A week after prosecutors filed an appeal against a magistrate’s decision to throw out the corruption case of former Progressive Liberal Party (PLP) Senator Frank Smith, an attorney for Smith claimed yesterday his side was not served the notice of the appeal within the allotted seven-day timeframe.
“There’s been no service of the notice of appeal or the intention to appeal and until we are served, we treat it as a non-occurrence and at this point the time for service has expired,” said Damian Gomez, QC, while on the Guardian Radio 96.9 talk show “The Revolution” with host Juan McCartney.
“…You have to serve the accused or his counsel and neither Mr. (Philip) McKenzie (Smith’s other attorney) nor I have been personally served with anything.
“Secondly, it must be served within seven days and that seven-day period has expired.
“Mr. Smith has confirmed to me that he has not been served. That means, in order to proceed, the attorney general’s office or the director of public prosecutions will need to get leave to serve out of time.”
Gomez said until the government does what it is supposed to do, he is entitled to ignore it.
He also noted that, “We can file a notice of objection of us not having been served.”
Several attempts to reach Director of Public Prosecutions Garvin Gaskin yesterday were unsuccessful.
When reached for comment, Attorney General Carl Bethel said the matter is to be taken up in court.
“The director of public prosecutions quite properly is a man who is concerned with the law and the courts and not concerned with public debates,” Bethel said.
“I think if you look at the way Robert Mueller, as an example in the U.S., conducts himself, this is the standard towards which it seems to me that the DPP is striving. And nowhere in the region does the DPP engage in a public debate about how they exercise their discretion or their authority.
“But that being said, I’m the attorney general, and I hear what Mr. Gomez says and my answer to Mr. Gomez is, if you have a legal point, the proper venue to take your point is a court of law, not the court of public opinion.
“Take your matter to court if you feel there has been some process that is questionable. The proper place, as a senior lawyer and a Queen’s Counsel, he should know this better than most, and he’s an extremely experienced lawyer…is a court of law. And I’m sure if he took his point in the proper forum, that it would receive proper address.”
Asked specifically whether Smith’s lawyers were served notice of the appeal, Bethel said, “I am similarly unwilling to discuss a pending criminal matter. With all respect, a matter such as this should be ventilated in court and if ventilated in court, the truth will come up one way or the other.
“It’s the responsibility of the prosecutor to do their job. If they do it correctly, a court will uphold them. If they don’t, a court will overrule them. I’m not going to get into a general discussion about whether or not the prosecutor has performed a function. I can’t do that because that’s a matter for the court.
“All I am saying is if Mr. Gomez has a legal point he wishes to make, the best place for him to make it is in court where we have a fair and independent judiciary who will properly assess his case. But the court of public opinion is not the proper venue for a legal matter.”
Smith was arrested in July 2017 and accused of demanding and receiving $60,000 from Barbara Hanna from 2016 to 2017, after allegedly helping her company win the contract to clean the Critical Care Block of Princess Margaret Hospital.
In her ruling, Chief Magistrate Joyann Ferguson-Pratt said there was “not a scintilla of evidence to support the fact that there was a meeting between Barbara Hanna and the accused prior to the award of the contract”.
The ruling came after Smith’s attorneys made a no case submission.
Prosecutors listed six grounds for the appeal.
They said the magistrate took “extraneous matters into consideration” in her decision and that the decision was “unreasonable or could not be supported having regard to evidence”.
They argued that “evidence was wrongly rejected or inadmissible evidence was wrongly admitted by the magistrate, and that in the latter case there was not sufficient evidence to sustain the decision”.
However, Gomez insisted yesterday that, “The grounds that they’ve published in the paper, really are very, very weak and not arguable.”
Additionally, Gomez said Smith’s attorneys have been instructed to proceed with a civil action against the government.
“We intend to, at the appropriate time, issue a writ and it’s being drafted, and we will be suing the government for malicious prosecution,” he said.
“Where a person brings a criminal proceeding without any belief in the truth of that proceeding, that is prima facie malicious. But were you able to show from other evidence that it was actually activated by malice, that even increases the chance of success. In this case, the entire proceeding was bizarre, I mean surreal.”
Education: Vrije Universiteit Brussel (University of Brussels), MA in Mass Communications