The lawyer for the persons seeking permission from Director of Public Prosecutions (DPP), Colin Williams, to bring a private criminal complaint against an electoral official, has accused the chief prosecutor of acting in the interest of the ruling Unity Labour Party (ULP).
“It is passing strange that when you have to make a decision in matters of prosecuting anyone whose prosecution is not in the interest of the ruling Unity Labour Party Government you rule in favour of the interest of the Unity Labour Party regime. It is what it is!” the lawyer, Kay Bacchus-Baptiste, said in a Dec. 21, 2016 letter to Williams.
Bacchus-Baptiste’s letter was in response to one from Williams on Oct. 28, 2016 in which he refused a request by Maxine Berkley, Vesta Hanson and Elgevia Parsons, all of Layou, to institute private criminal prosecutions against Winston Gaymes, returning officer in the Central Leeward constituency.
Exeter was the main opposition New Democratic Party’s (NDP) candidate in the Central Leeward constituency in the December 2015 general elections.
The NDP has rejected the results in Central Leeward and North Windward and have gone to court to challenge the outcome of the vote, which the ULP won by taking eight of the 15 electoral seats while the remaining seven went to the NDP, according to the official results endorsed by regional an international observers.
Berkley, Hanson, and Parsons asked Williams for a fiat for the prosecution of Gaymes for “the repeated commission by him of an election offence” contrary to section 40(f) of the Representation of the People Act.
The applicants say that Gaymes unlawfully counted 321 ballots in Central Leeward, where Sir Louis Straker, of the ULP, defeated Exeter by 313 votes.
In a sworn affidavit, Gaymes admitted to counting ballots that he knew and “was minded” to reject.
Williams provided an extensive response, in which he examined the law and other considerations taken into account in reaching his decision.
But Bacchus-Baptiste told Williams that her clients are of the opinion that he “never genuinely considered their request for a fiat but sought in every way to avoid the issuance of their request”.
She said Williams never asked a question “from a prosecution viewpoint but appeared at every instance to have set up yourself as a defence attorney for Mr. Gaymes”.
The lawyer further said that the chief prosecutor has not seen it necessary to even interview Maia Eustace, a lawyer for the NDP, or Exeter, “or even in your capacity of a true prosecutor interview Ms. Barnwell who we indicated may have information”.
Shirlan Barnwell was one of several lawyers who represented Exeter at the final count in Layou on Dec. 10, 2015.
“As a prosecutor/Director of Public Prosecutions, we insist that your duty is to the citizens of St. Vincent and the Grenadines and that you ought to make your independent investigations if it is reasonable to do so,” Bacchus-Baptiste said.
“You never requested witness statements from the Applicants and as a genuine prosecutor nothing prevented your office interviewing the applicants or even requesting witness statements,” she further said.
The relevant law says that “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.”
But Bacchus-Baptiste said that the DPP has added words to the law.
“We are very concerned that having added the words (a) fraudulently (b) corruptly (c) both fraudulently and corruptly to the offence, how did you determine that Mr. Gaymes was not dishonest? That he did not corruptly or fraudulently count these ballots anyway?
I wish to add that even if the legislation imported the words ‘corruptly’ or fraudulently’ you have enough evidence to still issue the fiat or at least to genuinely investigate all the likely witnesses before you make your decision.”
Among the DPP’s consideration in reaching his decision was the application of the Full Code Test.
The Full Code Test is a two-stage process consisting first of the evidential stage and if that threshold is crossed, the public interest stage.
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.”
The DPP concluded 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.”
He said that having subjected this matter to “a thorough review and analysis”, the request by the applicants Berkley, Hanson and Parsons for a fiat to institute private criminal proceedings against Gaymes is refused.
But Bacchus-Baptiste disagreed with the DPP’s conclusion.
“The confidence of the general public has been shaken again as a result of your ‘reasoned decision’,” Bacchus-Baptiste said.
She added: “Most persons opined you will never issue that fiat. My clients are convinced that all your defensive enquiries were a mere charade leading to your refusal.
“I urge you to rethink your decision in the interest of Justice of all and issue the fiat.”