Crown prosecutors are seeking a second trial for former Progressive Liberal Party Senator Frank Smith on charges of bribery and extortion.
Smith was acquitted in February of allegations that from 2016 to 2017 he abused his position as Public Hospitals Authority (PHA) chairman to demand and receive bribes totaling $60,000 from cleaning company owner Barbara Hanna.
Chief Magistrate Joyann Ferguson-Pratt deemed Hanna an unreliable and untrustworthy witness.
Appearing before justices of appeal Jon Isaacs, Stella Crane-Scott and Roy Jones yesterday, Director of Public Prosecutions Garvin Gaskin argued that Ferguson-Pratt’s decision was “severely flawed having regard to the evidence lead”.
Gaskin asserted, “Evidence of the offenses as charged were met evidentially.”
Gaskin said that Hanna, through extensive cross-examination, maintained that she paid $5,000 monthly in bribes to Smith because she feared she would lose her contract.
By contrast, Smith’s lawyer K.D. Knight, QC, said that the chief magistrate correctly assessed the evidence before she upheld a no case submission.
For his part, Gaskin contended that the magistrate was only required to determine if there was some evidence, regardless of how tenuous, to support the charge.
Gaskin said, “The magistrate, throughout her ruling, sought to analyze the evidence not with a view to determine whether a prima facie case had been made out, but with a view to determining whether the case had been proven beyond a reasonable doubt.”
Gaskin said that “contrary to law, the magistrate made findings” in her ruling on the no-case submissions.
Gaskin was of the view that the decision of the magistrate was “erroneous and based on the wrong legal principle”.
As an example, Gaskin referred to a portion of the ruling where Ferguson-Pratt determined that the allegations could not be supported because of evidence that Hanna and Smith had a “perfectly harmonious commercial relationship” where she borrowed money from his company before and during the alleged extortion.
Gaskin described the magistrate’s assessment as an “improper determination” and said that “the payment of the loan was not inconsistent with the allegation of extortion”.
Gaskin said that the magistrate wrongly embarked on “an end of trial exercise for the tribunal of fact”.
However, Knight said that because of the magistrate’s fused roles as the authority of the law and the facts, she was correct in her ruling and exercised her “proper and lawful function” by acquitting Smith.
Knight said that Ferguson-Pratt did not short circuit the process, but ended “what would otherwise be a farce”.
Gaskin said the magistrate made speculative remarks in her ruling and considered “extraneous issues”.
Referring to evidence of Hanna’s initial denials of FINCO having a judgment against her husband, Edgar, for an unpaid mortgage, Ferguson-Pratt, said, “Barbara Hanna is prepared to be dishonest when it suits her purpose.”
Gaskin said, “The mortgages and loans somehow crystallized into a significant finding of dishonesty.”
Gaskin said the magistrate made “wholly inappropriate remarks” regarding the “unorthodox conduct” of Cabinet ministers Dr. Duane Sands and Marvin Dames that she connected to her deliberations.
Gaskin asked for the appeal to be allowed and for the matter to be remitted for trial before another magistrate.
The appeal continues today.