Adams v Arthurton et Al

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Robotham, C.J.
• Judgment Date: 12 April 1988
• Neutral Citation: MS 1988 CA 1
• Docket Number: Civil Appeal No. 2 of 1987
• Date: 12 April 1988

Adams

and

Arthurton et al

Robotham, C.J. Bishop, J.A. Moe, J.A.

Civil Appeal No. 2 of 1987

Court of Appeal

Elections - Election petition — Political election — Petition to declare election null and void — request for scrutiny of ballots —

Held: Request failed as no evidence to justify commencement of criminal prosecution for election offence – Appeal dismissed.

Robotham, C.J.

1 On 25 August 1987, a general election for the purpose of electing members to the Legislative Council of Montserrat was held and in the Constituency of Plymouth, one Vernon Jeffers was duly elected and returned.

2 On 10 September 1987, Percy Arthurton, an unsuccessful candidate in the said Plymouth Constituency brought an election petition seeking to have the election of Jeffers declared irregular, null and void on the ground that a number of ballot papers on which voters registered their votes, did not have the names of the candidates in alphabetical order, indicating that

• (a) more than one or different printing plates were used in the preparation of the ballot papers;

• (b) the ballot papers for the said Plymouth District were tampered with at some time and place prior to the date of the election by a person or persons unknown.

3 Further that such tampering (a) tended to confuse the minds of voters or marginally literate voters that they should put their mark at the top or in the middle as the case may be and (b) impeded or prevented the fair exercise of the franchise by voters, contrary to law.

4 The Petitioner Arthurton prayed for scrutiny of the ballot papers used and unused, and in the event that any of them were found to be irregular as contended, that the election be declared null and void.

5 Nine affidavits in support of this petition were filed by the respondents all in identical form. Para. 1 - gave the name of the deponent, and stated that he was a registered voter; Para. 2, that he voted at the election, and para. 3 read:-

“The ballot paper which was handed to me and on which I voted had the names of the candidates for the said Electoral District set out as hereunder appearing and not in alphabetical order:

• 1. Bramble

• 2. Arthurton

• 3. Jeffers

6 The nine (9) affidavits then concluded with the usual attestation clause. There was absolutely nothing in these affidavits to support any of the allegations made in the petition filed on behlaf of Mr. Arthurton.

7 Scrutiny of the ballots having been asked for, an order of a Judge of the Supreme Court to that effect had to be sought in acordance with section 78 of the Constitution and Elections Ordinance Cap. 153. That section reads:-

“78(1) The Supervisor of Elections shall keep the election documents……. in safe custody, and shall allow no person to have access to them;

Provided that, if an election petition has been presented questioning the validity of any election or return, the Supervisor of Elections shall,on the order of a Judge of the Supreme Court, deliver to the proper officer of that Court the documents relating to the election that is in dispute.

78(2) No such election documents in the custody of the Supervisor of Elections shall be inspected or produced except on the order of a Judge of the Supreme Court; and an order under this subsection may be made by any such Judge upon his being satisfied by evidence on oath that the inspection and production of such election documents is required for the purpose of instituting or maintaining a prosecution for an offence in relation to an election or for the purpose of a petition which has been filed questioning an election or return. (Emphasis above added).

8 In response to the affidavits filed by the nine voters Howard Fergus the Supervisor of Elections, swore that the ballot papers were printed at his request and in accordance with the law, and that to the best of his knowledge information and belief they were in compliance with the law. The returning officer for the constitutency of Plymouth Joseph Daniel swore that he checked the ballot papers to be used in the Plymouth Constituency and that to the best of his knowledge, information and belief they were in the form prescribed by law.

9 Redhead J. heard the application for scrutiny of the ballots on 10 September, and refused the application.

10 On the affidavits as they stood, lacking not only flesh, but bone, I hardly see how he could have done otherwise. Indeed there was no appeal from his decision, and certainly none by the petitioner Percy Arthurton.

11 One would have thought that there being no appeal by the party aggrieved, the matter would have ended there, but alas this was not to be. There was intervention by the press, reports in which goaded the Honourable Attorney General to make an application on his own behalf for an order for the inspection of the ballot boxes. Mr. Weekes in the course of his submissions before us conceded that some of the articles were vicious and scathing and subversive of justice.

12 I say the Honourable Attorney General was goaded into doing this, as that is the impression which must of necessity have been left with anyone reading the three articles, and his affidavit in support of the application. In his application he now sought to rely on the same 9 affidavits which he resisted in the election petition. The trial judge questioned the propriety of this.

13 Para. 11 of his affidavit reads:-

“Notwithstanding the Order of Mr. Justice Redhead, the allegations are being persisted in, as evidenced by a copy of the local newspaper, the “Reporter” of Friday, 25 ^th September 1987, exhibited herewith as exhibit “E”.”

14 Para. 12

“That the allegations in the affidavits and circulating in the community, at large, tend to suggest the commission of criminal offences.”

15 Para. 13

“That in view of the foregoing, I conceive it my public duty to make such enquiries and institute such prosecutions as may be necessary, in pursuance of section 78 of the Constitution and Elections Ordinance of Montserrat. These courses of action can only be properly taken if the ballot boxes are opened at such time and place and under the supervision and in the presence of such persons as the Court may determine.”

16 A breakdown of these 3 paragraphs reveals the basis of the application as:

• (1) the persistence of allegations of impropriety;

• (2) the existence of allegations tending to suggest the commission of criminal offences:

• (3) a conception of his public duty to make enquiries, to be followed by

• (4) institution by him of such proceedings as may be necessary.

17 I have no doubt that the Honourable Attorney General was pursuing this course with utmost good faith and noble motives but one must ask what prosecution when the application was filed was he about to institute or maintain? The answer is none, and there would be none unless per chance the scrutiny of the ballot boxes revealed that there was an offence for which a prosecution against someone could be launched. In short his application was no more than a fishing expedition and outside the provisions of section 78(2).

18 Instituting a prosecution is the commencement of proceedings and takes place when a complaint is laid before the Court (Stroud's Judicial Dictionary, Vol. 3, 4 ^th edition - 1384,) Sec. 78 contemplates that there must be evidence before the Judge to justify the commencement of a criminal prosecution for an offence relating to an election, or for the purpose of a petition which has been filed.

19 Maintaining a prosecution means to support or carry on one which has already been brought. (Stroud's Vol. 3 1594.)

20 ...