Thompson-murphy et Al v Pierson
| Jurisdiction | Cayman Islands |
| Judge | Harre, C.J. |
| Judgment Date | 06 March 1997 |
| Court | Grand Court (Cayman Islands) |
| Date | 06 March 1997 |
Harre, C.J.
Grand Court
Elections - Undue election — Application for election of respondent to be declared an undue election — Elections Law (1995) Revision — Order for petition to be struck out in part.
Orren Merren & Co for the petitioners.
Charles Adams, Ritchie & Co. for the respondent.
Government Legal Department.
Before I start this ruling, in view of the extensive reporting and the public interest in this case, 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.
The arguments which I have been hearing and on which I am about to rule concern points of law. I have until now 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 November 18th, 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 status of the petition in relation to it.
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 a complaint on which an election petition may be presented to the Grand Court under s.54 of the Law is the undue election or undue return of a member of the Legislative Assembly. The present petition seeks the following determinations by this Court:-
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(1) That the said Linford Pierson was not duly elected and that his election was void in accordance with the provisions of s.56 of the Elections Law (1995 Revision).
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(2) That the said Berna Thompson-Murphy was duly elected and ought to have been returned and therefore that the return for the Electoral District of George Town be altered accordingly in accordance with the provisions of s.58 (2) of the Elections Law (1995 Revision).
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(3) That the petitioners may have such further or other relief as may be just.
Sections 56 and 58 of the Elections Law read as follows:-
“56. If a candidate who has been elected is certified by the Judge who tried the election petition questioning the return or election of such candidate to have been personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.
58. (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 passage from the Australian case, Re Surfers' Paradise Election Petition, is pertinent ( [1975] Qd. R. at 119):-
“The Act [the Elections Act (Queensland) 1915] 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 the course of which there has been misbehavior or management of a kind which, history has shown, may result in the selection of a candidate otherwise than 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 Dunn, J., which is to be found in 4 Words & Phrases Legally Defined, 3rd ed., at 351 (1990) with reference to an enactment similar to our own to the relevant extent. It is the will of the constituency which prevails.
The allegations against Mr. Pierson are contained in para.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 those and/or other candidates contrary to the provisions of s.71 (1) (d) of the Elections Law (1995 Revision), in that on November 18th, 1996, he made and published at the Democratic Alliance's public meeting in the George Town, Town Hall, (which was broadcast live on CITN Cayman Channel 27 television and also re-broadcast on CITN on November 19th, 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 questions remain: 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, in the minds of the person making the statement, the person being attacked and those present at 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 November 20th, 1996 for the Electoral District of George Town. Mr. Thomas Jefferson and Mr. McKeeva Bush were candidates in the Electoral District of West Bay.
Section 71(1)(d) of the Elections Law (1995 Revision), contravention of which is the expressed ground of the complaint against Mr. Pierson, provides that, subject to sub-ss. (2) and (3) of the section, every person who – –
“himself or as a director of any body or association corporate, before or during an election for the purpose of affecting the return of a candidate at the election, makes or publishes any false statement of fact in relation to the personal character or conduct of the candidate, is guilty of an illegal practice, and liable on summary conviction before the Magistrate to a fine of five hundred dollars or to imprisonment for six months, and in addition shall be incapable during a period of five years from the date of conviction of being registered as a voter or of voting at any election, or of being a candidate for election to the Assembly or, if elected before his conviction, of retaining his seat as a member.”
It is not alleged that Mr. Pierson did anything otherwise than personally, so sub-s. (3) of s.71, which relates to the acts of an agent, is irrelevant. Subsection (2), however, reads as follows:
“A person charged under subsection (1) (d) shall not be guilty of an illegal practice if he can show that he had reasonable grounds for believing, and did in fact believe the statement he made to be true.”
That subsection is invoked by Mr. Pierson as part of his defence.
The heading to Part V of the Elections Law indicates that it is concerned with election...
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