Court of Appeal judge Algernon Smith yesterday granted a stay of the magisterial recount in the Hanover Eastern constituency, just a few hours after the Supreme Court rejected an application by lawyers representing the Jamaica Labour Party's (JLP's) Barrington Gray to stop the recount.

Gray's legal team will now go back to the Court of Appeal today to present arguments as to why the Supreme Court has the jurisdiction to give an order to the magistrate to count or reject ballots in accordance with the provision of the Representation of the People Act, JLP attorney Harold Brady told the Observer.

Yesterday morning, Brady had asked Justice Marva McIntosh to prevent a scheduled recount of the ballots on the grounds that magistrate George Burton was "proceeding on an unlawful basis" in that he had accepted some ballots with the counterfoil torn off on Saturday and then rejected similar ballots on Monday.

McIntosh, however, said that she had no jurisdiction to stop the recount.

Brady then took the matter to the Court of Appeal, arguing that the Supreme Court does have the jurisdiction to stop the recount, while citing a similar recount in the St Andrew Western constituency between Owen Stephenson and Dudley Thompson following the 1980 general elections.

"The then magistrate who was doing the recount was doing an incorrect procedure and a decision was taken by the Supreme Court to stop the recount until the matter was heard," Brady said.

The re-examination of ballots began at about 10:30 am yesterday, an hour and a half later than scheduled due to the late arrival of Gray and Albert Morgan, a member of the JLP's legal team.

The exercise ended at about 5:50 pm with the counting of the 85 boxes, but RM Burton did not tally the ballots nor did he declare a winner for the seat being contested by Gray and the People's National Party's (PNP) D K Duncan.
Duncan later told the Observer that based on his tally he had won the seat by a majority 10 votes.

Shortly after the adjournment of the court, JLP and PNP supporters gathered in the vicinity of the courthouse exchanged heated words. The police, however, quickly quelled the disturbance.

The magisterial recount for the closely contested seat began last Friday. Gray was declared the winner in the final count by a margin of nine votes in the general elections held three weeks ago. But Duncan filed a petition for a magisterial recount, citing a number of irregularities.

Yesterday, Brady, in an effort to explain his position, said, "The magistrate on Saturday accepted ballots with the tops torn off. Then on Monday he decided that he was not accepting anymore like that. It was then that I objected . and asked for leave to appeal his new ruling because he was overruling himself."

The requests for leave and a stay of the count were rejected by Burton and it was then that Brady asked for a recount of all the boxes.

"We knew that he was wrong in rejecting these ballots and that is why we appealed to the Supreme Court to make a ruling that he was wrong . and for a stay of the recount," Brady said.

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