KINGSTOWN, St. Vincent – The High Court has dismissed several applications for judicial review of matters filed by candidates for the New Democratic Party (NDP) in the Dec. 13, 2010 general elections against their Unity Labour Party (ULP) counterparts.
High Court judge Gertel Thom in a Nov. 15, 45-page judgement ruled that the private criminal complaints brought against the ULP candidates have no realistic prospect of success at trial and therefore refused leave to seek judicial review.
The NDP candidates had applied for judicial review of the Jan. 13 decision by Director of Public Prosecution (DPP) Colin Williams to take over and discontinue the complaints.
On Jan. 11, Dr. Linton Lewis, the NDP’s candidate for East St. George, filed two private criminal complaints against the ULP’s Clayton Burgin, who won that constituency.
That same day, Vynnette Frederick filed two private criminal complaints against Cecil McKie, who defeated her in West St. George and Gonsalves, Member of Parliament for North Central Windward.
Meanwhile, Nigel Stephenson, who won South Leeward for the NDP, filed two private criminal complaints against Dr. Douglas Slater, the former area representative, who did not contest the election.
The complaints were filed under section 51(3) of the Representation of the People Act (RPA) and could have seen the defendants barred from Parliament for five years, if found guilty.
The DPP, on Jan. 11, requested that the applicants submit to him copies of all statement relevant to the complaints by 10:30 a.m. the following day.
Chief Magistrate Sonya Young, on Jan. 12, refused to issue the summonses in relation to Gonsalves and the DPP took over the complaints against Burgin, McKie and Slater and discontinued them on Jan. 13.
Lewis, Frederick, and Stephenson applied for leave to seek judicial review of the DPP’s decisions.
They claimed that the DPP’s decisions were beyond his legal power or authority (ultra vires), irregular and procedurally improper, unreasonable, biased, or alternatively tainted by bias, illegal and perverse, according to the Nov. 15 judgement, obtained by I-Witness News.
The respondents opposed the grant of leave, arguing that the applications had failed to please or raise an arguable case with a reasonable prospect of success at trial and the applications were an abuse of the process of the court.
The applicants in their submission argued that the DPP was biased because of his close — 15-year — association with Gonsalves, leader of the ULP — whom the complaints directly affected.
They further pointed to past action of the DPP in similar circumstances, the fact that the ULP won the election by one seat, and that the DPP’s decision to take over and discontinue was make within 24 hours.
They complainants argued that “when making administrative decisions, public officials have a duty to act fairly to persons who would be affected by the decision” and that procedural fairness required the DPP should have recused himself from the matter and allowed one of his senior officers to make the decision,” according the judgement.
In making its case that there was “procedural unfairness” on the part of the DPP, the applicant pointed to the short time between when the DPP received the statement and his decision to take over and discontinue the matters.
Further, the DPP never interviewed the applicants or their witnesses, the applicants said.
“Learned Counsel submitted that the DPP’s decision was irrational in view of the cogent and compelling evidence of the Applicants and their witnesses. The DPP had no proper basis for discontinuing the complaints,” the judgment said.
But the respondents submitted that the issue of bias of the DPP based on past association with Gonsalves was determined in the case in which a police officer has accused him of sexual assault and therefore the applicants could not re-litigate the issues.
They further argued that there is a presumption that the DPP will act independently and impartially.
“This presumption can only be rebutted by strong and compelling evidence of political interference, bad faith, fraud, corruption or misbehaviour all of which require a specific and dishonest intent.
“There is no evidence in the affidavits filed by the applicants which show such bad faith or collusion between the DPP and Gonsalves. There is also no evidence of interference or influence by Gonsalves or members of the ULP in the DPP’s decision,” the judgement said in recounting the arguments.
The respondents further referred to the DPP’s affidavit where he said that the material produced by the applicants they did not meet the evidential stage test of the code in that there were no material of particulars of the alleged false statement as required by section 51 of the RPA.
Further, there was no evidence of the alleged false statements nor was there sufficient evidence to meet the test of reasonable prospect of conviction.
The evidential material provided by the applicants was not voluminous, the respondent argued, pointing out that there were nine witness statements, each no larger than two pages.
“Thus the DPP did not require lengthy period of time to review the matter,” the judgement said of the respondents’ argument.
Regarding the claimants’ argument of irrationality on the part of the DPP, the respondent submitted that the applicant have not made any proper plea or adduced any evidence on their affidavit to show the reasons advanced by the DPP for his decision to take over and discontinue the complaints are irrational or perverse.
The judge therefore ruled that that the applications of Lewis, Stephenson and Frederick have no realistic prospect of success and therefore refused leave to seek judicial review.
In relation to the Chief Magistrate’s decision to refuse to issue summonses in relation to the two private criminal complaints against Gonsalves, the judge found there was no reason to set aside the order granting leave.
Additionally, in a matter in which East Kingstown voter Patricia Marva Chance, on Dec. 7, 2010 filed private criminal complaints against fellow voter Afi Jack under Section 22(1) and 22(3) of the RPA, the court found that leave ought not to have been granted to Chance for judicial review of the DPP’s decision to discontinue the private criminal cases against Jack.
The court also ruled that there is no realistic prospect of success of Chance’s claim for judicial review of the DPP’s decision.
In the case of Frederick versus Gonsalves, the High Court will on Nov. 30 hear arguments regarding whether the Chief Magistrate should have summoned the Prime Minister to come to court to answer charges.
Further, the respondent, Chief Magistrate Sonya Young, has been ordered to pay EC$5,000 in cost in relation to that case.
If judgement comes down against Gonsalves on Nov. 30 and he is found guilty at a trial, he could be barred from Parliament for five years, since the charges were filed under the RPA.
Keith Scotland, Kay Bacchus-Browne and Nicole Sylvester appeared for the applicants while Anthony Astaphan, Richard Williams and Grahame Bollers appeared for the defendants.