Judge not ready to rule on whether AG should be cross-examined

A final decision on whether Attorney General Dale Marshall will be cross-examined in the lawsuit challenging the makeup of Parliament is pending.

Madam Justice Cecily Chase Q.C. said on Wednesday that she was “not inclined” to rule yet on the oral application made by Queen’s Counsel Garth Patterson, the lead attorney representing former attorney general Adriel Brathwaite Q.C. in the suit which is asking the court to quash President Dame Sandra Mason’s decision to reconvene Parliament, on the basis that the Senate was not properly constituted.

The High Court judge’s decision came after lawyers for the respondents described the submissions made by Patterson as a “fishing” expedition.

On Tuesday, Patterson said his side was no longer pursuing an application for disclosure in the matter and instead asked for leave to cross-examine on the affidavits submitted.

He said his team had been expecting that on the conclusion of the disclosure process, Government would have “laid its cards on the table”, but that had not materialised and the “only remaining option” was to seek to elicit, by cross-examination, the information that they should have voluntarily disclosed in the interest of assisting the court in discharging its supervisory function.

“I am not inclined at this point in time to rule on your oral application to have the respondent cross examined,” Justice Chase said on Wednesday. “In any event, there is an applicant in this matter . . . . I am not inclined to have the cross examination of the respondent at this juncture. I want to hear the law, the preliminary issues.”

Prior to the High Court judge taking that position, the Attorney General’s legal team charged that the matters which arose in the case were not issues of fact but issues of law for which it said “cross examination will be of no assistance”.

“We are saying these declarations that you seek really require interpretation of the sections of the Constitution and cross examination would not help,” argued Queen’s Counsel Roger Forde, one of the Attorney General’s lead counsels.

Forde charged that the applicant had “fallen woefully short” in his evidence to make out a prima facie case for judicial review and was therefore “seeking to remedy his defect in providing the evidence by seeking to obtain it in cross examination”.

“We call that fishing. He is really fishing. We say cross examination in respect of judicial review is rare, and . . . it should not be ordered for the reason that the issues which arise are issues of interpretation and interpretation does not require evidence. Once the court interprets the particular section, the requirement for evidence falls away,” the senior lawyer said.

He pointed to a paragraph in an affidavit filed by the Attorney General on February 17 which set out a plea of immunity.

“The President says ‘you cannot question me’. . . . What we are saying is until you determine whether you can question her then you cannot cross examine. To do otherwise will be to reject her position in respect to immunity without a full hearing. That is another reason and a strong reason for not allowing any cross examination on the affidavits,” Forde said.

“We say there are no facts in issues. . . .The applicant is fishing. He is trying to build a case that he does not have and the courts frown upon such an approach in judicial review . . . . Having established that there are no facts in issue, the submission is that cross examination should not be allowed.”
fernellawedderburn@barbadostoday.bb