No grounds shown why application should be granted

High Court judge Brian Cottle has described as a “fishing expedition” an application made by New Democratic Party (NDP) candidate Benjamin Exeter for the production and inspection of documents from the Central Leeward Constituency in the December 9 general elections.

In refusing Exeter’s application, the judge said Exeter had not shown any grounds why his application should be granted.{{more}}

“I do not consider that the applicant has shown any grounds, far less any strong grounds, to grant the application.”

On December 17, Exeter filed an application in the High Court seeking that the judge order (1) the Supervisor of Elections to produce forthwith all ballot boxes in her custody in the constituency of Central Leeward, for which constituency the applicant stood as candidate. The boxes are to be delivered to the Registrar of the High Court; (2) that the said ballot boxes be opened by the Registrar in the presence of the Applicant and the Applicant be permitted to inspect all the ballot papers contained therein; (3) that the sealed packets containing counterfoils in the ballot boxes be opened by the Registrar in the presence of the Applicant and the Applicant be permitted to inspect and open the packets of counterfoils.

Cottle, in his judgement issued December 28, however, said no suggestion had been made that there exists any danger that those documents presently in the custody of the Supervisor of Elections are in any way at risk of being tampered with.

He quoted from Halsbury’s Laws of England (4th Edition Re issue) Vol. 15 at paragraph 851 which said:

“Strong grounds for making an order must be shown and the court must be satisfied that the application for it is made in good faith and will rarely, if ever, grant it unless a petition or prosecution has been instituted or is about to be instituted and it is shown to be really required.

“One example of the approach a court takes in consideration this question can be found in Lancashire, Darwen Division Case (1885) 2 TLR 220 where the court refused to allow an inspection before an election petition was lodged. Denman J. considered the application to have been in the nature of a fishing expedition. That case can be contrasted with Gough v London Sunday Newspaper (2003) 1 WLR 1836 where there was an admitted error in the count of the votes. An entire packet of postal votes had been overlooked. There the court felt that grounds existed for permitting an inspection to see whether or not the presentation of an election petition was merited.

“In the case before this court there is no issue of overlooked votes. There has been no complaint about the preliminary vote. There has been no complaint about the accuracy of the count. The applicant was represented at the final count. He now wishes another opportunity to inspect the ballots ‘to conclusively assess the validity of the final count’.”

Justice Cottle said attorney for Exeter Stanley John QC said that Exeter and his legal representatives had objected to certain disputed ballots at the final count, those described as 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 these ballots would have affected the outcome of the election. This to my mind describes the present application succinctly. The applicant 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 these 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 epitomizes a fishing expedition. The court is also concerned about the application to inspect the counterfoils as well as the ballots. If this if allowed, it will be possible for the applicant to identify individual voters and see how they voted.”

Cottle also said he felt that to grant the application as filed 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.”

In a postcript to his judgement, Cottle noted that after the draft of his decision was completed, the court was informed by telephone that Exeter had filed at the Court Office, late on the afternoon of December 24, certain written submissions.

The judge said he had not had the benefit of reading these before this decision was completed.

Exeter was represented in the matter by Maia Eustace of the law firm Cato and Cato and Queen’s Counsel Stanley John. The supervisor of elections, who was the respondent in the matter, was represented by attorneys Richard Williams, Grahame Bollers, Parnell Campbell QC and Anthony Astaphan SC.

Counsel for Exeter Maia Eustace and Stanley John told SEARCHLIGHT yesterday that they were awaiting instructions from their client as to the way forward.