The Court of Appeal on Wednesday unanimously refused to order a retrial of former Progressive Liberal Party (PLP) Senator Frank Smith on bribery and extortion charges, as it dismissed an “unsustainable” appeal by the Crown.
Prosecutors had asked the court to set aside the decision of Chief Magistrate Joyann Ferguson-Pratt to acquit Smith because she found his accuser, Barbara Hanna, was an unreliable witness.
The court agreed that Ferguson-Pratt made some mistakes in her decision, but was satisfied she “did not err” by considering Hanna’s reliability in deciding if there was enough evidence for Smith to present a defense to the charges.
The three-judge panel of Justices of Appeal Jon Isaacs, Roy Jones and Stella Crane-Scott, said, “Having formed the view that Mrs. Hanna was not credible and there being no other evidence inculpating the respondent in any offense, it would have been an affront to justice to require the respondent to make a case.”
Shortly after the PLP’s defeat in the May 2017 general election, Smith, 53, was charged with abusing his position as chairman of the Public Hospitals Authority (PHA), by demanding and receiving bribes from cleaning company owner Hanna over the award of a 2016 contract for the critical care block of the Princess Margaret Hospital (PMH).
PLP Leader Philip Davis, who, according to the evidence, sent Hanna to Smith in 2015 after she had not heard from the tender board in respect to her bid, said yesterday that the prosecution was politically motivated.
Hanna said after she received the first payment of her $520,210.68 annual contract, Smith called her and demanded $5,000.
While Hanna was allegedly paying Smith for the contract, she was also repaying multiple small loans she had with his company Pouland.
The court said, “We would accept that a number of the conclusions arrived at by the chief magistrate in her assessment exercise are not entirely logical or sound. For example, her view that Mrs. Hanna securing loans from Pouland was inconsistent with the allegations of extortion made against the respondent.
“There could be any number of explanations for Mrs. Hanna’s choice of Pouland, not the least of which is that she already had a loan relationship with that company, and so securing a loan from the company may have been easier given that relationship than going to an institution with which she had no familiarity. In any event, Mrs. Hanna explained her rationale for getting a loan.”
The court also highlighted another illogical conclusion by the magistrate.
“Additionally, the chief magistrate’s conclusion that Mrs. Hanna’s allegations against the respondent may be false because she failed in her bid to get a $2,000,000.00 cleaning contract for the cleaning of the Sandilands Rehabilitation Centre lacks a logical premise and is not reasonable in the circumstances.”
Despite this, the appellate court noted the case depended solely on Hanna’s reliability, as call records intended to “buttress the prosecution’s case, failed to come up to proof when it was revealed that certain inconsistencies existed between the billing records of the respondent and the log of telephone calls provided by the prosecution”.
The prosecution contended that the chief magistrate “jumped the gun” by making her decision when she did.
But the court said it was not necessary to prolong the case.
“We fail to see the utility or the justice in requiring an accused person to make a case in circumstances where the trier of facts has heard the evidence on which the prosecution relies to prove its case and has concluded the witnesses who testified in support of the prosecution’s case are not credible or reliable,” the ruling stated.
“The magistrate has the same right as the jury to acquit the accused at the close of the prosecution’s case if she cannot accept the evidence either because it is conflicting or discredited by cross-examination that no reasonable tribunal can safely convict on it.
“The question must be asked, why, then, must an accused be kept on tenterhooks longer than what is absolutely necessary? Having formed the view that Mrs. Hanna was not credible and with there being no other evidence inculpating the respondent in any offense, it would have been an affront to justice to require the respondent to make a case.”
Deputy Director of Public Prosecutions Neil Brathwaite asked the court to set a date for permission to appeal to the Privy Council.
The panel appeared annoyed and said the application was premature because the reasons for the dismissal had not been revealed.