OECS Justices – Frederick deliberately misled court

The justices of the OECS Court of Appeal are of the view that Senator Vynnette Frederick intentionally gave evidence which was untrue in a complaint she brought against Prime Minister Dr Ralph Gonsalves, following the December 2010 general elections.{{more}}

In a judgement delivered on May 31, 2012, Justices Janice M. Pereira, Don Mitchell and Tyrone Chong QC set aside an earlier decision of Justice Gertel Thom in favour of Frederick, and allowed the appeal of Chief Magistrate Sonya Young, who had issued a Certificate of Refusal to Frederick in January 2011, when Frederick had filed two criminal complaints against Gonsalves.

The complaints were made under Section 51, Subsection 3 of the Representation of the People Act and related to comments Gonsalves was alleged to have made at a public meeting of the Unity Labour Party at Park Hill on August 29, 2010.

The Justices of Appeal said that the evidence of the chanting of the word “lesbian” during that political meeting, clearly influenced Justice Thom’s decision to refuse to set aside the without notice order obtained by Frederick.

“This evidence having been found to be untrue, the learned trial judge erred in refusing to set aside the order granting leave for judicial review of the Chief Magistrate’s refusal to issue the summonses against Dr Gonsalves.

“The learned trial judge erred in principle in not setting aside the without notice orders, having found that there was a material non-disclosure by Ms Frederick, which was intentional,” the judgement said.

When the Appeal Court sat last month, the Court granted the Chief Magistrate’s application to admit as fresh evidence, the transcript of the actual tape of the speech made by Gonsalves at Park Hill on August 29, 2010.

This was the speech which Frederick complained, in relation to words allegedly spoken by Gonsalves at that meeting. Frederick stated in an affidavit on June 16, 2011, that the context in which Gonsalves used the words “tomboy” in relation to her, must be viewed against the backdrop of chants from other persons in attendance at the political meeting of the word “lesbian”. It was only after those chants, she deposed, that Gonsalves used the word “tomboy” in describing her.

The transcript produced by the Chief Magistrate showed that the word “lesbian” was neither used nor chanted at that meeting. The Chief Magistrate also made the point that the tape would have been in the possession of Frederick and her lawyers prior to her swearing that affidavit and lodging her criminal complaints.

The Chief Magistrate also asserted that Frederick’s complaint was “persisted in and not corrected, until 26th May 2012,” just before the sitting of the Appeal Court.

Frederick, a lawyer by profession, swore two additional affidavits, one of May 23, 2012, in which she said that she had listened to the tape and that when Dr Gonsalves made the comment, she heard persons in attendance saying “lesbian” and “she love woman”, among other things. Frederick then swore an affidavit of May 25, 2012, in which she stated that the word “lesbian” was “inadvertently inserted” in her affidavit of May 23, 2012.

“She made no mention of her earlier assertion in her affidavit of June 16, 2011, on which the learned trial judge relied, that the word ‘lesbian’ had been chanted at that political meeting in question,” the judgement said.

Counsel for Frederick objected to the introduction of the new evidence, on the basis that there had been no complaint made by Frederick to the Chief Magistrate about the chanting of the word ‘lesbian’, but the complaint had been directed at the words used by Dr Gonsalves.

“Having considered the affidavits of Steven Williams (counsel in the law firm Williams and Williams), with regard to the tapes, the correspondence passing between the attorneys for the parties, and the affidavits of Ms Frederick, we consider that it is in the interests of justice, and in accordance with the Ladd v Marshall principles, to admit the transcripts into evidence. The result is that the complaint against Dr Gonsalves falls away by Ms Frederick’s own admission.”

Frederick was represented by Keith Scotland, Nicole Sylvester and Kay Bacchus-Browne, while the Chief Magistrate was represented by Anthony Astaphan SC, Grahame Bollers and Richard Williams.

Lawyers for Frederick say they intend to appeal to the Privy Council.