tribune242:
LEAD attorney for FNM candidate Dr Duane Sands, Thomas Evans QC, yesterday argued in election court that of six protest votes cast in the Elizabeth by-election three must be automatically thrown out as the individual's names did not appear on the Elizabeth register on the day of the election.
"The evidence shows that three voters were not registered in Elizabeth. Two were in the adjacent Yamacraw and one was in Fox Hill. These voters plainly are not entitled to vote in the Elizabeth constituency and no question of retifcation of register with any of them," Mr Evans told the election court.
He further argued that in addition to these three votes - that of Voter A, D and F - the vote of Voter B should not be counted as his date of birth on his driver's licence which he sought to use to vote differed to that on the register and he never appeared before the court to explain why.
This left two protest votes, that of Voters C and E, which Mr Evans agreed should be counted. Philip Davis, lead attorney for PLP candidate, Ryan Pinder, had proposed on Wednesday that all five protest votes cast for his party's candidate should be upheld as valid.
But Mr Evans contended that the court can only consider counting the votes of those voters for whom clerical errors or omissions caused them to have to cast their ballot on a coloured or protest ballot, not those who did not appear on the register at all as the register should be consider "conclusive" on the day of the election.
He further stated that for the court to "stray" into the question of whether certain voters were resident in the constituency or not would cause the court to "overstep" its mandate in this particular matter.
The attorney made these comments as he gave his final submissions to the court on behalf of his client, FNM candidate Dr Duane Sands. Some had expected that once Mr Evans concluded his submissions today that judges would leave the court to deliberate and come to a conclusion on the matter as early as today. But yesterday when Mr Evans took his seat having made his final submissions relative to the votes, lead attorney for PLP candidate Ryan Pinder, Philip Davis stood to counter some of the points he had made and this is expected to continue tomorrow when the court resumes at 10.30am.
At present it is not entirely clear when a conclusion to the case will come, and it is possible that the matter may drag on until next week.
In the February 16 by-election in Elizabeth, Dr Duane Sands won 1,501 ordinary votes and Mr Pinder got 1,499. Mr Pinder made an application to the court to determine the validity of five "protest" votes cast for him, to see whether they could be added to the official vote count and therefore change the outcome of the election, making him the representative for the constituency.
Mr Evans spoke at some length about Voter A, whose vote he ultimately said should be discounted.
That voter claimed she registered at a foodstore then gave evidence to the court that she found that she had been "put in the wrong constituency" (Fox Hill not Elizabeth). She said she and some friends and family members net with Parliamentary Commissioner Errol Bethel to have the situation rectified.
However, Mr Evans drew that claim into question, and told the court he was "sorely tempted to ask you to dismiss" the evidence that she met with Mr Bethel and sought to have the discrepancy changed.
The attorney said this was because Errol Bethel was not questioned on this alleged meeting while he gave his evidence and because there were varying and significant differences between the evidence of voter A and other supporting witnesses connected to her, as well as between her own evidence at different times.
He noted that Mr Bethel said that he had no record of Voter A having attended his office to change her voter's card. There was no documentary evidence and her oath was unamended, said Mr Evans.
"Normally if a change was made it would be reflected in all of the documents relevant to that voter," said Mr Evans.
"The flood or accumulation of contradictions in the evidence is irrefutable proof of their lack of credibility," he said of voter A and associated witnesses.
"This court is invited to find that Voter A never made any such application or attendance at the Parliamentary Registrar's office,that Voter A voluntarily placed herself in the Fox Hill constituency by giving herself the address North Pine Barren Road and that her vote should not be allowed," proposed Mr Evans.
He added the inconsistencies raise the possibility of her voter's card being fraudulent. "I'm not saying anyone is guilty of fraud, but it is a possibility."
"We would say that from all the evidence available that the voter's card may very well not be genuine."
"If it is believed, you may direct further investigations along those lines."
In relation to Voter B, who was made to cast a protest vote after he could not produce a voter's card but only a driver's license which had a birth date upon it which differed from the date of birth on the register, Mr Evans said that because the voter has not appeared before the court or provided any evidence or explanation for the differences his vote should not be allowed.
"We have no evidence to show that the holder of the license is the same person on the register," said Mr Evans.
In relation to voter C, Mr Evans said that there was an inconsistency between the date of birth on her driver's license and on the counter foil and register. However, in this case Mr Evans said his client does not "suggest it can't be counted."
In relation to Voter D, Mr Evans said she does not live in the Elizabeth constituency and is registered in Yamacraw. "It follows that her vote can't be counted," he said. Voter D was removed from the register by the parliamentary commissioner.
Voter E, Mr Evans said she was on the Elizabeth register and had a voter's card and therefore she was "no doubt entitled" to vote. He said that the question of whether she was in fact an Elizabeth resident was a separate question, but could not be determined as part of this court matter.
With regard to Voter F, he said her vote should not be counted as she did not have a voter's card or appear on the Elizabeth register.
Mr Davis, beginning to respond to Mr Evan's submissions, said that if the court accepts the assertions made by Mr Evans it would "have startling results."
The attorney charged that the inconsistencies in the testimony of Voter A and other associated witnesses in fact make their evidence more believable.
If all of the witnesses had given the same story, one would suspect they had been "coached," he said.
"One has to look at the inconsistencies in regard to the passage of time," Mr Davis said.
"If a husband doesn't remember the date of his marriage, does that mean he didn't get married?" he asked.
March 19, 2010
tribune242
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