DPP tackles Pusey

Daraine Luton and Barbara Gayle, Staff Reporters

Director of Public Prosecutions (DPP) Paula Llewellyn yesterday obtained an order from the Supreme Court stopping Senior Resident Magistrate Judith Pusey from going ahead on Monday with the fraud and corruption trial against former junior minister Kern Spencer and co-accused Coleen Wright.

The DPP is seeking to have Pusey recuse herself from the case on the grounds of apparent bias.

Attempts were made yesterday in the Corporate Area Resident Magistrate's Court to make an application to have the case relisted so that a special application could be made today before Pusey for her to step down from the case, but Pusey said the matter was not listed in her court sheet. Documents to have the case relisted were filed on Tuesday afternoon.

Request denied

Senior Deputy Director of Public Prosecutions Caroline Hay, who represented the DPP, had asked Pusey if the matter could be heard later in the day or this morning but the request was not granted.

The DPP took the matter to the Supreme Court and Supreme Court judge Horace Marsh, on hearing submissions from Hay, granted a stay of the trial proceedings, particularly on the ruling as to whether there was an abuse of the process in Spencer's case.

Pusey was to rule on Monday whether the case should be thrown out based on applications made by the defence.

Marsh directed that his order be served on Pusey and the parties attend the Supreme Court on November 24. On that day, the DPP will make an application for leave to go to the Judicial Review Court to bar Pusey from continuing with the trial. The DPP wants the case to start afresh with a different resident magistrate.

The DPP has claimed in court documents that Pusey has "demonstrated apparent bias" in the matter, which disqualifies her from continuing the case.

Disqualification by conduct

The prosecution claims that Pusey's "apparent bias" falls within the category of disqualification by conduct.

"The impugned conduct includes language and judicial posture against the prosecution and its agents," the court documents state.

The prosecution also blamed the magistrate's posture for the slow pace of the trial, arguing that it "effectively caused stay of the prosecution's case for a period of seven months and prevented it from proceeding".

"Considering the conduct of the trial judge, the fair-minded and informed observer would have a reasonable apprehension or suspicion of bias and, as such, public trust in the judicial process is under threat," the DPP stated in the court document.

Only three of the approximately 30 witnesses have so far testified in the matter. The trial started in June 2009 - approximately nine months after it was first set to get under way in September 2008.

Merely a request

Yesterday's move by the prosecution represents the second time during the trial that the prosecution has locked horns with the magistrate. Llewellyn, who is leading the charge for the Crown, dragged Pusey before the Supreme Court after Pusey had instructed her to provide the defence with further disclosure. Llewellyn later withdrew the case after Pusey said it was not an order but merely a request.

Spencer, the member of parliament for North East St Elizabeth, and Wright are accused of benefiting improperly from the implementation of the Cuban light-bulb programme over which Spencer had responsibility as a government minister.

The energy-saving programme, which had a budget of $276 million, involved the replacement of incandescent bulbs with fluorescent bulbs in households islandwide.

Defence counsel have moved for the case against Wright and Spencer to be discontinued at this point, arguing that Llewellyn is guilty of professional misconduct. The claim centres around the circumstances under which Chin, a former co-accused, had the charges dropped against him. Llewellyn has admitted to meeting with Chin in his lawyers offices before she dropped the charges against him.