The Tribune

By Nico Scavella

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has unanimously rebuked the Crown’s appeal of former PLP Senator Frank Smith’s acquittal of multiple bribery and extortion charges, marking the state’s second loss in what PLP supporters have called a political “witch hunt” against him.

Appellate Justices Jon Isaacs, Stella Crane-Scott, and Roy Jones concurred that the Crown’s appeal was “unsustainable”, as it failed to show what was “so clearly wrong” with Chief Magistrate Joyann Ferguson-Pratt’s decision to acquit Mr Smith of the 15 charges. 

The appellate judges conceded the existence of “procedural missteps” on the chief magistrate’s part, and acknowledged that there were a “number of conclusions” the chief magistrate arrived at that were not “entirely logical or sound”.

However, they said such issues “did not impact the result of the case to any significant degree”, as there was “an abundance of examples of doubtful testimony” from the Crown’s main witness Barbara Hanna that rightfully informed the chief magistrate’s decision.

And as the case “rested solely on the reliability” of Mrs Hanna’s evidence, the appellate judges said it would have been an “affront to justice” to have kept Mr Smith “on tenterhooks longer than what is absolutely necessary” and require him to answer to the allegations.

“We fail to see the utility or the justice in requiring an accused person to make a case in circumstances where the trier of facts has heard the evidence on which the prosecution relies to prove its case and has concluded the witnesses who testified in support of the prosecution’s case are not credible or reliable,” the appellate judges said.

Subsequent to the court’s oral ruling, Crown attorney Neil Braithwaite indicated the Crown’s intent to appeal the decision to the London-based Privy Council, and requested a date be set for the Crown’s application for leave to appeal to be heard. 

However, such a request was soundly rebuked by the appellate judges, particularly Justice Crane-Scott, who said courts take a “dim view” of what she said is the “very unusual” practice of attorneys standing up “in the face of the court” to indicate their intent to appeal. 

Meanwhile, Justice Isaacs noted that the Crown faced an even “more fundamental” issue: “You haven’t even read the decision of the court.” 

When Mr Braithwaite maintained the Crown’s position, Justice Milton Evans, sitting in for Justice Jones who was unavailable, concluded: “And you have assumed that the decision is wrong without having read it?”

“We do not need to hear this at this point in time, which was the point I made initially,” Justice Crane-Scott concluded. “So put your house in order, and at some point, a panel of this court will sit and hear the application.” 

‘Politics’

After the hearing, Mr Smith gave thanks to God, his wife and family, and his legal team, spearheaded by senior Jamaican attorney Keith Knight, QC, who was not present yesterday, for supporting him in their various capacities throughout the trial. 

He also gave thanks to “the framers of our constitution” who enshrined the country’s “system of checks and balances” that allowed for “justice to be done and also seen to be done”.  

PLP Leader Philip “Brave” Davis, QC, meanwhile, said yesterday’s ruling represented a “great day for the rule of law” that should give the country further “confidence” in the judiciary.

However, he said Mr Braithwaite’s submissions in court were an “obvious” indication of the “politics” that have permeated both the trial and the appeal.

“The fact that the representative of the attorney general or the (director of public prosecutions) can get up in the face of the court—of course to be spanked by the court—to say they want a date for an application for leave to appeal to the Privy Council, that in itself is pure politics,” he said. “And as the lawyer was reminded, it was very inappropriate for him to have said that at that time. And it is inappropriate.” 

Mr Davis added: “In fact, it’s questionable whether or not the Court of Appeal has the jurisdiction to grant leave to appeal in matters of this nature. And the process as I recall is that you have to go directly to the Privy Council to seek special leave to appeal. And in those circumstances, I think the court was right to admonish counsel and to put him in his place, for in the face of the court, almost insulting the court by asking for a date to be fixed to apply for leave to appeal to the Privy Council.”

In February, Chief Magistrate Ferguson-Pratt acquitted and discharged Mr Smith of 15 criminal charges against him.

Almost two years earlier, Mr Smith was arraigned before the chief magistrate on 13 counts of extortion, and one count each of attempted extortion and bribery.

The Crown’s case was that between April 2016 and April 2017, in respect of his duties as a public officer, Mr Smith demanded and obtained $5,000 per month from Mrs Hanna.

He was also alleged to have attempted to extort another $5,000 from Ms Hanna in May 2017.

Concerning the bribery charge, it was alleged that he solicited $5,000 a month from Mrs Hanna for aiding her in getting a contract with the Public Hospitals Authority (PHA). 

In her decision, however, the chief magistrate said there were numerous “inconsistencies” and “discrepancies” in the Crown’s case, which she further said was “undermined” by its own witnesses.

In particular, the chief magistrate said there were “inherent inconsistencies” throughout Mrs Hanna’s evidence, and that her claims were “manifestly unreliable” and ran contrary to “reason and all common sense”.

Chief Magistrate Ferguson-Pratt also criticised both Health Minister Dr Duane Sands and National Security Minister Marvin Dames for the “egregious” way in which they interacted with Mrs Hanna prior to a police investigation into her claims, charging that their conduct gave the appearance of a “political flavour to a curious bystander.”

The government appealed the chief magistrate’s decision, asserting that the judge took “extraneous matters into consideration” in her decision and that her conclusion was “unreasonable or could not be supported having regard to the evidence.”

In particular, Garvin Gaskin, the director of public prosecutions, who represented the Crown on appeal, said it was “wholly inappropriate” for the chief magistrate to have not only scolded Dr Sands and Mr Dames, but also connect it to her decision to acquit Mr Smith.

However, the appellate court dismissed the appeal because it did not show what was so improper about the chief magistrate’s decision that would require them to “interfere” with it.

And concerning the chief magistrate’s comments about Dr Sands and Mr Dames, the appellate judges said they “can appreciate” her concern “with how the prosecution of this matter progressed bearing in mind Mrs Hanna’s testimony”.

“We are satisfied that the chief magistrate did not err when she had regard to Mrs Hanna’s reliability as a witness when determining whether the prosecution’s evidence disclosed a prima facie case bearing in mind that the only evidence incriminating the respondent emanated through Mrs Hanna,” the appellate judges said. “In our view therefore, this appeal is unsustainable and accordingly, is dismissed.”