DPP decision to nolle prosequi election cases upheld by Court

The decisions by the Director of Pubilc Prosecution (DPP) to take over and discontinue several cases related to the General Elections of December 2010 have been upheld by a High Court judge.{{more}}

On November 15, 2011, Justice Gertel Thom refused to grant leave for judicial review of DPP’s Colin Williams’ decisions in relation to complaints brought by Dr. Linton Lewis, Nigel Stephenson and Vynnette Frederick, all candidates of the New Democratic Party (NDP). The three had each filed two complaints against Clayton Burgin, Douglas Slater and Cecil McKie, respectively. The complaints, which were filed on January 11, 2011, were made under Section 51(3) of the Representation of the People Act.

Dr. Lewis complained that on November 23, 2010, Burgin, while addressing a political meeting at Belmont, said “You know what Linton is going around saying? He done win already. I understand that recently he went to a supermarket in Calliaqua and he met a lady there and he said to the lady: “I am going to sue you. I hear you said that I rape a 13 year old,” but the lady say, “I never say that, but you just mentioned it, Is it true?” That’s what the lady ask him. Since 2005, he has been threatening to sue people for one thing or the other. You can rest assured in East St. George and West St. George and Marriaqua you can rest assured that as a candidate for the Unity Labour Party, your 13 year old is safe with us.”

The judge ruled when the statement is examined carefully, Burgin does not suggest any part of the conversation as a fact.

“Mr. Burgin rather made a statement of fact that the conversation took place between Dr. Lewis and a woman and that Dr. Lewis had threatened to sue the woman and several persons.”

Justice Thom also said there is also no clear assertion of fact by Burgin that Lewis raped a 13-year-old girl or that he had intentions to so do, as alleged. The judge said that in order for a statement to be considered a statement of fact, there must be a clear assertion of fact. In this case, there was not such a clear assertion of fact.

Therefore, she said: “There is no realistic prospect of success that the DPP’s decision to discontinue on the ground of insufficient evidence was irrational or unreasonable.”

The evidence in support of the charges brought by Vynnette Frederick is contained in the witness statement of Ken Roberts, an elector of West St. George.

“Some time in or about October 2010, Mr. Cecil McKie, the proposed candidate for the Unity Labour Party, said to me that he would like me to support him in the upcoming general elections. I told him you know my position already and he then said to me, you rather support a girl who loves girls. I then said to him, what you mean, she is a lesbian, and he said yes,” Roberts’ statement said.

The learned judge said that there is no doubt that the statement complained of is a statement of fact that Frederick is a lesbian, which relates to Frederick’s personal character.

In her witness statement, Frederick stated that the statement complained of is false. The judge said there is evidence which shows that the statement was made, for the purpose of affecting the return of Frederick in the general election.

The judge said that while there is “evidence of each ingredient of the offences”, McKie, in a written statement, denied having such a conversation with Ken Roberts. Roberts also, in his written statement, does not seem to recall where the alleged conversation took place.

“The decision of the DPP will include an assessment of how strong the evidence would be at the end of the trial and an assessment of the defence. In this case, having regard to the witness statement of Ken Roberts, and the affidavit of the DPP of the statement of denial of Mr. McKie, I do not find that there is realistic prospect of success that the DPP’s decision to discontinue was irrational, perverse or unreasonable,” the judge ruled.

In the case of Nigel Stephenson, he alleged that Dr. Douglas Slater made a false statement directly and by innuendo that Stephenson was a pedophile.

“An examination of the transcript shows that Dr. Slater stated that Mr. Stephenson was not brave enough to attend in person before the Returning Officer on Nomination Day. Dr. Slater then asked the rhetorical question whether Mr. Stephenson did not attend because he was afraid the Police would arrest him or he was afraid of David Browne. Dr. Slater then proceeds to refer to an article written by one Wade Kojo Williams. Dr. Slater stated that Mr. Williams in his article, suggested that tax evaders, persons who owed Government Agencies large sums of money, violent cutlass yielding (sic) individuals, those who impregnate 13 year old girls, and those who defraud the NIS, their nomination should be rejected. Dr. Slater then goes on to give an explanation of pedophilia and ends his discourse by saying, “It is interesting what is the reason for him not turning up.”

The judge said that having examined the words, she is of the opinion that an ordinary and reasonable listener … would find the words to mean that Dr. Slater found it strange and unusual that Mr. Stephenson did not attend before the Returning Officer on Nomination Day and suggested possible reasons why Mr. Stephenson did not attend.

“Dr. Slater’s statement is a comment on Mr. Stephenson’s non-attendance at the nomination centre. Dr. Slater at no time made any statement of fact that Mr. Stephenson was a pedophile. Dr. Slater did not in any way link Mr. Stephenson to pedophilia,” Justice Thom said.

She said in relation to Stephenson’s application, she finds that there is no realistic prospect of success that the DPP’s decision to discontinue the private criminal charges by Stephenson was irrational, perverse or unreasonable.

Lewis, Stephenson and Frederick filed their private criminal complaints against Burgin, Slater and McKie, respectively, under Section 51(3) of the Representation of the People Act, which states that 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 offense 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.

On the same day the complaints were filed, the DPP requested copies of all statements relevant to the complaints by 10:30 a.m. the next day. The lawyers for the applicants complied with the DPP and provided all the statements.

On January 13, 2011, the DPP took over the complaints against Burgin, McKie and Slater, and discontinued them.

Lewis, Frederick and Stephenson applied for leave to seek judicial review of the decisions of the DPP to take over and discontinue the complaints on the ground that the “decisions of the DPP were ultra vires the powers of the DPP’s authority, irregular and procedurally improper, unreasonable, biased or alternatively tainted by bias, illegal and perverse.”

In her judgement of November 15, Justice Thom ruled that these applications “have no realistic prospect of success and, therefore, leave to seek judicial review is refused.”

No order of costs was made against Lewis, Frederick and Stephenson as the judge found that they did not act unreasonably in making the applications or in the conduct of the applications.