Justice Thom upholds DPP’s decision in the Afi Jack case

High Court judge Justice Gertel Thom, on November 15, upheld a decision by the Director of Public Prosecutions (DPP) to take over and discontinue private criminal complaints against Afi Jack, brought by Patricia Marva Chance.{{more}}

Both charges were brought in relation to Jack registering to vote in a constituency in which she was not ordinarily resident.

On February 25, 2011, leave was granted on the ex parte application of Chance to file judicial review proceedings in relation to the DPP’s February 3, 2011 decision to discontinue private criminal complaints numbers 739 of 2010 and 740 of 2010, which Chance had instituted against Jack, under section 22 (1) (c) and 22 (3) of the Representation of the People Act.

On March 4, pursuant to the said order of the court, Chance filed a fixed date claim in which she sought judicial review of the DPP’s decision. On March 23, the DPP made an application for an order that the order granting leave be set aside, the application for leave be dismissed and the fixed date claim be dismissed.

Chance had sworn an affidavit in support of the charges and also filed three other affidavits that are relevant to Jack, being that of Kaleen Edwards of Calder, Andrew Chance of Walvaroo and Alencia Edwards of Belair.

Kaleen Edwards, in her affidavit, said: “I recall on Thursday, 11 November 2010, I was at the C.W. Prescod Primary school when my attention was drawn by Patricia Chance to a Rasta lady who had her hair wrapped in a white head tie. This Rasta lady was having her picture taken by the Electoral Officer for registration purposes for East Kingstown. This lady, I discovered, was Afi Jack Hall, who does not reside in East Kingstown, but resides at Belair with her husband and kids.”

In the affidavit of Andrew Chance, he said that on December 13, 2010, he was an inside agent at polling station “EKL” at the Technical College in the East Kingstown constituency.

“….I was present in the said polling division where Afia Jack attended and voted. I approached her and asked her if she knew she was not qualified to vote because she does not live in the area, in the presence of the presiding officer, Nolwin McDowall. However, she ignored me and continued to vote…,” the affidavit read.

In Patricia Marva Chance’s affidavit, she said she was working as an alternate to the inside agent when she too saw Jack at the EKL polling station. “…Afi Jack arrive at the said polling station with her family members and joined the line of persons waiting to enter the polling station to vote. After a lengthy wait, I saw Mrs Jack go into the polling station, where she remained for some time until I saw her emerge from within the station.”

Alecina Edwards, in her affidavit said Jack was her neighbour and that she lives in Belair with her husband and four children. “…Mrs Jack and her family have lived in Belair next door to me continuously for over two years now. I say this because about two years ago, she and her children attended a neighbourhood children’s birthday party…,” her affidavit read.

In her ruling, Thom said, “The evidence of Kalean Edwards does not indicate that she knew Mrs Afi Jack prior to November 11, 2010. In paragraph 1 and 2 of her affidavit, she refers to Mrs Jack as a Rasta lady. There is no evidence in the affidavit of Edwards that she knew the husband of Mrs Jack, that she is familiar with the Belair area, that she visits there regularly and she is familiar with where Jack lives and during the requisite qualifying period of three months Mrs Jack was living at Belair.”

In relation to Andrew Chance’s affidavit, the learned judge said his affidavit does not show that he knew Jack prior to the election day. “His affidavit does not show that he is familiar with the household of persons in the “EKL” polling division, that he was familiar with all of those persons during the requisite qualifying period of registration of three months,” the judge said.

Chance’s evidence is that he asked Jack if she knew she was not qualified to vote in the area and she ignored him.

“Voters are not expected to answer questions or respond to comments of political agents inside a polling station. In fact, under the House of Assembly Election Rules, political agents have no right to ask voters any questions. A challenge of a voter must be made to the presiding officer. Questions can only be put to voters by the presiding officer and further questions that can be put are restricted,” Thom further pointed out.

Thom said Marva Chance’s affidavit contains no evidence pertaining to where Jack resided during the requisite period. “Her affidavit shows that Mrs Jack and members of her family voted at Polling Division “EKL”.”

She also ruled that the evidence of Alencia Edwards is contrary to the evidence that the DPP deposed he received from the Supervisor of Elections. “This is the gravamen of Ms Chance’s case. The fact that the evidence before the DPP is contradictory and the DPP decides not to proceed with the prosecution of the matter would not make his decision irrational or unreasonable,” Thom ruled.

The DPP in his affidavit said that on February 3, 2010, he received a letter from the Supervisor of Elections which said that “no objection had been made to the Supervisor of Elections regarding the registration of Mrs. Jack”. The letter also said that the Supervisor visited Jack’s mother at her workplace and interviewed her as to where Jack presently resides. The Supervisor said, based on what Jack’s mother said and the evidence provided by the Registering Officer and the Assistant, “I instructed the Production Unit to effect the transfer…”

Thom, in her judgement, also ruled that Alenica Edwards’ statement lacks details of Jack’s residence during the specific qualifying period before registration.

“… I find that there is no realistic prospect of success of judicial review of the decision of the DPP to discontinue being irrational. This is a clear case where leave ought not have been granted,” Thom ruled.

Thom ordered that claim number 76 of 2011 be dismissed and the order granting leave to seek judicial review and dated February 25, 2011, is set aside and the application for leave dismissed.