McKay concludes submissions

by George Barclay
Guyana Chronicle
July 14, 2000

JUSTICE Claudette Singh, the trial judge hearing the Esther Perreira Elections petition, was yesterday asked to find that the legal authorities rejecting computer generated documents, were unanswerable.

Senior Counsel Rex McKay, representing Respondent Mr Desmond Hoyte, made the above observations when responding to earlier submissions by Elections Commission lawyer, Senior Counsel Mr Doodnauth Singh, and Senior Counsel Mr Ralph Ramkarran.

The latter had advocated that the statement on page 29 of the Caricom Audit Team Report on page 29, was done in error and that the computer documented erratum, which original was signed by members of the Caricom team, was forwarded in an effort to correct the mistake.

In winding up his submissions yesterday after addressing the Court for five days, Mr McKay mentioned the erratum issue and urged the judge not to budge from her stand, which he said, is supported by law.

He went on to cite a number of legal authorities to show that the law does not provide for the admission of copies of documents in Court in cases where the whereabouts of the originals are unknown.

One of the cases he cited was a decision of Lord Devlin as reported in the All England Reports which stated:-

"The condition which is required to be satisfied before a copy can be produced is that the Court should, having regard to all the circumstances of the case, be satisfied that undue delay or expense would otherwise be caused.

"It is not, therefore, a provision designed as a substitute for the common law rule as to secondary evidence of lost documents.

"It requires the Court to be satisfied that undue delay or expense would otherwise be caused, and, therefore, implicitly requires that the original document is in existence, and the only question that arises is whether it would cause unnecessary delay or expense to have it produced.

"The copy to be admitted must be certified to be a true copy. It looks as if the legislature had in mind the rule that where there are original documents which are kept in the custody of, for instance, a bank or a public authority, and it is inconvenient to have been brought to Court, a certified copy is accepted instead."

McKay referred to the Evidence Act of 1938 which gave definitions in relation to documents

According to him, Section 6 (1) of the Act provides that "document" includes books, maps, plans, drawings and photographs.

"Although the definition is plainly not exhaustive, it is doubtful whether a tape-recording, or a computer print-out, would be held to be a document within the Act," McKay quoted the decision as reported.

He referred also to the case of R. V. Coventry Justices Ex parte Bullard & Another. In that decision, the judge had said, "Mr Turner Samuels submitted that when considering the application of the hearsay rule to a print-out from a computer, it is necessary to distinguish between computer print-outs containing information implanted by a human and print-outs containing records produced without human intervention.

"To rely on the contents of the former is to rely on inadmissible hearsay whilst to rely on the contents of the latter is to rely on real evidence.

"We know nothing of the operation of the computer which produced the print-out relied upon by Mr Ryder for no evidence about that was called before the justices.

"However, it must be the case - and Mr Richards did not seek to persuade us to the contrary - that the outputs are of or are derived from information implanted by a human. They are thus hearsay and inadmissible as evidence of either the amounts which the applicants are liable to pay or of the amounts which are unpaid.

"They are also, albeit for a different reason, not evidence, not evidence of the liability of the applicants to pay because the print-out was not the relevant part of the register (nor did it purport to be). Albeit it contained items which were probably derived from it, for example, the applicants' names, addresses and charge type. The other information upon the print-out was not derived from the register for it could not have been contained in a register.

"In my judgement, the computer print-out relied upon by the City Council was inadmissible to prove what had to be proven and accordingly the Council could not have discharged

the evidential burden which was upon them."

After completing his submissions, Mr McKay gave way to Mr Peter Britton, Senior Counsel who is appearing for the Petitioner, Esther Perreira.

Mr Britton began his response by criticising Mr Doodnauth Singh for referring to Perreira as a supporter of the PNC.

According to Britton, "Perreira filed the petition not as a supporter of the PNC but as an elector."

After stating the points of law and the evidence he would address the Court on, Mr Britton reminded the Court that it had come out in evidence that Dr Depoo and Ganga Persaud of the Elections Commission were involved in an exercise in which they were directing people to rewrite Statements of Poll.

Counsel said that the allegation was a very serious matter. It was akin to a criminal conspiracy.

Mr Britton submitted to the judge that despite the seriousness of the allegation, Mr Doodnauth Singh, did not see it fit to call either Dr Depoo or Mr Ganga Persaud to explain the incriminating evidence.

In some jurisdictions, he said, some people have been charged with criminal conspiracy for the type of misconduct.

Mr Britton will continue his address when the hearing resumes on Monday.

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