The Tribune

By Nico Scavella

Tribune Staff Reporter

nscavella@tribunemedia.net

THE chief magistrate yesterday denied a request to have former PLP Senator Frank Smith’s bribery and extortion trial thrown out over allegations of “prosecutorial misconduct” concerning the Crown’s late bid to introduce key evidence against the accused, although reprimanding prosecutors for conducting “a piecemeal type of disclosure” to date.

Chief Magistrate Joyann Ferguson-Pratt said while the court is “unhappy” that Smith’s trial will be delayed for another two months as a result of the Crown’s request to have more time to secure banking information of “critical importance” to its case, it would be “premature” to discharge Smith’s matter, and thus ruled it should continue

The judge also noted concern about the fact that six months after Smith’s initial arraignment, matters pertaining to the root of the case are just being brought to the surface. She said not only is the Crown’s application “contributing to delay”, she has been effectively hindered in the matter.

The failed bid to have the matter thrown out came after Smith’s lead lawyer Keith Knight, QC, said the Crown’s case has been “elevated” from shoddy to “sinister” and “outrageous” after the prosecution said it needed more time to obtain banking information from various banking institutions pertaining to Barbara Hanna via court order.

Some of the “plethora” of documents the Crown now intends to serve on the accused, Mr Knight maintained, contained some of the same information his colleague Damian Gomez, QC, was seeking since the inception of Smith’s matter before the court.

Other documents the accused has only recently been served with, Mr Knight contended, concern Mrs Hanna allegedly repaying a loan on behalf of her son Adrian, notwithstanding her previously maintaining that she never co-signed on a loan with her son, and that if he ever did take out a loan, he did it himself.

Mr Knight also lamented the particulars of a report dated February 26, 2018, by the investigating officer in the matter, which he said he only recently received, in which Mr Knight claimed the officer engaged in the “selective omission” of certain portions of Mrs Hanna’s official statement to police.

According to new lead Crown attorney Edward Jenkins, QC, the prosecution has, subsequent to him being formally engaged in the matter, requested certain information concerning Bank of The Bahamas and Commonwealth Bank. That information has not yet been fully prepared, however, it is being worked on, he indicated.

Fellow prosecutor Anthony Delaney, who officially surrendered the role of lead Crown counsel to Mr Jenkins during Monday’s proceedings, suggested to the court the documents could take a week or two to be completed.

When questioned by the chief magistrate if based on the Crown’s submissions the proceedings are effectively halted, Mr Jenkins suggested as much by saying the Crown needs to resolve the issue concerning the bank evidence as it goes to the “heart of the case”. He also said it was crucial for the “just resolution” of the trial.

While noting the court was not happy with the delay, she cleared her calendar to accommodate the matter.

However, Mr Knight, who on Monday had called the Crown’s request to provide additional evidence as “shoddy”, said he now elevates their application to “sinister” and leads him to believe there has been “prosecutorial misconduct”. He thus urged the chief magistrate to dismiss the case on those grounds.

However, Mr Jenkins countered by stating if the defence is alleging an abuse of process on the part of the Crown, and that its client cannot have a fair trial as a result, then that issue would have to be determined by the Supreme Court.

However, the chief magistrate said in order for the matter to be properly “ventilated”, the defence must be aware of the Crown’s case beforehand. She thus questioned why the Crown executed such a “piecemeal type of disclosure” to date, and at such a late stage in the virtual complainant’s cross examination, when it was the Crown that brought the charges against Smith.

Mr Jenkins responded by stating the evidence the Crown relied upon when it initially arraigned Smith in August of last year was already disclosed.

When the chief magistrate suggested such matters are usually done at the beginning of a case, and that Mrs Hanna is almost at the end of her cross examination, Mr Jenkins stated that upon coming to The Bahamas after being engaged in the matter, and upon being apprised of the contents of the transcripts for the matter, he asked questions that resulted in the production of certain documents.

Mr Knight then read the particulars of a report by a Superintendent Johnson, the investigating officer in the matter, which he said should have been disclosed to the defence and/or the court prior to just recently.

In that report, Mr Knight claimed the investigating officer allegedly omitted certain parts of Mrs Hanna’s statement.

This, Mr Knight maintained, ought to be “sharply distinguished” from a no-case submission, because it is not a matter of credibility, but rather an issue concerning the alleged manipulation of a statement, and how the investigating officer conducted himself.

However, the chief magistrate stated that unless and until she can hear from Supt Johnson via his testimony, cross examination and re-examination if need be, she cannot be properly called upon to determine if his conduct was inappropriate. She suggested it would be “premature” to adjudicate on that issue otherwise.

Nonetheless, Mr Knight, taking one last stab at his bid to have his client’s trial dismissed, submitted that once the court is provided with material that indicates that the fairness of the trial has been “adulterated”, the court’s duty is to immediately intervene and bring an end to the matter.

He further charged that fairness on the part of the Crown, which he said includes police officers, begins from the time of the initial arrest straight up to the disposal of the matter, and the relevant duties are divided between the police and legal representatives of the state.

And where it is demonstrated on documents produced by the Crown that something untoward took place and that such an issue affects the fairness of the trial, Mr Knight said the case ends because fairness must attend each step of the judicial process.

“Once it rears its ugly head, then the matter ends,” he charged.

Chief Magistrate Ferguson Pratt noted Mr Knight’s submissions, but said dismissing the matter would be a “premature” decision.

She also noted that on the docket concerning Smith’s initial arraignment, Supt Johnson was listed as one of the witnesses, and as the Crown is obliged to call all witnesses to testify in court, she would wish to hear from the investigating officer concerning his involvement in the matter and Mr Knight’s issues with his report.

She subsequently adjourned the matter to May 14-18.

Smith is facing 15 criminal charges concerning his alleged solicitation of $65,000 in bribes from a woman he is said to have assisted in getting a contract at the Public Hospitals Authority where he served as chairman. He is currently out on $50,000 bail.