One of the lawyers representing embattled opposition candidate, Ben Exeter in his trial on resisting arrest and assault charges will ask the presiding magistrate, Bertie Pompey, to recuse himself.
The lawyer, Kay Bacchus-Browne, told iWitness News on Wednesday that her request would be “on the ground that the defence is very concerned that we could never get a fair trial, especially after what transpired at the end of the trial on Monday.
“At the end of the trial I made objection that the [assistant] DPP was attempting to get inadmissible evidence in on the record to the effect that there was a breach of the peace. I said it was irrelevant and he overruled me and, to me, was even assisting the DPP how to get in the evidence. And then the most alarming thing happened. I said there was no charge for breach of the peace and he said yes there was a charge for breach of the peace,” Bacchus-Browne said.
“And I was quite alarmed because there was no charge for breach of the peace. And what is more, the magistrate went on and said when Mr. Exeter pushed himself through the police line he was breaching the peace. Now that is giving evidence from the bench, evidence which was not given by the police.
“So, on those grounds, Mr. Exeter can never get a fair trial before that magistrate because it is clear to me that the magistrate, Mr. Pompey, the witness, who was [Assistant Superintendent of Police, Timothy] Hazelwood and the [assistant] DPP all worked together as policemen,” Bacchus-Browne said.
Pompey, a retired Deputy Commissioner of Police, was sworn in as a temporary magistrate some years after his retirement after more than 30 years as a police officer.
Bacchus-Browne further said: “What is more, the only witnesses against my client are police witnesses. Not one civilian they brought. Police witnesses, police magistrate, police prosecutor. Justice must be seen to be done. … after what happened on Monday, I must ask him to recuse himself. Otherwise, I would be shirking my responsibility,” she said.
Exeter, who was the New Democratic Party’s (NDP) candidate for Central Leeward in the December 2015 general elections, was arrested in Kingstown on Dec. 29, 2015, where crowds of NDP and Unity Labour Party supporters had gathered as the ceremonial opening of Parliament was being held.
He is charged that on Dec. 29, 2015 at Kingstown, he assaulted Corporal 632 Morris, acting in due execution of his duty. A second charge is that on the said date and time, he resisted the arrest of Corporal 632 Morris, acting in due execution of his duty.
Exeter is further charged that he assaulted constable Granville De Freitas of Chester Cottage, causing actual bodily harm.
Exeter, who was the holder of a licensed firearm, is also charged with an offence relating to taking a firearm to a public meeting.
Bacchus-Browne’s objection stems from developments in court on Thursday when Hazelwood, who was the office in charge of police operations when Exeter was arrested, was giving his testimony.
Assistant Director of Public Prosecution, Colin John, who called Hazelwood as a witness, asked the senior police officer what type of offence is “possession of firearm”.
Hazelwood said an indictable offence and John asked what are the police powers of arrest as regards someone suspected of committing an indictable offence.
Hazelwood said the police could arrest them.
The prosecutor then asked what are the police powers of arrest when a person is allegedly committing a breach of the peace.
Bacchus-Browne objected saying there is no charge of breach of the peace and she doesn’t know where that is coming from.
She told the court that it seems like John intended to drag out the case, saying that for the preceding half hour he had been leading evidence that is not relevant.
“There is no charge, your honour, about breaching the peace,” Bacchus-Browne said, to which the magistrate responded that Hazelwood was still giving his evidence-in-chief.
“Your honour, maybe I need to restate my objection. … I said the question is irrelevant to the issue we have here. There is no charge about breaching the peace,” Bacchus-Browne said.
She said if the prosecutor’s question was allowed, the defence could then ask about “every possible charge in cross examination”.
“There is no charge of breaching the peace and therefore that question is irrelevant, immaterial and does not advance the prosecutor’s case in any way.”
John told the court that the evidence from the senior police officer is that Exeter was arrested by the police at the protest because he inferred from those activities that a breach of the peace could have been committed.
“Hence, I do not find the question irrelevant…”
But Israel Bruce, the other defence counsel in the case, told the court that the evidence so far was that Exeter was arrested for the assault of Corporal Morris.
“He has not up to this point in time entered, injected, introduced into his evidence nothing about the breach of the peace,” he said, and accused the prosecutor of conducting “a backdoor operation … to try to bring to the fore that which is not.
“And we cannot allow back door operation. He must ask straight questions and elicit the answer that he wants,” Bruce said, adding that the prosecutor was struggling to get the answers that he wants.
The magistrate said that if counsel’s objection was that the prosecution was leading the witness by bringing in something that was not said, he could agree, but added that the witness is still giving his evidence-in-chief.
Bruce told the court he agrees but said the witness had not entered any evidence about a breach of the peace.
“And my friend is leading that evidence, and I am grounding my objection on that.”
Bacchus-Browne told the magistrate that she does not know where the case is going to end up and she is going further with her objection.
“I am saying that anything about breaching the peace is irrelevant. There is no charge that Ben Exeter was breaching the peace. There is no charge before this court about breaching the peace, and, therefore, the evidence would be irrelevant. What you want to convict him for, a charge that was not laid?”
The magistrate however disagreed with counsel about the charge.
“I do not agree with counsel that there is no charge here that Ben Exeter was not breaching the peace. The fact that he crossed the barrier, that, in itself is a breach of the peace,” the magistrate said.
“Where is the charge?” Bacchus-Browne responded, adding, “Maybe I don’t know. But sorry, Your Honour, please show me the charge about breaching the peace.”
The magistrate responded, saying “There is no charge on it but the fact that the police took action is to prevent a breach of the peace.”
Bacchus-Browne responded firmly: “I am very sorry to hear you say that as the adjudicating magistrate.”
She went on to state that nobody was preventing Exeter from doing anything.
“And so I am very, very disturbed that that is how Your Honour interprets the evidence so far. And now I am even more firm in objecting to that question; even more firm. It is irrelevant. There is no charge about breaching the peace in this court,” Bacchus-Browne told the bench.
But the magistrate said there does not have to be a charge.
“That’s what I am saying. He (Hazelwood) could have brought it in–”
But Bacchus-Browne maintained that the question was irrelevant evidence.
“I would not say it is irrelevant but leading,” the magistrate responded
The magistrate ruled in the prosecution’s favour and John then asked what are the police powers as regards when an offence is committed in their presence.
Bacchus-Browne again objected and the magistrate agreed, saying that it would depend on the type of offence.
But Bacchus-Browne said that it would depend on the type of offence that is related to Exeter’s case.
“We are heading down a road of irrelevant questions, Your Honour,” she said, and reiterated her point that questions must relate to the case.
“Those are basic rules of examination-in-chief, which my learned friend knows. He knows better than that.”
The prosecutor, however, said that if he asked if the police could arrest for assault the defence would object, saying that he is leading the witness.
John went on to ask what was “the physical condition” of Exeter when Hazelwood saw him outside the market.
Hazelwood responded: “Your Honour, Mr. Exeter–” then paused and asked if John meant the way Exeter was behaving or dressed.
John said that the defence was alleging that Exeter was beaten, adding, “I did not want to ask a direct question about him being beaten.”
Bruce, however, stood up and told the court that for the second time in the trial he was going to volunteer to help the prosecution.
He said John could ask, “What were your observations…?” and suggested that the witness could respond saying he did not notice anything peculiar or that Exeter had a bloodshot eye and swollen face.
John said that all that is part of Exeter’s physical condition.
But Bruce said that what is happening in Exeter’s stomach is also part of his physical condition.
“Can he (the witness) answer that? Point the question to where the evidence [is] you want to extract,” Bruce said.
John then asked, “What did you observe about the physical condition of Mr. Exeter?”
Hazelwood said that based on Exeter’s dress code he could have only seen his face.
“If I say what condition he was in at the time, I would be lying. It was something that happened fast.”
John’s next question was “Did you hit Mr. Exeter?” and Bruce objected, saying that is the epitome of leading.
The magistrate agreed.
“What, if anything, did you do to Mr. Exeter?” John asked.
Hazelwood said he only spoke to Exeter.
“What, if anything, did anybody do to Mr. Exeter in your presence?”
The senior police officer said he did not see anyone do anything to Exeter besides arresting him and taking him to the Central Police Station.
The trial continues June 20.