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Gibson wins costs

Former minister suffered ‘substantial’ losses after ‘malicious’ prosecution

Former Cabinet minister D. Shane Gibson said he suffered a substantial blow to his reputation and his finances after he was brought on corruption charges in 2017 as a result of the “malicious political shenanigans” of the Minnis administration.

In an affidavit in support of his application for costs after he was found not guilty on 15 counts of bribery in the Supreme Court two years ago, Gibson maintained that he is in fact innocent of the charges, and pointed out that the “evidence” relied on by the Crown during the course of the matter was insufficient to support a reasonable expectation of a conviction by a fair and impartial jury.

Yesterday, Gibson scored another legal victory when Acting Chief Justice Bernard Turner awarded him costs.

The former minister had sought costs under Section 20 of the Prevention of Bribery Act which permits a person acquitted after trial before the Supreme Court to make such an application. The act says a court “may award costs to that person” and the costs are to be taxed and paid out of the Consolidated Fund. 

In his application filed late last year, Gibson said, “I am unemployed and do not have a regular source of income, except for my pension. 

“Due to the notoriety surrounding my trial and the nature of the charges against me and the widespread media coverage highlighting the developments in the saga from investigation to the conclusion of trial, I am limited in my options to find substantial employment.

“My acquittal herein has not mitigated the adverse economic impact and the loss of opportunities that I now face.”

Gibson added, “The public interest in my trial was widespread and the Crown employed the weighty levers of state to ensure that resources were not spared to facilitate my prosecution.”

The former minister’s arrest and charge on August 2, 2017, came months after the Progressive Liberal Party (PLP) was swept out of office amid claims of corruption in May 2017.

Gibson was alleged to have received more than $250,000 from contractor Jonathan Ash in exchange for him using his authority as the responsible minister to facilitate the release of around $1 million in payments the government owed Ash for cleanup work after Hurricane Matthew in October 2016.

The former minister was tried in the Supreme Court and was acquitted on November 27, 2019.

In his affidavit supporting his application for costs, Gibson said, “I have substantial legal bills that relate directly to my defense in the subject proceedings. These fees were incurred and warranted because I had to employ a team of senior counsel to match the Crown prosecutor who was brought in on special call from the United Kingdom to lead the Crown team of prosecutors.

“The trial and other interlocutory hearings in this matter were lengthy and led to the accrual of substantial legal fees for preparatory and trial work on my behalf.”

Gibson said he would have to deplete his remaining investments, including his retirement funds, and rely on the possible assistance of others to meet his obligations, were he made to pay costs.

He concluded that he should not be penalized or face the severe financial impact that will flow as a consequence of the Crown’s failed prosecution.

Gibson was represented by Damian Gomez, QC, and attorney Owen Wells of McKinney, Turner & Co.

Anthony McKinney, QC, the firm’s senior partner, noted yesterday that costs need to be assessed, but pointed out it will likely not be pocket change that must be paid out given the amount of work involved in the case.

The assessed costs will come after both sides present the relevant claims in relation to the case, including legal hours spent on the matter and how many lawyers were involved.

“I’m not going to speculate on the amount, but I’m saying it wasn’t a common or garden case, so it’s something that will require a lot of effort and energy in formulating what costs should be,” McKinney told The Nassau Guardian.

Consequences

Asked what message he thinks this kind of ruling on costs sends to the Crown, McKinney responded, “In every case where a person’s liberty and reputation and general standing in the community is impacted, the Crown has to be very careful when it decides to prosecute anyone; but when a case of this nature is going to be pursued, the Crown ought to be extremely careful because they know there are consequences, not just in terms of money, but you do a lot of damage to people, especially when you don’t have sufficient evidence to support whatever allegation you are making.”

Winning the case is one thing, McKinney added, but repairing the damage done is almost impossible to do.

McKinney also filed an affidavit in the matter involving costs.

He said the circumstances of the investigation and trial of Gibson “were fraught, at minimum, with a questionable rationale by the Crown in its continuing efforts to pursue a conviction”.

“The FNM, through its political aspirants, led by Dr. Hubert Minnis, had continually pushed in its public utterances the party’s political mantra that PLPs were guilty of substantial corruption and misfeasance in office and pledged to prosecute those PLP members upon the FNM’s election to office,” McKinney stated in the affidavit.

“The applicant (Gibson) has been an erstwhile target of his political antagonists. From 2002 to present, he has been on the receiving end of direct accusations, innuendoes and hints in the public domain that he was dishonest in the execution of his public office.

“A pattern was established when he was investigated, called in for questioning repeatedly and harassed during 2007 and thereafter following the FNM assuming the government in 2007.”

McKinney noted that the now former Minister of National Security Marvin Dames had pledged there would be no political interference in such investigations by the FNM government.

“[Gibson] is convinced that his prosecution was initiated solely in fulfillment of the FNM’s political mantra to go after and prosecute certain members of the PLP, notwithstanding that such prosecutions would not be warranted under ordinary circumstances and could not survive unbiased scrutiny,” he added.

McKinney said in his affidavit that Gibson behaved “in an exemplary manner throughout his trial and did not obstruct or otherwise impair the proceedings”.

In contrast, he said, evidence of police and prosecutorial misconduct marred or otherwise complicated the trial process and necessitated the employment of numerous counsel to ensure that Gibson’s interests were adequately protected.

In a separate matter, Gibson last year sued the government alleging malicious prosecution and false imprisonment.

Gibson’s attorneys filed the suit against the attorney general, the commissioner of police, the director of public prosecutions (DPP), Assistant Superintendent of Police Debra Thompson and Ash, the contractor.

Gibson is seeking damages for false imprisonment; damages for malicious prosecution “arising out of multiple charges of extortion, bribery, misconduct in public office laid maliciously and without reasonable or probable cause”; aggravated damages; exemplary damages; interest pursuant to section 3 of the Civil Procedure (Award of Interest) Act, 1992; costs and further relief.

That matter remains outstanding.

Two other former PLP parliamentarians were also brought on corruption charges after the FNM was elected in 2017.

Former Public Hospitals Authority Chairman Frank Smith was acquitted in February 2019.

The case of former Environment Minister Kenred Dorsett has not yet been heard, more than four years after he was charged.

Speaking in the Senate earlier this month, Attorney General Ryan Pinder said the Minnis administration spent $807,755.87 with foreign lawyers on the prosecution of Gibson, and $290,903.44 on the prosecution of Smith.

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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