The bribery and extortion trial of former Public Hospitals Authority (PHA) Chairman Frank Smith hit another unexpected delay yesterday during the testimony of Minister of Health Dr. Duane Sands after the defense accused the prosecution of “embarrassing” them.
Sands took the witness stand at 10:07 a.m., earlier than expected.
Smith is accused of demanding and receiving $60,000 from Barbara Hanna after helping her company win the contract to clean the Critical Care Block of Princess Margaret Hospital.
He has denied the charges.
It was previously revealed in court that Hanna was awarded a second contract in 2017, valued at $1.8 million, three months after Smith was charged.
On Tuesday, it was noted that Sands approved the second contract for Hanna, following a recommendation from PHA’s tender analysis committee and a legal opinion from the Office of the Attorney General.
The defense was expected to begin the cross examination of BTC mobile engineer Wayden Colebrooke when court resumed yesterday.
When court started at 10:04 a.m., Damian Gomez, QC, Smith’s attorney, asked Colebrooke three questions before thanking him and taking his seat.
Colebrooke was dismissed and Sands was called to the stand.
Edward Jenkins, QC, lead prosecutor, asked Sands general questions about himself – where he studied, whether he was a medical doctor, and when he was elected to office.
During the questioning, Jenkins asked Sands about hospital cleaning and if it was important.
Sands explained that a sterile hospital is of critical importance to patient care and the prevention of hospital acquired infections.
Jenkins then asked Sands about the tender process and awarding of contracts with regard to his ministry.
Sands said contracts over $250,000 require the approval of the minister.
The minister also gave details about the tender process and the report from the tender analysis committee.
Jenkins asked Sands if the board could reject or accept a committee’s report.
Sands said they could accept, reject or revise any recommendation.
Jenkins asked Sands if a tenders analysis committee recommendation always goes to the board.
Sands said no.
Asked when it hadn’t gone to the board, Sands said he believes it may have occurred in 2014 and 2015.
Smith’s attorney, Keith Knight, QC, then stood up repeating, “no” several times.
He argued that Sands was referring to matters that were not included in his witness statement – which was submitted to the defense.
“…I am being embarrassed when I’m hearing about 2014 and 2015 and I know not what had happened,” Knight said.
He argued that “fairness dictates” that he have a signed statement from Sands with the additional evidence.
“I cannot sit here and be embarrassed,” Knight said.
Jenkins noted that he will ensure that the defendant has a fair trial “in every single sense of the word”.
“…I have no intention of hiding behind any rule that may restrict that,” Jenkins said.
Chief Magistrate Joyann Ferguson-Pratt asked Jenkins how long it would take the prosecution to have a new statement from Sands.
Jenkins said it will take some time and noted that a police officer has to take the statement.
Knight noted that he “wanted to know what Sands is going to say”.
“What is his testimony expected to be based on the statement he signed,” Knight said.
Ferguson-Pratt responded that “there is no one more than me who wants this matter expedited”.
“…But it cannot be expedited at the expense…of the defendant,” she said, noting that Smith is facing “very serious” charges.
Prosecutor Kendra Kelly said the witness statement was provided to the defense.
She said Sands’ statement indicates what the prosecution intends to rely on.
Kelly further argued that a witness statement is “in fact a summary of the evidence we intend to lead”.
“It would never be comprehensive,” she said.
“It will never be word for word exactly what the witness will say in the box.”
Ferguson-Pratt told Kelly that she was “with you to the extent that the Crown has a duty to disclose its case”.
She said the Crown may choose to do so in summary form “but when you give the summary form, you cannot, in fairness to the defense, rely upon extraneous issues, which at the end of the day go to the crux and the core of this matter”.
“How can this court accept that?” Ferguson-Pratt asked.
Kelly said she accepted Ferguson-Pratt’s concerns and that the other issues were not “anticipated” at the time Sands gave his witness statement.
“Pause right there,” Ferguson-Pratt said.
“That was not anticipated? Madam prosecutor, this is your case.”
After further back and forth, Jenkins said the prosecution will try to ensure that the defense is not “embarrassed”.
“I don’t want my learned friend to feel aggrieved,” Jenkins said.
Knight said, “This situation is simple.
“We are embarrassed only when the rules are broken. We can’t know what questions they would want to ask.”
Knight noted that his guide is Sands’ statement.
“Had it been done properly from the beginning the embarrassment would not have happened,” Knight said.
Jenkins said that Sands’ statement speaks to contracts that go through the tender process at PHA. Jenkins said that questions of clarification “as to what that means were inevitable”.
But Jenkins said he wants to be “doubly sure that I cover any potential side wind that might cause any embarrassment”.
He said a new statement from Sands will not take five minutes.
When asked when the statement would be ready, Jenkins said a realistic assessment would be early afternoon (yesterday).
Ferguson-Pratt said, “I don’t think we can continue today.”
The matter was adjourned to today.