Evidence seeking fiat against election official was weak – DPP

Director of Public Prosecutions (DPP) Colin Williams has explained, in detail, his decision to not grant three New Democratic Party (NDP) supporters a fiat to institute private criminal prosecutions against Winston Gaymes of Layou.

Gaymes was the returning officer in the Central Leeward constituency in the General Elections of December 9, 2015, and on June 22, 2016, Maxine Berkley, Vesta Hanson and Elgevia Parsons, all residents of Layou, through their lawyer Kay Bacchus-Baptiste wrote to the DPP, in an effort to institute Private Criminal Prosecutions against Gaymes.

Bacchus-Baptiste asked in her request that Gaymes be charged “in relation to the 321 ballots unlawfully counted as being cast in polling stations CLF and CLF1 in the Central Leeward Election held on the 9th of December 2015.”

What she meant, in layman’s terms, is that Gaymes counted ballots which he knew or had reason to believe were not validly cast in the election.

The fiats were refused by the DPP on October 28, 2016, but Bacchus-Baptiste is asking the DPP to rethink the matter, which was requested pursuant to section 69 of the Criminal Procedure Code, CAP 172 of the Laws of Saint Vincent and the Grenadines Revised Edition 2009.

“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,” Williams said in his letter.

According to the DPP in his October 28 letter, the three requests were identically worded and indicated that the fiat was requested for the prosecution of Winston Gaymes for “the repeated commission by him of an election offence contrary to s. 40 (f) of the Representation of the People Act” CAP 9 (and not CAP 10 as stated in the requests) of the Laws of Saint Vincent and the Grenadines Revised Edition 2009.

That sub-section provides that “Any election officer who wilfully counts any ballot paper as being cast for any candidate, which he knows or has reasonable cause to believe was not validly cast for such candidate, is guilty of an offence and liable, on conviction on indictment, to imprisonment for two years.”

Having received the request for the fiat, a response was sent to Bacchus-Baptiste inquiring, inter alia: Whether the Gaymes Affidavit was the sole proposed evidence to be adduced in the matter; if there were to be other witnesses, who are they and to provide their statements; what is the projected timeline for obtaining any additional statements; whether the applicants had lodged any complaint with the State authorities in relation to their allegations and if so what was the response and whether there was any consideration of the Full Code Test.

Bacchus-Baptiste provided two further Affidavits, one from the NDP candidate Benjamin Exeter and the other from his lawyer Maia Eustace. Those Affidavits were previously filed in December 2015 in the  Civil matter referred to earlier (Claim No: 195 of 2015) for an order to inspect the ballot boxes. Bacchus-Baptiste indicated that an additional statement, from Zita Barnwell, may be forthcoming.

She also provided a copy of the relevant parts of the Organization of American States (OAS) Electoral Observation Mission Final Report on the December 9 2015 poll and indicated that no complaint was previously lodged with the police and that the aspects of the Full Code Test considered were in favour of a prosecution.

But according to Williams, there is no doubt that Gaymes is an “election officer” under the Act, but the interpretation provision at section 2 covers a wide range of persons.

“It 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, said the DPP, who noted that the OAS Electoral Mission Final Report states that, “The number totals were compared and agreed and all the election officials were in agreement as to the numbers at the final count, which included the votes from the ballot boxes CLF and CLF1.”

Williams said that it is therefore not just Gaymes who would have acted in the particular manner, but also all the officials who concurred and agreed to the totals at the preliminary and final counts.

Williams said in his letter that what a successful prosecution has to show was that the election officer counted a ballot for a candidate other than the one for whom it was cast. Also, the provision is so worded that if the election officer counts a ballot that was not cast at all, then that official would be culpable, since the election official would know or reasonably believe that the vote was not cast for that candidate.

“To secure a conviction, the evidence would have to show beyond reasonable doubt that the election official – Mr Gaymes – counted a ballot or ballots for a particular candidate which either (a) he knew, or (b) reasonably believed was not cast for that particular candidate.

“If the available evidence in this case amounts to an offence, could anything more than a “technical” breach be established? Could what transpired at the final count be attributed to something other than a genuine mistake or misunderstanding? Could what happened have influenced the outcome of the result? If these, or any of these, are answered in the negative, then the Public Interest considerations would favour a decision not to prosecute,” said Williams.

The votes complained about in polling station CLF amounted to 222; a total of 121 votes for Sir Louis Straker and 101 for Benjamin Exeter. Even if all those votes were excised, because they were erroneously and incorrectly counted, Sir Louis Straker would still have won comfortably.

Williams said that the independent election observers from the OAS said that they did not discern any fraudulent or other activities at the Final Count which could have materially affected the outcome of the vote in which the ULP candidate won by 313 votes.

The OAS further concluded that there was, “a need for further training in rules and procedures for staff at all levels of the electoral machinery in order to eliminate the variations observed in the treatment of the ballots and ballot boxes.”

The DPP said that 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.

“…It must be noted that in all of the material provided to the Office of the Director of Public Prosecutions, there is not a single statement that was prepared specifically with regard to any alleged or presumed wrong-doing by Winston Gaymes. The submitted Affidavits were culled from another Court matter. Remarkably, none of the Applicants for the fiat provided a statement, not even to say that what their name was, where they resided, whether or not they were a voter in the Central Leeward Constituency, or to show how they have been impacted or affected by anything that may have gone wrong. More importantly, there is no witness statement that points to any mala fides on the returning officer’s part,” said Williams.

In his conclusion, the DPP noted that upon an application of the Full Code Test it is apparent that there is no reasonable prospect of conviction and 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.”

Williams said that the evidence is “patently inadequate and weak and of such poor and suspect quality” that one cannot “be satisfied that a reasonable prospect of conviction exists in relation to Winston Gaymes.”

The DPP also stressed that based upon a thorough review of the material and reflective consideration of the applicable law, it is clear 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.

But Bacchus-Baptiste is insisting that Williams rethink his decision and undertake an independent investigation.(LC)