The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

A Supreme Court judge has ordered Keod Smith, former PLP member of parliament, to be committed to prison for 14 days for accusing her of bias in a series of affidavits more than three years ago.

However, Justice Rhonda Bain, in her written ruling yesterday, said the order of committal “shall be suspended” on the condition that Smith pay a $20,000 fine before June 28. The Tribune understands that Smith and his legal team are in discussions on a way forward concerning the ruling.

Nonetheless, in her ruling, which was obtained by The Tribune, Justice Bain stressed that “scandalising the court is a serious offence and should be punished in a way to deter other persons from following the action of the contemnor” in this case, Keod Smith.

In 2014, Smith was found guilty of contempt of court for impugning Justice Bain’s professional reputation through a series of affidavits he created in support of a recusal application from an ongoing judicial review to which he is a party.

Smith, the former attorney for controversial Canadian fashion designer Peter Nygard, had filed a series of affidavits claiming that Justice Bain should recuse herself from a judicial review proceeding as she allegedly made a series of decisions based on her affiliation with the Free National Movement (FNM).

He alleged the judge once worked under former Prime Minister Hubert Ingraham, that she was appointed to a high-ranking position in the Attorney General’s Office because of her ties to the FNM and that her two sons were fathered by a person he claimed is a close friend and advisor of Mr Ingraham.

Smith also alleged that Justice Bain had made several rulings in favour of Fred Smith, QC, who in the past had been affiliated with the FNM, and “can only be explained as coming about as a result of her bias.”

According to Justice Bain’s ruling, Smith admitted to the court that he prepared and filed the affidavits himself and that even though the affidavits were endorsed with the firm name of Ryan & Co, Smith’s former attorney Derek Ryan did not assist with the preparation of the affidavits.

On March 1, more than three years after filing the affidavits, Smith offered an apology and explanation to Justice Bain that he never intended to impugn her professional reputation, and attempted to show cause why he and Mr Ryan should not be committed to prison.

On May 25, while making a plea of mitigation, Smith’s lawyer, Elliot Lockhart, QC, made a number of submissions on matters the court should take into consideration in sentencing Smith. Mr Lockhart sought to have Smith reprimanded instead of being hit with a custodial sentence.

Those submissions in mitigation included Smith being “medically challenged” and suffering from high blood pressure which can be “dangerously high” on occasion, forcing him to work from home; Smith’s various endevours in public life, such as serving as a MP from 2002 to 2007, and Smith not being convicted of any criminal offence.

At the time, Smith’s attorney also attempted to have the fifth, sixth and seventh affidavits he filed on January 14, January 20 and January 27, 2014 respectively expunged from the record.

However, in deliberating on an appropriate sentence for Smith, Justice Bain took into consideration a number of factors, such as the “effect of the contempt on the administration of justice;” the need to “deter the contemnor and others from committing further contempt;” and the “presence of a prior conviction for contempt,” the latter of which is applicable to Smith.

Justice Bain also referred to several local and international cases of contempt of court previously heard before either the Supreme Court or Court of Appeal to help constitute her ruling.

“The court must then consider the seriousness of the contempt and the contemnor’s culpability in determining whether a custodial or some other type of sentence is the most appropriate in the circumstances,” Justice Bain wrote. “Scandalising the court is a serious offence and should be punished in a way to deter other persons from following the action of the contemnor.”

She added in a later paragraph: “In sentencing for contempt, the court is both punishing the contemnor for the breach and seeking to ensure compliance with future orders. The court must determine the appropriate punishment or penalty. If a custodial sentence is warranted the court must then consider whether the sentence can be suspended.”

Justice Bain ultimately ruled that a custodial sentence is “appropriate” given the circumstances surrounding the matter, simultaneously dismissing Mr Lockhart’s pleas to have his client simply reprimanded for his actions.

The judge also noted in her ruling that Smith “is a counsel and attorney at law with upwards of 19 years at the Bahamas Bar” and as such “has an obligation to respect and maintain the administration of justice and to comply with the Bahamas Bar (Code of Professional Conduct) Regulations.”

“The court finds that the contempt by Keod Smith is serious and a reprimand would not be appropriate under the circumstances,” Justice Bain concluded. “A reprimand would not serve as a deterrent.”

Smith’s custodial sentence stems from a judicial review application filed by Save The Bays—formerly the Coalition to Protect Clifton Bay—which is challenging an application by Mr Nygard to further develop his Mayan-themed development in Lyford Cay and gain a lease for Crown land reclaimed from the sea without official approval.