The judgement of Justice Thom and the need for an expeditious and successful appeal - Part III

The Petitioners have argued that during the political campaign both Mr. James and Mr. Joseph raised questions at political meetings warning that Mr. Skerrit did not qualify to be nominated and elected as members of the House of Assembly of the Commonwealth of Dominica because he was the holder of a French passport.

There were several radio and media statements to that effect to which the Defendants did not offer a denial. The Court concurred with Mr. Astaphan S.C that the media statements made by the Petitioners were false and the Defendants did not submit at any time that they were the holders of a French passport. Therefore, the Court could not have drawn a reasonable inference from the Defendants’ statements.

Mr. Astaphan based his argument on the well established legal principle, as accepted in this case, that he who asserts must prove. It is my humble opinion that the Petitioners did not fail to prove their case due to the lack of trying.

The simple fact remains that they were precluded from leading appropriate evidence before the Court and the Court failed to exercise its inherent jurisdiction in searching for truth and delivering justice in defense of the Dominican constitution. Even where the Court was expected to draw reasonable, commonsense inferences from the circumstantial evidence, it failed to do so.

Therefore, the case was decided on the basis that the Petitioners were disallowed to present evidence, which the judge claimed were not led to prove the case. In other words, the Court appeared to be uninterested in examining the evidence that it was well aware would have caused it to reach a different conclusion in this matter. The Court unfortunately blindfolded itself, according to Justice Irving Andre, in giving what ought to have been blind justice.

Mr. Mendes S.C argued that the failure of the Defendants to testify at the trail and to contradict the inference that has arisen, confirmed and strengthened the inference and should have entitled the Court to find that it was more likely than not that the Defendants did obtain and were in possession of the passports that they obtained on their own volition.

The court, however, accepted Mr. Astaphan’s argument that the Defendants had no case to answer and therefore no need to give any evidence.

It is my humble opinion that the Honourable judge protected the Defendants by preventing them from taking the stand in their own defense and to give evidence in the search of truth. The Judge concurred with Mr. Astaphan S.C that there was insufficient evidence to establish even a prima facie case to which the Defendants had to respond.

It is interesting, however, that the cases cited in support of her findings (i.e., Mc Queen v Great Western Railway Company 1987, 10 QB.569, O’Donnell v Rochard 1975, VR 916 and T.C. Coombs v IRC, 1991, 2 A.C), all seem to suggest that if a prima facie case is made out capable of being displaced and the party against whom it is established might, by calling a particular witness or by producing particular evidence and he omits to present evidence to displace that prime facie case, then an appropriate inference can be drawn from the omission or refusal to present that evidence.

In the case of O’Donnell v Rochard, the Court stated that anyone on whom the burden of proof is placed must always establish a prima facie case on such issue (assuming that they are allowed to adduce the appropriate evidence in establishing the prima facie case). In the instant case, the Petitioners appear to have made a strong prime facie case of national and constitutional significance.

They were not relying on the Defendants to fill in the gaps in establishing a prima facie case as alleged by Mr. Astaphan and agreed by the judge. The Petitioners were merely seeking to have the Defendants provide evidence to assist the Court in its search for truth and justice as demanded by the constitution and people of the Commonwealth Dominica.

In that regard, I do not hesitate to say that the Court appeared to have failed in the fair execution of its function.

As Lennox et al continue to argue, even Justice Thomas was satisfied that a prima facie case was established before all the evidence of the Petitioners was considered by Justice Thom’s Court. It would be interested to see how this matter will be treated on appeal Certainly, not only did Judge Thom refused to allow relevant and appropriate evidence to be presented but she failed to give appropriate weighting to the evidence that was adduced in making a prima facie case, to the extent that this negatively influenced the outcome of the case.

The letter to constituents of Vieille Case

The Petitioners submitted that on 17 December 2009, Mr. Skerrit caused several copies of a letter to be distributed in the community of Vieille Case in which he allegedly admitted to having a French passport.

The letter was in response to the Notice of Disqualification in the Sun Newspaper of 14 December 2009, which specifically stated that Mr. Skerrit was in possession of a French passport. Counsel for the Petitioners submitted that the letter amounted to an admission.

In response Mr. Astaphan submitted that the letter does not state that it was a response to the Notice of Disqualification published in the sun Newspaper as there was no reference to the Notice in the letter

Justice Thom agreed with Mr. Astaphan’s submission that the letter did not make a specific mention to the Notice of Disqualification in the Sun Newspaper, albeit one could well argue that the Judge could have drawn a reasonable inference that it was in response to the Notice based on the evidence before the court.

Contrary, to statements made by Lennox Linton following the judgment, I concur with the findings of the Judge that when the letter is read carefully, it shows that Mr. Skerrit was merely outlining what he understood the allegations against him were in the media and by certain persons. Like the Judge, I am satisfied that Mr. Skerrit did not admit to have a French passport but was merely repeating the allegations made against him.

I have heard several statements in the media by Mr. Lennox Linton and officials of the UWP that the case before the High Court was reduced to the bare bones of its simplicity for trial based on the finding of Justice Errol Thomas in paragraph 173 of his August 2010 ruling that Annex C of the said application, a letter to electors, dated 17 December 2009, Mr. Skerrit referred to "my possession of a foreign passport".

According to Lennox et al, it is their understanding that Justice Thomas was indicating that given the provisions of Section 32.1.A of the Constitution and having regard to the February 2009 Appeal Court decision in Jamaica of Dabdoub v Vaz, one could not be confessing to be in possession of a foreign passport as an adult while at the same time claiming to be validly nominated for an election to the parliament of Dominica.

Commentators like Linton argued that the basis for the case before the Justice Thom, therefore, originated from paragraph 193, of Justice Thomas judgment in which he states:

“Accordingly, the applications to strike out… paragraph 7 of the Maynard Joseph Petition are hereby refused. Therefore, Petition…DOMHCV2010/007 will proceed to trial on the sole issue of disqualification for nomination and election…”

There is general agreement with Linton et al thatthe foreign passports of Messrs Skerrit and St Jean were very crucial documents for examination by the Court in what should have been a thorough, truthful and expeditious determination of the Defendants’ qualification for nomination on 2 December 2009 and their subsequent election on 18 December 2009.

However, I fail to see that the evidence before Judge Thom was (by itself) an implied or expressed admission by Mr. Skerrit that he was in possession of a French passport. I am, however, very sympathetic to the view that having submitted an application to the Court for disclosure of the passports allegedly obtained and in the possession of the Defendants, Justice Thom erred in her ruling in concluding that the Court had no jurisdiction to order disclosure of the passports.

According to our former Commissioner of Police, in one word-this seemed to have been “utter rubbish.” This issue must be strongly fought at the level of the Appeals Court courtesy the narrow view of the law in this case.

Faced with the heavy burden of proof, the denial of the Petitioners’ application for a subpoena compelling the Defendants to produce their passports placed the Petitioners in a difficult position, especially based on a dubious defense of “self-incrimination”, in respect of which the Defendants required and obtained the protection of the Court.