Battle-weary Paula fights on
Published:Sunday | November 28, 2010 | 12:00 AM
Barbara Gayle, Staff Reporter
When asked last week if she planned to enter a nolle prosequi and have the case start over before another resident magistrate, Director of Public Prosecutions (DPP) Paula Llewellyn, QC, said: "That to me would be an abuse of process given the particular circumstances of this matter.
"I have a duty to be judicious in the exercise of my powers," she added.
After the case was dismissed, the DPP said: "We made the application in good faith. We will review and reconsider our position."
Based on the DPP's comments, it is quite likely that another attempt will be made tomorrow to have senior Resident Magistrate (RM) Judith Pusey recuse herself from the case on the basis of apparent bias.
Some lawyers are of the view that RM Pusey will give a true verdict based on the evidence presented before her.
Others have expressed the view that based on the claim of apparent bias made by the DPP, and the fact that the DPP had taken RM Pusey twice to the Supreme Court, the RM should withdraw from the case in the public's interest.
A retired judge said he knew of a case in which the then DPP, Huntley Munroe, QC, entered a nolle prosequi in a case because of comments Justice Graham Perkins (now deceased) had made many years ago when presiding in a case in the Home Circuit Court. The judge had met the prosecutors in the case at a cocktail party and expressed the view that they were wasting their time in the case. The prosecutors reported the incident to Munroe who entered a nolle prosequi and had the case started over before another judge.
Prominent attorney-at-law Hugh Wildman, who is a former deputy director of public prosecutions, says since the DPP is alleging apparent bias, from very early in the case, she should have entered a nolle prosequi and should have had it started de novo before another resident magistrate.
Similar cases
Wildman has had experience of such matters. He referred to the criminal case involving former bankers Melanie Tapper and Winston McKenzie, which was tried in the Corporate Area Resident Magistrate's Court several years ago. He said when the case first went before then Resident Magistrate Millicent Rickman, she made certain comments. Wildman said he reported what had transpired to the then DPP, Glen Andrade, QC, (now deceased) and he entered a nolle prosequi in the case. The nolle prosequi was challenged, but in the end, the case started before another resident magistrate, and Tapper and co-accused McKenzie were subsequently convicted.
Wildman said there were many authorities in which cases were stopped because of comments from the bench, or apparent bias. He referred to the case of Campbell versus Guelp from the Eastern Caribbean in which a magistrate had said to an accused man, "I remember you had come before me before", and the case was taken to the Judicial Review Court, which ruled that the utterances amounted to bias.
"You don't have to have a ruling to challenge a resident magistrate or a functionary for bias. A set of circumstances can give rise to bias, so you don't have to have an actual ruling or order to take the matter to a Judicial Review Court," Wildman explained.
DPP Llewellyn and RM Pusey were before the Judicial Review Court in September. On September 7, the DPP withdrew the claim she had filed against Pusey.
The claim was withdrawn after Llewellyn's lawyers accepted an indication from Pusey's lawyer, Jacqueline Samuels-Brown, QC, that no order was made for her to give a witness statement in the fraud case against Spencer and Wright. They are accused of benefiting improperly from the Cuban light-bulb programme.
The withdrawal was made in the Judicial Review Court after the court, comprising Supreme Court judges Lloyd Hibbert, Roy Jones, and Ingrid Mangatal asked Samuels-Brown, who was representing Pusey, to consult with her client to ascertain if what transpired in court on April 20 was an order.
Samuels-Brown said the following day that she had further consultation and the RM said it was not an order and was an invitation for Llewellyn to write a statement in the matter.
Sought magistrate's removal
Llewellyn had taken the issue to the Judicial Review Court seeking to have the RM's order quashed. She contended that on April 20, Pusey compelled her to give a witness statement as to what had taken place during an interview she had with Rodney Chin when he was Spencer's co-accused. Charges against Chin were subsequently dropped, and he is now the Crown's star witness in the case.
However, it took some amount of persuasion from the DPP's lawyers to accept the RM's explanation that the order had not been made. Diahann Gordon-Harrison, senior deputy director of public prosecutions, argued that they were not prepared to say that an order was not made and referred to sections of the notes in which she said the RM had in fact made the order.
Following the court's observations, Harrison said she had no choice but to accept the belated communication that it was not an order. The claim was then withdrawn.
In November, the DPP filed documents in the Corporate Area RM Court seeking to have Pusey recuse herself from the case on the grounds of apparent bias. Llewellyn alleged that Pusey, in the conduct of the case, had demonstrated apparent bias, which falls within the category of disqualification by conduct.
When senior Deputy Director of Public Prosecutions Caroline Hay sought to make the application for Pusey to recuse herself, Pusey said Spencer's case was not listed on her court sheet. Hay asked for the case to be relisted and the application heard later in the day or the next day, but when her attempts failed, the DPP took the issue to the Supreme Court.
Justice Horace Marsh granted an order which stopped Pusey from making a ruling as to whether the case should proceed or be thrown out, or from continuing to try the case until an application for leave to appeal to the Judicial Review Court was made last week Thursday.
The DPP was not successful in the application as Justice Lloyd Hibbert dismissed the application and ruled that the application was premature and ill-founded because there was no order from the RM which could properly form the basis for judicial-review proceedings.
Defence lawyers Patrick Atkinson, QC, and K. D. Knight, QC, came ready to challenge the DPP's application, but Justice Hibbert said there was no need for the accused to be joined as respondents.
The trial started last year, and Rodney Chin, who is facing cross-examination, is the third witness to testify for the Crown. There are approximately 27 other prosecution witnesses.