Accept evidence of breach of secrecy – QC

Evidence submitted on the issue of breach of secrecy must be accepted by the court, as the respondents have not responded to the claim.

This is the position of the petitioners which was put forward by Stanley “Stalkey” John QC, lead counsel for petitioner Benjamin Exeter during oral submissions on Wednesday.

The submissions were intended to highlight or expand on arguments submitted to Justice Stanley John, former Trinidadian Court of Appeal judge, in the parties’ written submissions.

John explained that the pillars of the petitioner’s case were that there were defective ballots, unavoidable breach of secrecy, failure of the respondent to defend and failure of a paper trail.

However, the lead counsel seemed to direct his magnifying glass on the issue of unavoidable breach of secrecy.

Referring to respondent Winston Gaymes, the QC told Justice John, “The legal consequences of him not showing, the legal consequences of him not responding to the evidence, the legal consequences of no presiding officer, not a single one, having anything to say about this evidence…that your Lordship’s hands are tied. Your Lordship cannot be dismissive in much the same way that Mr Gaymes and the presiding officers have been dismissive.”

He said that no evidence was offered in response to the pleadings on unavoidable breach of secrecy, “none whatsoever.”

Therefore, the petitioners say that the respondents did not address whether the presiding officers unavoidably saw for whom voters voted.

The evidence of Shirlan ‘Zita’ Barnwell and Exeter were brought to the fore by John, who reminded that in Barnwell’s witness statement she observes that based on the way the crease was on the ballots at the final count, it seemed as if the ballots were folded in a certain way.

“The crease therefore would indicate conclusively whether they were folded in such a way as to obscure” the initials and stamp of the presiding officer on the ballot, Barnwell stated.

The petitioners claim that there was little space between the space that the voters put their mark, and the line which says do not fold beyond here. They contend because of the lack of space and the crease observed, there would have been a breach of secrecy in the effort of the officers to affirm that the stamp and initial they put on the ballot before voting was there, and therefore that that was the ballot they had issued.

John spoke of the photographs that Exeter took with his smartphone which show some ballots at the final count. Exeter also notes from his observations that the ballots would have to be unfolded to determine that the stamp and initials were there, therefore breaching secrecy.

Lead counsel for the 1st, 2nd and 4th respondents, Douglas Mendes SC, argued that there is no case for them to respond to. He also noted that the witness summary of Gaymes was not before the judge and should not be relied on by the petitioner.

“Just saying by itself Mr Gaymes did not turn up, just saying by itself the presiding officer did not turn up, does not prove anything if you yourself have not put into evidence,” a prima facie case, Mendes put forward.

“He must first have a case, before he can say that the absence of the witness buttresses it,” he reiterated.

He then went on to clarify his submission that there was no case submitted by the petitioner.

Looking at the wording of the pleadings of the petitioner, he noted that it said, “If the presiding officer folded the ballot to the line marked do not fold beyond the line,” they could only have verified that it was the same ballot by folding it back.

The use of the word “if” in the beginning shows that it is a presumption Mendes stated.

He then turned to the evidence of Barnwell, and noted that she said that the crease would indicate whether the official mark was obscured. He revised an exercise he embarked on in court wherein a photocopy of a ballot was folded in the same way that Barnwell described in the witness statement and the mark could still be seen. The petitioners have rejected that “contrived exercise” as they say this was one of hundreds of ballots.

In the case of Exeter, he stated, “Exeter interpreted the instruction do not fold beyond this line…he has interpreted it to mean fold right up to this line.”

The respondents contend that the ballots do not have to be folded up to the line which says “do not fold beyond this line”, that they could be folded below the line and comply with the regulation.

Mendes said Exeter didn’t give evidence on anything he saw, and that he said “I contend” and “it would be possible to determine” by inspection of the ballots if they were folded in the manner the petitioners said they would have been.

The petitioners have two other witnesses, one that says he saw the presiding officer lift the fold on “several occasions,” and another that says the presiding officer pulled back the fold an inch to herself, wide enough to see how they voted.

Mendes stated that this was the only evidence that the officer could have seen the way several persons voted.

He submitted that what the petitioner was saying was that out of 15 polling stations, one presiding officer could have seen the way someone voted on several occasions.