The lawyer representing manager of NICE Radio, Douglas De Freitas, in the public alarm charges brought against him says she needs access to the ballot boxes from the 2015 general elections to prepare her defence.
But Director of Public Prosecution, Colin Williams, has denied the request from the defence counsel, Kay Bacchus-Baptiste.
The case has seen two magistrates recusing themselves and a senior lawyer who has been representing the government in the two election petitions brought after the December 2015 polls suggesting that the charges against De Freitas be discontinued.
De Freitas has been slapped with some 11 charges in relation to comments he reportedly made on Dec. 10, 2015, one day after the general elections.
Prosecutors are alleging that the comments were likely to cause public fear and alarm, and brought charges in that regard against De Freitas six and eight months after they were allegedly made.
When the broadcaster appeared in court on Aug. 29, Bacchus-Baptiste applied for disclosure in the matter, which the magistrate granted.
Manager of NICE Radio, Douglas DeFreitas. (IWN file photo)
But in a Sept. 9, 2016 letter to acting Commissioner of Police, Renold Hadaway, Bacchus-Baptiste acknowledged “partial disclosure” in the cases.
In the letter, which was copied to the DPP, Bacchus-Baptiste, however, said “… in light of the many specific charges relating to sealing, etc. of ballot boxes, I am requesting that disclosure be made to me of all the ballot boxes for Central Leeward and North Leeward and in fact all the boxes based upon the charges laid.
“This is necessary for the proper defence of my client,” the lawyer said.
“I will need to see the boxes BEFORE the trial and then they must be made available as evidence in the cases,” Bacchus-Baptiste told the police chief.
Hadaway responded on Sept. 13, acknowledging receipt of Bacchus-Baptiste’s letter, adding that he was seeing the advice of the DPP regarding the request.
But, in his response on Sept. 12, Williams said there seemed to have been “some apprehension” on the part of Bacchus-Baptiste as to the charges and evidence in the matters.
“… our case does not contain nor rely on producing any ballot box or boxes. Accordingly, there is no ballot box to be shown to you. These charges rest plain and simple upon the statement made by your client. In short, our case rests on what your client said,” Williams wrote.
Bacchus-Baptiste wrote back to the DPP on Sept. 13 saying, “… our defence is that the ballot boxes were indeed not properly sealed.
“It is, therefore, imperative that the ballot boxes be disclosed both for me to peruse before the case and also to be exhibited in court as evidence. Surely you cannot prove your case without proving to the court that the boxes were properly sealed.
“The defence will be prevented from preparing our case without sight of the boxes. Please make same available.”
De Freitas initially appeared before magistrate Bertie Pompey at the Kingstown Magistrate’s Court, but the former deputy police chief recused himself because of a pending legal matter involving him and the broadcaster.
The case was transferred to the Calliaqua Magistrate’s Court, where Zoila Ellis-Browne is the magistrate.
In a Sept. 9 letter to Ellis-Browne, ahead of the court hearing, Bacchus-Baptiste asked the magistrate to recuse herself from the case.
She also asked the magistrate to recuse herself from the case as well as the case of the Commissioner of Police versus Benjamin Exeter, the opposition New Democratic Party’s (NDP) candidate for Central Leeward in the 2015 general elections, and Shabazaah George, an NDP youth activist.
Pompey had also recused himself from the Exeter-George matter mid-trial following an application by Bacchus-Baptiste because of comments he had made from the bench.
Defence counsel, Kay Bacchus-Baptiste. (IWN photo)
In her letter to Ellis-Browne, Bacchus-Baptiste said she does not doubt “your integrity or that you do faithfully exercise your office”.
She, however, cited the authors of Blackstone Criminal Practice 2009, who noted that “the right to an impartial tribunal is protected by the rule that provides for the judges’ disqualification if… on examination of all the relevant circumstances there was a real danger or possibility of bias… Disqualification for apparent bias is not discretionary; once there is a real possibility of bias the judge is disqualified.”
Bacchus-Baptiste said: “If the appearance of justice requires such a step, the judge must recluse herself. Bias is presumed and gives rise to automatic disqualification when ‘the interest of a spouse or family member is so close and direct as to render interest for all practical persons indistinguishable from that of the judge.’”
Ellis-Browne is wife of Michael “Mike” Browne, a former minister under the ruling Unity Labour Party, who retired from politics in 2010.
However, Bacchus-Baptiste did not hinge her case for the magistrate to recuse herself on the magistrate’s husband’s political history.
Her case was made based on comments that former Assistant DPP, Colin John, now acting Deputy Commissioner of Police, made to the media after Pompey recused himself.
Former Assistant Director of Public Prosecutions, Colin John, how acting Deputy Commissioner of Police. (IWN photo)
Bacchus-Baptiste wrote: “In an interview with the very popular and widely read iWitness News, the assistant DPP and now Deputy Commissioner of Police said ‘I just hope that whichever magistrate, the same frivolous and stupid — in my opinion — allegation is not made because St. Vincent is a small place, there are several magistrates, you can always find some reason to affiliate one magistrate to something,’ … ‘If it goes before the Chief Magistrate [Rechanne Browne-Mathias], the argument can be made that she is the sister of [Minister of Health, Sen.] Luke Browne. If it goes before Zoila Ellis, the allegation can be named that she is Mike Browne’s ex –wife.’”
The lawyer said that while previous political association should not disqualify a magistrate, the public expressions of the then Assistant DPP “and highly-charged political environment we live in makes it imperative that the Defendants and the General public feel justice is seen to be done.
“A fair-minded and informed observer in St. Vincent and the Grenadines would feel that a real possibility exists for bias.
“I say this bearing in mind that the fair-minded and informed observer is ‘neither complacent nor unduly sensitive or suspicious’…
“In all these circumstances the fair-minded observer would view your dear husband’s close association to the ruling ULP to be continuing enough to give rise to a grave doubt that justice will be pure. This is particularly important since there is no jury, you are judge and jury,” Bacchus-Baptiste wrote.
Crown Counsel, Karim Nelson. (IWN file photo)
Crown Prosecutor, Karim Nelson countered Bacchus-Baptiste’s argument, saying that she was misquoting his former colleague.
He said that John was making the case that persons would seek to make political connections regardless of which magistrate hears the cases.
Nelson further noted that Browne has not been a Member of Parliament for over five years and, therefore, his political preference is unknown. The prosecutor said that in the circumstances, there is no real possibility of bias.
After hearing the defence counsel’s application in court on Tuesday, Ellis-Browne said it was not entirely surprising.
After standing down the matter for about 10 minutes to review the documents in support of the application, said she had decided recused herself.
The case was transferred to Ricky Burnette at the Biabou Magistrate’s Court, where the next hearing is slated for Sept. 30.
Ellis-Browne further said she would make a determination in the Exeter-George matter when an application that she recuses herself is made in court.
Senior Counsel, Dominican Anthony Astaphan. (IWN file photo)
The legal goings-on saw another interesting development last week, when Dominican senior counsel, Anthony Astaphan, who has defended the government against two election petitions filed by the NDP, said that if he were representing De Freitas, he would have petitioned the DPP to dismiss the charges.
Speaking on Boom FM on Wednesday, Astaphan said: “If I were representing Douggie De Freitas — and I am not, so I giving free advise, … I would immediately approach the DPP and tell him, ‘Look, you got to nolle prosequi this because we are not getting anywhere on this because it has been going on too long’, or I go to the court and get an order to either quash the charge for the reason we have just now discussed or to get an order of mandamus directing the magistrate… These would be the legal options open to Douggie DeFreitas if this thing is recused again…”