Director of Public Prosecution, Colin Williams, has refused an application to initiate private criminal complaints against Winston Gaymes, the Returning Officer in Central Leeward in the December 2015 general election, saying that the evidence against him is “patently inadequate and weak”.
He said that even if the public interest in prosecuting Gaymes was considered before the evidence against him, a prosecution would not be supported.
Layou residents Maxine Berkley, Vesta Hanson and Elgevia Parsons have claimed that Gaymes broke the elections law, citing his own admission in an affidavit that he counted ballots in the December 2015 general elections that he was minded to reject.
They have sought permission from the DPP to initiate a private criminal complaint against him.
But Williams, in his decision, communicated to the trio’s lawyer, Kay Bacchus-Baptiste, in an Oct. 28, 2016 letter, that upon applying the Full Code Test, “it is apparent that there is no reasonable prospect of conviction, since, given the evidential weaknesses, it is highly unlikely that a jury properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt as to a guilty act on the part of Winston Gaymes and to properly convict for the proposed charge.”
The DPP said the Full Code Test is applied to every criminal matter and is a part of the code for Prosecutors in St. Vincent and the Grenadines and has been in force since 2010.
The ‘test’ is a two-stage process consisting first of the evidential stage and if that threshold is crossed, the public interest stage is the next hurdle.
The code says, “Prosecutors must be satisfied that a reasonable prospect of conviction exists if, in relation to an identifiable suspect, there is credible evidence which the prosecution can adduce before a court and upon which evidence a jury… properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the suspect… has committed a criminal offence.”
“… A prosecutor must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. A prosecutor must consider what the defence case may be, and how it is likely to affect the prospects of conviction.”
Williams said that the evidence against Gaymes is “patently inadequate and weak; it is of such poor and suspect quality that one cannot ‘be satisfied that a reasonable prospect of conviction exists’ in relation to Winston Gaymes”.
In the 4,700-word response outlining his decision, Williams said that based upon a thorough review of the material and reflective consideration of the applicable law, “it is clear to me that it is highly improbable for this matter to pass the ‘half-way stage’ as clearly, no jury, ‘properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt’ that an offence was committed.
The chief prosecutor said that even if the evidential threshold could have been surmounted, that, in itself would not have informed a decision to grant a fiat to prosecute, noting that one would have to then consider the public interest.
He reiterated that the evidential threshold has not been reached in the case.
“Had the second limb of the Full Code Test — the public interest considerations — been activated, then one would have had to ask, ultimately: ‘is a prosecution reasonably required?’ Indeed, do the factors in favour of a prosecution outweigh those against a prosecution? However, when one applies the guidance of the Code for Crown Prosecutors, (detailed earlier), the answer is in the negative.
“Usually, once a matter does not satisfy the evidential burden on the first limb of the Full Code Test, then the public interest limb need not be considered. Here, however, I sought – even though in reverse order – to earlier distil both limbs of the test. It is clear that upon a proper application of the public interest test, that there ought not to be a prosecution.
“In the circumstances, having subjected this matter to a thorough review and analysis, the request by the applicants Maxine Berkley of Layou, Vesta Hanson of Layou and Elgevia Parsons of Layou, for a fiat to institute private criminal proceedings against Winston Gaymes of Layou, the returning officer for Central Leeward, is refused.”
In her Dec. 21, 2016 response to the DPP, Bacchus-Baptiste said the clients believe that the DPP “never genuinely considered their request for a fiat but sought in every way to avoid the issuance of their request’.