Harre CJ
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAUSE NO. 689 OF 1996 IN THE MATTER OF THE ELECTIONS LAW (1995 REVISION), as amended And in the matter of the Election for the Electoral District of George Town held on the 20th day of November, 1996 BETWEEN: BERNA LAVONNE THOMPSON-MURPHY FIRST PETITIONER AND: ALFRED LAWRENCE THOMPSON SECOND PETITIONER AND: LINFORD A. PIERSON RESPONDENT RULING given by His Lordship Chief Justice G.E. Harre, at the Town Hall, on Thursday, the 6th day of March, 1997, in George Town, Grand Cayman. APPEARANCES: On behalf of the FIRST & SECOND PETITIONER: Mr. P. LaMontagne, QC instructed by Mr. O. Merren of Orren Merren & Company On behalf of the RESPONDENT: MR. R. MAHFOOD, QC instructed by Mr. A. McLaughlin of Charles, Adams, Ritchie & Duckworth On behalf of the ATTORNEY GENERAL: The Solicitor General, Mr. I. Archie RULING Before I start this ruling, I want to give some indication to the general public of the point which this matter of the Election Petition by Mrs. Berna Thompson-Murphy and Mr. Alfred Thompson has reached in view of the extensive reporting and the public interest in relation to this case. The arguments which I have been hearing and on which I am about to rule concern points of law. I have up to now have had no evidence leading to any conclusion about the truth or substance of the various comments which Mr. Linford Pierson acknowledges he made in his speech on the 18th of November, 1996 in this Town Hall and which are complained of in the Election Petition. Nothing which I now say is an expression of opinion about that at all. What I shall in a few moments be expressing is my view on the interpretation of the law and the position of the petition in relation to that. Part IV of the Elections Law (1995 Revision) is concerned with election petitions and Part V with election offences. Each such offence carries a criminal penalty. The general ground of the complaint on which an election petition may be presented under Section 54 in the Law to the Grand Court is the undue election or undue return of a 1 member of the Legislative Assembly. The present petition 2 seeks the following determinations by this Court: 3 1: That the said Linford A. Pierson was not duly 4 elected and that his election was void in accordance with 5 the provisions of Section 56 of the Elections Law 6 (1995 Revision). 7 2: That the said Berna Thompson-Murphy was duly 8 elected and ought to have been returned and, therefore, 9 that the return for the electoral District of George Town 10 be altered accordingly in accordance with the provisions 11 of Section 58(2) of the Elections Law (1995 Revision). 12 3: That the Petitioners may have such further or 13 other relief as may be just. 14 Sections 56 and 58 of the Elections Law are as 15 follows: 16 56: 17 "If a candidate who has been elected is 18 certified by the Judge who tried the 19 election petition questioning the return 20 or election of such candidate to have been 21 personally guilty or guilty by his agents 22 of any corrupt or illegal practice his 23 election shall be void." 24 58: 25 "(1) Every election petition shall be tried in the same manner as an action in the Grand Court by a Judge sitting alone. (2) At the conclusion of the trial the Judge shall determine whether the member of the Assembly whose return or election is complained of or any, and what, other person was duly returned and elected, or whether the election was void, and shall certify such determination to the Governor, and, upon his certificate being given, such determination shall be final; and the return shall be confirmed or altered, or a writ for a new election issued, as the case may require in accordance with such determination. The first of a number of questions of interpretation with which I must deal is the meaning of "undue election". That expression is not defined in the Law, but the following reference to the Australian case Re Surfers' Paradise Election Petition, which is to be found in the 1975 Queensland Reports at page 114 is pertinent. An observation of Mr. Justice Dunn on the matter is to be found in the publication: "Words and Phrases Judicially Defined, with reference to an enactment similar to our own to the relevant extent. He said this: "The act contains no definition of the expression 'undue election', but the words take their meaning from the history of disputed elections. An undue election is one where there has been a departure from the prescribed method of election or one in which there has been misbehaviour or management of a kind which history has shown may result in the selection of a candidate otherwise then by the will of the constituency. The expression does not apply to an election in which the prescribed method of election has been followed, but that method is unlawful." I adopt that passage from the judgment of Mr. Justice Dunn. It is the will of the constituency which prevails. The allegations against Mr. Pierson are contained in paragraph 5 of the Election Petition. They are these: That the said Linford A. Pierson was personally guilty of illegal practices at the said election by making and/or publishing, before or during the said election, certain false statements of fact in relation to the personal character or conduct of certain candidates at the said election for the purposes of affecting the return of such and/or other candidates contrary to the provisions of Section 71(1)(d) of the Elections Law, (1995 Revision), in that, on the 18th day of November, 1996, he made and published at the Democratic Alliance's public meeting in the George Town Town Hall, (which was broadcast live over CITN Cayman Channel 27 television and also re-broadcast over CITN on the 19th of November, 1996) the following false statements of fact: a. 'The Housing Development Corporation was providing a very useful service to the people of this country, but Mr. Mckeeva Bush chose to sell it to the bank in which his colleague Mr. Truman Bodden is a shareholder, a director and an officer. Was the people's interest being considered when this sale was made? And the question tonight is: Who benefited? A more serious question is: Could this be regarded as corruption?' b. 'Perhaps Mr. Tom Jefferson could attempt to regain his credibility by explaining to the public all the circumstances surrounding his hit-and-run accident on the West Bay Road. The question remains: Was Mr. Jefferson drunk? And secondly: Did he refuse to take a breathalyzer test? c. 'Can you trust a candidate who would tear her father apart just to be elected? If she did that to her father, what would she do to you?' Although the said Berna Thompson-Murphy was not mentioned by name in the circumstances of this public meeting, the person making the statement, the person being attacked and the George Town Town Hall as well as the television audience being addressed, there was no doubt that the real and the true meaning of these false statements was intended to impugn the said Berna Thompson-Murphy and that this was the real and true meaning placed upon these false statements by persons comprising the said audience." Mrs. Berna Thompson-Murphy and Mr. Truman Bodden were candidates at the election held on the 20th of November, 1 1996 for the Electoral District of George Town. 2 Mr. Thomas Jefferson and Mr. McKeevera Bush were candidates 3 in the Electoral District of West Bay. 4 Section 71(1) (d) of the Elections Law, 5 (1995 Revision), contravention of which is the expressed 6 ground of the complaint against Mr. Pierson, provides 7 that, subject to subsections (2) and (3) of the section, 8 every person who- 9 "himself or as a director of any body or 10 association corporate, before or during an 11 election for the purpose of affecting the 12 return of a candidate at the election, 13 makes or publishes any false statement of 14 fact in relation to the personal character 15 or conduct of the candidate is guilty of 16 an illegal practice and liable on summary 17 conviction before the Magistrate to a fine 18 of $500 or to imprisonment for six months 19 and in addition shall be incapable during 20 a period of five years from the date of 21 conviction of being registered as a voter, 22 or of voting at any election, or of being 23 a candidate for election to the Assembly 24 or if elected before his conviction, of 25 retaining his seat as a Member." 1 It is not alleged that Mr. Pierson did anything 2 otherwise than personally, so subsection (3) of Section 3 71, which relates to acts of an agent, is irrelevant. 4 Subsection (2), however, reads as follows: 5 "A person charged under subsection (1) (d) 6 shall not be guilty of an illegal practice 7 if he can show that he had reasonable 8 grounds for believing, and did in fact 9 believe the statement he made to be true." 10 That subsection is invoked by Mr. Pierson as part of his 11 defence. 12 The heading to Part V of the Elections Law indicates 13 that it is concerned with election offences. It is penal 14 in nature and contains 14 sections. Some are described 15 marginally as being definitions, others are not. That 16 seems to me to make no difference. Section 71 as a whole 17 seems to me to be no less a definition of the kinds of 18 conduct which constitute offences under that section and 19 are described generically as illegal practices because the 20 word "definition" does not appear in relation to it. 21 In any event, the real thrust of the Respondent's 22 argument, with which I shall deal in more detail later in 23 this judgment, is not that there is no definition of 24 illegal practices in the Law, but that the definition is 25 not one which can be transposed from the penal provisions 1 of Part V to Part IV which deals with election petitions 2 based on complaints of undue election or undue return of a 3 member of the Assembly. 4 Before going further into the arguments about that, I 5 need to give my reasons for the view that an election to 6 which an election petition relates is an election for the 7 return of a candidate or candidates for a particular 8 electoral district as constituted under section 5 of the 9 Law. Among these are the electoral districts of George 10 Town and West Bay. 11 Arrangements for elections are described in Part III 12 of the Law. For the purpose of every election, whether it 13 be a general election or a by-election, Section 18 14 provides that the Governor shall issue writs addressed to 15 the returning officers of the respective electoral 16 districts for which members are to be returned. 17 "Election" is defined in Section 2 as meaning: "An 18 election of a member or members to the Assembly." That 19 does not really help as some electoral districts return 20 more than one member. 21 However, the whole tenor of the arrangements for 22 election set out in Part III of the Law and the provisions 23 with regard to registration of voters, appointments of 24 officers and compilation of lists of voters lead to the 25 view which I have just expressed. 1 Indeed, the petition itself is described as being: 2 "In the matter of the election for the 3 Electoral District of George Town, held on 4 the 20th day of November, 1996." 5 Three propositions have been argued on behalf of the 6 Respondent. They are conveniently summarised as a 7 conclusion in his written submissions and are these: 8 1: The Election Petition is fatally 9 flawed and should be dismissed since it 10 has not alleged any illegal practice of 11 the type contemplated by Section 56 of the 12 Elections Law, namely an illegal practice 13 committed in reference to an election for 14 the Electoral District of George Town done 15 for the purpose of promoting or procuring 16 the election of the Respondent. 17 2: Alternatively, paragraph (2) of the 18 prayer of the petition should be struck 19 out since there is no basis in the 20 petition upon which the Court can 21 determine that the First Petitioner was 22 duly elected. If it is found that the 23 election of the Respondent is void, the 24 only determination that can be made as a 25 matter of law is that there must be a new election in which the Respondent is free to offer his candidacy and contest the election. 3: In any event, the reference to the alleged false statement of fact against the Honourable Thomas Jefferson set out in paragraph 5 (b) of the Election Petition should be struck out since he was not a candidate in the election for the Electoral District of George Town within the meaning of Section 56 of the Elections Law. The Respondent's argument in support of his first proposition is that there are two parallel streams of provisions present in our Elections Law with different objectives and that this appears to be a unique feature of the Cayman Elections Law. I was invited to refer extensively to the Representation of the People Act, 1983, which applies to the whole of the United Kingdom and indeed previous legislation from that jurisdiction and elsewhere as examples of a more common kind of Election Law where there is one integrated stream of provisions. I accept that Section 71 (1) (d) is widely enough drafted to provide for the conviction of anybody, whether a candidate or not, who commits an illegal practice by 1 making a false statement of fact in relation to the 2 personal character or conduct of the candidate, before or 3 during an election, for the purpose of affecting the 4 return of a candidate at the election. It would apply to 5 a news broadcaster, a candidate or other person in one 6 district who made such a statement in relation to a 7 candidate in another district for the purpose stated. But 8 I do not think that it follows at all, that the wide 9 definition of the offence in Section 71(1) (d) should not 10 include, for, the purpose of grounding a complaint in an 11 election petition of an undue election the making of a 12 false statement of fact in relation to the personal 13 character or conduct of a candidate or candidates in an 14 election for a particular electoral district by another 15 candidate in that district. 16 Some weight was attached by counsel for the 17 Respondent to the expression, "for the purpose of 18 promoting or procuring the election of any person 19 thereat", which appears in Section 57 of the Law. That 20 section deals with the avoidance of an election for 21 illegal and other practices which have so extensively 22 prevailed that they may be reasonably supposed to have 23 affected the election result. That is not this case, and 24 I do not accept the proposition that the phrase restricts 25 the ambit of other provisions of Part IV. 11 It is also noteworthy that the consequence of a 12 finding under Section 57 that the election of the person 13 concerned shall be void is that he shall be incapable of 14 being elected to fill the vacancy or any of the vacancies 15 for which the election was held. That lends some support 16 to the proposition that the consequence of declaring an 17 election void is that another election will be held, 18 rather than that another unsuccessful candidate should 19 simply step into the breach. 20 It seems to me to be quite clear from the provisions 21 of Sections 56, 57 and 58 of the Law that a corrupt or 22 illegal practice can be the subject of complaint in an 23 election petition, that the Judge's determination and 24 certification to the Governor can be predicated on a 25 finding that this was so and that the reference to the 1 impracticable result would apply. 2 For these reasons, I refuse the Respondent's 3 application that the whole Election Petition should be 4 dismissed. 5 I now turn to the application relating to 6 paragraph (2) of the prayer of the petition. In this 7 respect, the Respondent must succeed. What is alleged 8 against him is that he has been personally guilty of 9 illegal practices. If a certification to that effect is 10 made by the Judge, Section 56 expresses the consequence 11 that his election is void. 12 Section 58 (2) provides that it is the duty of the 13 Judge to: 14 "...determine whether the member of the 15 Assembly whose return or election is 16 complained of or any, and what, other 17 person was duly returned and elected, 18 or (my emphasis) whether the election was 19 void..." 20 The word "or" must there be disjunctive. It is not 21 open to the Judge to declare the election of one candidate 22 void on the ground of an illegal practice and declare 23 another person duly returned and elected. 24 I reach that conclusion not only on what I think is 25 the correct view of the wording of the Law, but on a 1 public policy consideration. It would be an affront to 2 the democratic process, even under the circumstances 3 contemplated in Section 57 of the Law, where it is shown 4 that the various malpractices referred to in that section 5 have so extensively prevailed that they may be reasonably 6 supposed to have affected the result for another candidate 7 simply to step in as a consequence of the election being 8 void. A reasonable supposition is no basis for the 9 entitlement of any person to take his seat in the 10 Legislative Assembly. A fortiori, that must apply where 11 it is not sought to show that the result was affected. 12 The consequence must be as submitted on behalf of the 13 Respondent that if it is found that his election is void, 14 the only determination that can be made is that there must 15 be a new election in which the Respondent is free to offer 16 his candidacy and contest it. There is no disability in 17 that regard which follows upon a certification of an 18 illegal practice under Section 56. Avoidance under 19 Section 57, which does carry disability, is not claimed 20 and the disabilities under Section 71(1) (d) are 21 consequence upon a conviction before a magistrate. 22 I now turn to the alleged false statements about 23 Mr. Thomas Jefferson who was a candidate in the election 24 for the Electoral District of West Bay. If I am right in 25 what I have said so far about the way the Elections Law 1 should be interpreted, these are only relevant if they 2 amount for the purpose of affecting the return of a 3 candidate at the election held for the George Town 4 Electoral District to a statement of fact in relation to 5 the personal character or conduct of the candidate. The 6 only eligible candidates in that regard today are 7 Mrs. Thompson-Murphy and Mr. Truman Bodden. 8 In support of his argument that paragraph 5 (b) of the 9 petition relating to Mr. Thomas Jefferson should not be 10 struck out and indeed in relation to the jurisprudential 11 history of our own Elections Law generally, Mr. LaMontagne 12 relied extensively on and read extensively from the case 13 of the North Division of the County of Louth, 1911, 6. 14 O'M & H, beginning at page 103. One of the many 15 allegations in that case was that; there had been a 16 violation of the Act of 1895 which made it an illegal 17 practice for any person or the directors of any body or 18 association or corporation to publish false statements, 19 subject to the following limitations: 20 (1) the publication must be before or 21 during a Parliamentary election; 22 (2) it must be for the purpose of 23 affecting the return of a candidate at 24 such election; 25 (3) the false statement must be one of
fact;
(4) it must relate to the personal
character or conduct of the candidate.
The ancestral relationship between this and the more
modern statutes to which I have been referring is
obvious. I go from there to two short passages from the
judgment of Mr. Justice Gibson.
The first is at page 158 of the report and is this:
"As the Lord Chief Baron observed in
O'Shee's Case, there is no sharp dividing
line separating what is personal from what
is political or otherwise. The real
question is, what is the true meaning of
the letter and the leaflet, considering
the occasion of publication, the persons
publishing, the person attacked, the
readers intended to be addressed."
The second extract is this from page 160:
"The Serjeant says that all the statements
of fact as to persons in the letter and in
the leaflet are substantially true.
Whether they are true or not, whether the
relationships are exaggerated or not, is
immaterial so far as they relate to other
persons. The statute only gives relief in respect of false statements directed against the candidate. The importance of mis-statements or inaccuracies as to other persons depends upon whether they would strengthen the impression of the reader as to Mr. Healy's jobbery, and possibly making the relationship closer, depressing the lowly origin of Mr. Healy, and other matters of the kind might increase the suspicion against Mr. Healy. Mr. LaMontagne asked, what at this stage, which is strictly for the purposes of the trial of the preliminary issues without benefit of evidence, is the difference in principle between that case and the present case where it has been suggested that Mrs. Thompson-Murphy, Mr. Truman Bodden and their fellow members of the National Team, Mr. McKeeva Bush and Mr. Jefferson are all bad people in a speech which concludes with an invitation to voters to vote for its author and his political friends? The "impeccable logic" of the matter as put by Mr. LaMontagne on the basis of what the petition says, the admission that the words complained of were spoken and the North Louth case was to say that the members of your political group are just as bad as you, merely re-enforces the bad things I am saying about you. 1 So paragraph 5 (b), he says, should not be struck out 2 because a candidate in George Town can make a false 3 statement which goes to the personal character or conduct 4 of a candidate in West Bay and still for that reason be at 5 the receiving end of an election petition in George Town. 6 Mr. LaMontagne acknowledged that he had been unable 7 to find any case directly on point and that he was relying 8 on the North Louth case. 9 In the present case, the argument is that statements 10 about an incident of an entirely personal nature which 11 took place in 1985 and long before Mr. Jefferson sought 12 any elected office amount by some process of guilt by 13 association to statements of fact in relation to the 14 personal character or conduct of a political colleague in 15 1996. I think that that argument is bound to fail and 16 that no amount of evidence could sustain it. It would 17 tend to prejudice, embarrass or delay the fair trial of 18 the action and in this connection considerations of public 19 policy are material. 20 I order that paragraph 5 (b) of the petition and, 21 consequentially the words, "and/or other" in the fourth 22 line of paragraph 5 of the Petition and the words, 23 "and Tom Jefferson" in the third line of paragraph 3 be 24 struck out. 25 So, my Order is- 1. That the application to strike out the Petition is dismissed. 2. That paragraph 5b of the Petition and paragraph 2 of the prayer of the Petitioners' be struck out. 3. That the words, "and Tom Jefferson" in paragraph 3 and the words "and/or other" in paragraph 5 of the Petition be struck out. 4. I will hear any observations which counsel wish to make at this stage with regard to costs. G. E. Harre Chief Justice 6th March 1997