s evidence were said to have contradicted each other.
“I saw no form six as prescribed by the Representation of the People Act advertising the date, place and time of the final count,” he cited her as saying in her witness statement, but this was contradicted where she said during cross examination that the only form 6 she knew was from school, he said.
“If she doesn’t know what a form six is, how can she say…how can she describe it?,” he asked the Judge.
He referred to parts of the statement that seem to suggest that there was a count, regardless that it is her testimony that there was none.
“She starts off by saying the count began mid morning,” he noted.
“The returning officers checked the rejected ballots but neither the returning officer nor anyone recounted the accepted ballots that were cast”; “…I did not notice the official mark in the ballots counted, nor did I notice anyone looking to ensure that the ballots had the official mark on them,” are statements which seem to suggest that a count had happened, he submitted. In the first case, he stated, what would suggest there was a count was the use of the word recount, and in the second it suggests that ballots were being shown and she was looking at them.
“The process took about five hours but we stopped counting for half an hour,” Mendes quoted her, noting that she said counting.
Mendes said under cross examination that Sutherland had said that what they had done was open the boxes, take out the envelopes, take what was in the envelope out, put it back inside, and put them back in the box.
She had said each took ten minutes, and they did all boxes one after the other, Mendes stated.
“How did that take five hours if that was all that was being done?,” he stated.
As the allegation was a serious one, of a serious dereliction of duty, Mendes noted that “cogent” evidence was required to prove it, and that the evidence wasn’t reliable.
“What are you advising the court to do?” the Justice Stanley John asked him.
“To reject her evidence,” the counsel stated. He claimed it to be “riddled” with inconsistencies.
The closing oral submissions for the election petitions case began on Wednesday and ended on Thursday.
This followed the written submissions which have already been filed by counsel to the Justice. Justice John, a former Trinidadian court of appeal judge, will give the decision on March 21.
The election petitions were filed in December 2015, and they contest serious irregularities in the way the elections were conducted in the North Windward and Central Leeward constituencies.
The petitions were thrown out in 2016, by Justice Brian Cottle, but a decision from the Court of Appeal restarted the court process in 2017, after they ruled that a statement made from Cottle had the appearance of bias.
The respondents in the case are the Supervisor of Elections Sylvia Findlay-Scrubb, presiding officers Veronica John and Kathleen Jeffers, returning officer Winston Gaymes and Ville Davis, the attorney general and successful ULP candidates Sir Louis Straker and Montgomery Daniel.
The petitioners are NDP candidates Lauron Baptiste for North Windward and Benjamin Exeter for Central Leeward.