The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

KEOD Smith has been found guilty of contempt by a judge who is now considering what punishment to impose on him for accusations of bias made by him more than three years ago.

Smith, an attorney, is a former Progressive Liberal Party MP.

Justice Rhonda Bain had deferred her ruling on whether Smith and his lawyer, Derek Ryan, were guilty of contempt after Smith, on March 1, offered an apology and explanation that he never intended to impugn the professional reputation of a judge through a series of affidavits he created in support of a recusal application from an ongoing judicial review to which he is a party.

In a 41-page judgment handed down on Friday, May 5, Justice Bain stressed that the court “must protect the authority and dignity of the court”.

“The perceived political affiliation of a judge of the Supreme Court should have no bearing on the administration of justice,” the judge noted. “In his oral evidence, Keod Smith explained why he filed three affidavits: ‘Well my purpose was to obviously to have the matter placed before another judge because of what my thinking was at that time was.’

“‘I don’t know how to extricate myself from what I am but as far as I know, based on factual information that I had in my head that I did not think that – I wanted to exercise my right to have the matter recuse from Justice Bain at the time because of conflicts that I accessed in my own head.’”

However to that explanation, Justice Bain’s ruling noted that “there is no evidence that the court demonstrated any bias towards the sixth respondent on the basis of his alleged political affiliation.

“A litigant should not be allowed to request recusal of a judge based on the alleged political affiliation of a judge,” Justice Bain noted.

“...Judges are by their training and experience capable of exercising a high degree of personal and emotional detachment from the cases they are called upon to determine. This is especially so in The Bahamas, a small but highly politicised society where the political affiliation of most persons is presumed.”

Justice Bain further noted that when the affidavits were filed, Smith was an attorney of roughly 17 years standing at the Bahamas Bar “and should be aware that he cannot file affidavits scandalising the court with impunity.”

She also noted that this was not Smith’s first encounter with contempt citations as she recalled another case where he was found guilty of contempt of court by scandalising the court.

For his actions, he was to be committed to prison for 14 days if he failed to pay a $10,000 fine on or before May 23, 2008.

Concerning Derek Ryan, the judge said that based on Smith’s evidence, Mr Ryan did not prepare the affidavits in question which were executed and filed by the office of Keod Smith.

“Keod Smith admitted also that his secretary made the endorsement on the back of the affidavits before the affidavits were filed. Keod Smith further admitted that Derek Ryan advised him that the application for recusal was ill conceived. Shortly afterwards, Derek Ryan applied for leave to withdraw as counsel for Keod Smith in this matter. The leave was granted,” Friday’s ruling noted.

Justice Bain ultimately found that Ryan was not guilty of contempt of court but that Smith “was in contempt of court by scandalising the court”.

On the issue of a punishment for his actions, Justice Bain said she would have to consider that Smith attempted to withdraw the initial affidavits, Mr Ryan’s request to withdraw as counsel, the application to withdraw the recusal application, as well as the difficulty in effecting summons on both men to appear in court to show cause why they should be committed concerning said affidavits.

“The court is of the opinion that Keod Smith deliberately frustrated these proceedings by making himself unavailable for personal service. This matter was delayed to enable Keod Smith and Derek Ryan to be personally served. The court was advised that Derek Ryan is now resident outside the jurisdiction. After all attempts at personal service failed, the court had to order substituted service in The Nassau Guardian and The Tribune at a substantial cost.”

Justice Bain said she would also consider Smith’s apology to the court on March 1 and the case authority of Vishram Singh Raghubanshi v State of Uttar Pradesh in which it is stressed that apology to the court must be unquestionable in its sincerity.

Justice Bain noted that Smith’s apology “was not given until March 2017, more than three years since the filing of the affidavit”.

The judge made no order for costs from the proceedings.

Plea in mitigation and sentencing were scheduled for May 25.