Director of Public Prosecutions, Colin Williams, says that if returning officer for Central Leeward, Winston Gaymes, broke the election law, as the NDP is alleging, then he is not the only one.
Williams expressed the view in an Oct. 28, 2016 document sent to lawyer Kay Bacchus-Baptiste, who is representing three Layou residents — Maxine Berkley, Vesta Hanson and Elgevia Parsons — in their attempt to get the DPP to issue a fiat to institute Private Criminal Prosecutions against Gaymes.
The trio say that Gaymes broke the election law when, by his own admission in a sworn affidavit, said he counted ballots that bore neither the initial nor stamp of the presiding officer, which he said he was “minded” to reject.
In the letter, Williams, citing inadequate evidence, refused to grant the fiat.
In his detailed 4,700-word response, the chief prosecutor noted that the relevant law says, “Any election officer who… (e) Wilfully rejects or refuses to count any ballot paper which he knows, or has reasonable cause to believe is validly cast for any candidate in accordance with the provisions of this Act; or (f) Wilfully counts any ballot paper as being cast for any candidate which he knows or has reasonable cause to believe was not cast for such candidate, is guilty of an offence and liable on conviction on indictment, to imprisonment for two years.”
Williams said there is no doubt that Gaymes is an “election officer” under the Act.
He further said the term “election officer” also includes the Supervisor of Elections, Deputy Supervisor of elections, returning officer, presiding officer, registering officer and any other officer duly authorised to perform any function relating to the registration of voters, the proceedings on polling day or the counting of votes.
“Indeed, if, as alleged, invalid votes were counted at the final count, culpability may not begin and end with Mr Gaymes solely, but include the presiding officer and all those persons who were “duly authorised to perform any function relating to … the proceedings on polling day or the counting of votes”.
“Each and every election official involved in both the preliminary count on elections day as well as the final count may therefore be liable, if what the applicants for the fiat allege is provable (that is, that votes were in fact counted that were not validly cast for a candidate). If so, every election officer, not just the returning officer, ought to be culpable.”
But Bacchus-Baptiste, in her Dec. 21, 2016 response to Williams, said that whoever is culpable should be prosecuted.
“If you determine that the presiding officer and other officers are also culpable why not charge them also? The law is clear that the questionable ballots are void. The law says they are not to be counted,” she said.
“How do you know 221 persons turned up at the polling station to vote? That is the mischief of the section: To prevent ballots appearing in the box to be counted which were not stamped and initialled. There is no evidence that any voter actually marked on those invalid ballots,” Bacchus-Baptiste wrote.
In her response, she further said her 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.
“This is underscored by the fact that not once did you ask a question from a prosecution viewpoint but appeared at every instance to have set up yourself as a defence attorney for Mr. Gaymes,” Bacchus-Baptiste said.
She further accused the chief prosecutor of ruling “in favour of the interest of the Unity Labour Party regime” when he has to make a decision “in matters of prosecuting anyone whose prosecution is not in the interest of the ruling Unity Labour Party Government”.