Just So You Know: When is a lie not a lie?

In the 2009 matter of Kenny D. Anthony versus the Attorney General—popularly referred to as “The Tuxedo Villas Scandal”—Justice Brian Cottle had ruled in favor of the plaintiff. But he had also gone out of his way to add: “The minister was frank and open. He impressed the court as a reliable witness who gave his evidence in a credible and forthright manner. In cross-examination the Minister of Tourism was candid.”

In other words, as a witness in the particular case the way the witness Minister Allen Chastanet delivered his testimony on the occasion had found favor with the trial judge Cottle. The defendants appealed. So did the plaintiff, Kenny Anthony, as usual represented by Dominican senior counsel Anthony Astaphan assisted by local legal eagles Peter Foster, Renee St. Rose and Leslie Mondesir. The attorney general was a no-show.

Somewhat controversially, the appeal court delivered its verdict mere days before the unusually contentious 2011 general elections—in the process creating a political storm. Finally the court not only dismissed the government’s arguments but it also allowed Kenny Anthony’s cross appeal—with costs.

As if that were not trouble enough for the good ship UWP, especially at election time, there was also this: “When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on the matter of demeanor, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses.

“But there may obviously be other circumstances, quite apart from manner and demeanor, which may show whether a statement is credible or not; and these circumstances may warrant the court differing from the judge, even on a question of fact turning on the credibility of witnesses the court has not seen.”

The above quoted remarks was credited to Lindley, MR in Coghlan v Cumberland. Lord Thankerton’s guidelines in Watt v Thomas were also cited: “The Appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably appears so from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the Appellate court.”

In setting aside Cottle’s assessment of the witness Chastanet, the court had taken into account Astaphan’s arguments that the tourism minister was not a credible witness because “some of his answers were evasive and so outrageous as to be false and because he said he was not at a Cabinet meeting on 26 June 2008, when the Minutes recorded him as being present.”

The appeal court disagreed. The judge actually wrote that the court would not have interfered with Justice Cottle’s assessment of the witness Chastanet had he been “otherwise a credible witness.”

What proved a problem for Chastanet was his testimony that conflicted with the evidence before the court: he testified he was off-island and therefore had not attended the crucial 26 June 2008 Cabinet meeting. It had not helped his case that the witness produced no hard evidence supportive of his claim. All he relied on were uncorroborated words; his own!

Nevertheless, the on-going campaign assertions that in the Tuxedo Villas case the appeal court had declared Chastanet “a certified liar . . . the only government minister in Saint Lucia to be so stamped,” could not be farther from the truth. I hesitate to say the salted to taste allegations are pure invention, untrue. Judges seldom if ever refer to witness testimony as lies—preferring instead to say when appropriate that a statement was not credible. Indeed, the reader may fairly ask: Aren’t we splitting hairs here?

Not necessarily. In her highly lauded 1978 book Lying—Moral Choice in Public and Private Life, philosopher Sissela Bok observes: “Lying is a form of deception but not all forms of deception are lies.” Moreover, that lying is giving some information “while believing it to be untrue, intended to deceive by doing so.” How then to describe a statement that the maker believes to be true but lacks the evidence or the ability to prove its veracity?

Witness: In Saint Lucia, especially, countless victims of sexual assault have had their complaints dumped by juries, on the ground that the alleged victims were not credible because of their personal history, their occupation, lifestyle and so on. Often inferior legal representation—or no representation at all—is to blame. In the eyes of the jury the testimony of the accused was more credible, for the same reasons the complainants’ charges were dismissed: status, personal history, lifestyle, demeanor, to say nothing of the defendant’s superior defense team.

I should emphasize that credibility has little to do with truth. It simply means one story is more believable, more plausible—for whatever reasons—than the other. A credible statement is not automatically truth. If something is credible, you can believe it, whether or not it’s real—whether or not you can trust it.

Evidence is reliable if it is what it purports to be. To Chastanet’s detriment, he was never in a position effectively to contradict the plaintiff’s claim that he had attended a particular Cabinet—a claim that was supported by Cabinet minutes. The unrepresented witness never offered proof that the evidence before the court was not what it purported to be. Still, that in no way proves his testimony was false or that he lied in court.

To say a judge had declared Allen Chastanet a “certified liar” is to risk being seen as the proverbial pot that called the kettle black—or something worse.

This article first appeared in the February 2021 edition of the STAR Monthly Review. Be sure to get your printed copy on newsstands or view it here: https://issuu.com/starbusinessweek/docs/star_monthly_review_february_2021