High Court reserves judgement in case against DPP Colin Williams

Justice Gertel Thom has reserved judgement in a matter in which lawyers representing three New Democratic Party (NDP) candidates in the December 13, 2010, general elections have sought leave to apply for judicial review {{more}} of the decision by Director of Public Prosecution (DPP) Colin Williams to take over and discontinue private criminal proceedings brought against Government Ministers Clayton Burgin, Cecil McKie and Dr. Douglas Slater.

The matter, which was heard on Monday and Tuesday of this week at the High Court, before Justice Thom, saw lawyers for applicants Vynnette Frederick, Dr. Linton Lewis and Nigel Stephenson appealing the DPP’s decision on the grounds of apparent bias and procedural unfairness.

The three NDP candidates had brought charges against the government ministers under section 51(3) of the Representation of People Act, which says any person who before or during an election for the purpose of affecting the return of any candidate or prospective candidate makes or publishes false statements in fact in relation to the character or conduct of such candidate, is guilty of an illegal practice and liable to a fine of $750 and to imprisonment of one year.

The Act says a person convicted for this offence shall for five years from the date of conviction be incapable of being registered as a voter, voting in an election or being elected or appointed as a Member of the House of Assembly. Additionally, if the person who has been convicted was elected or appointed before his conviction, he cannot retain his seat as a Member of the House.

The private criminal complaints were a part of a set of matters which were lodged before Chief Magistrate Sonya Young, on Tuesday, January 11, 2011, by lawyers representing the NDP candidates. The lawyers alleged that the three Government ministers and Prime Minister Dr. Ralph Gonsalves contravened the Representation of the People Act during the political campaign leading to the December 13, 2010.

The following day, Young issued summonses in relation to six of the 10 matters, but declined to issue summonses in two matters related to Prime Minister Dr. Ralph Gonsalves and two related to MInister Clayton Burgin as being “frivolous and vexatious.”

On Thursday, January 13, 2011, Williams took over and discontinued the remaining six private criminal complaints.

In her arguments, Nicole Sylvester, representing the applicants, submitted that the remarks made against the NDP candidates were defamatory, and which in their affidavits, the candidates have declared were untrue and were attacks in on their personal capacity.

Sylvester said that within 10 hours of receiving the complaints, supporting witness statements and transcripts, the DPP took over and discontinued all six summons issued by Chief Magistrate, Sonya Young.

“In this case, the applicants had no alternative remedy…It is our submission that the DPP acted in excess of his statutory and constitutional powers on the basis of lack of procedural fairness and apparent bias,” Sylvester argued.

Sylvester contended that the applicants were excluded from ever having their enshrined right of presenting their complaint before a court. She said the highly exceptional remedy ought to apply in such case.

“It is therefore clear that these applicants have acted properly and the decision of the DPP to discontinue is subject to the supervisory jurisdiction of the court,” she added.

Speaking on behalf of the respondent, Senior Counsel Anthony Astaphan refuted claims by the applicants that the DPP discontinued all six private criminal complaints, within 10 hours of receiving them. Astaphan said the 10 hours was not from the date that the DPP found out about the possible charges, but rather 10 hours from the date he received the information on the matters from the lawyers.

“…So the DPP would have had sufficient time to read the relevant provisions of the rule and ascertain in his mind what would be required to meet the evidential test…,” Astaphan said.

Astaphan argued that it was not a case where the DPP had a large number of witness statements from the applicants to peruse.

“It was not like the DPP was given 500 pages of written statement or 20 pages of witness statements. In some cases there were one, three and four witness statements, none exceeding more than two to three pages of repetition,” he said.

Tackling the issue of apparent bias, Astaphan submitted that such an issue had been decided and determined in a previous case and that it is an abuse of process to regurgitate matters that were presented before the judge in the Michelle Andrews vs DPP case.

“How could you attack the integrity of the DPP like this?” Astaphan questioned.