A third magistrate is being asked to recuse himself from the case in which manager and owner of NICE Radio, Douglas De Freitas is being tried on 12 counts of making comments which are “likely to cause fear, alarm, or disturb the public peace” on Dec. 10, 2015.
When the charges came up for hearing before Senior Magistrate Rickie Burnett at the Kingstown Magistrate’s Court last Tuesday, both sides ventilated their submissions on application by the defence for disclosure and for the magistrate to recuse himself.
Defence Counsel, Bacchus-Baptiste based her application on June 2016 statements that the then Assistant Director of Public Prosecution, Colin John, who is now the acting Commissioner of Police, made during an interview with iWitness News.
John’s comment came after Magistrate Bertie Pompey recused himself, mid-trial, from the case in which opposition politician Ben Exeter was being tried on charges of resisting arrest, assaulting a police officer and carrying a (licensed) gun to a public meeting.
Pompey cannot hear the matter against De Freitas because he has a lawsuit against the broadcaster before the court and Magistrate Zoila Ellis-Browne has recused herself from hearing the matter as her husband, Mike Browne, is a former minister in the ruling Unity Labour Party administration.
During the interview, which came after Pompey, who was then Kingstown magistrate, recused himself, John accused the defence of forum shopping and suggested that they would be happy if Burnett presides over the trial.
During Tuesday’s proceedings, prosecutor Karim Nelson told the court that his side filed its response on April 16, 2018.
“Your Honour, we stand by those submissions and we vigorously resist those applications.”
He said the defence has since alleged that the cases that the prosecution used to support its submission are not on all fours with the extant case.
“We are not suggesting that that is so but we are merely relying on the legal principles. Because it is the legal principles that the court would be called upon to apply and to come to a conclusion with relation to this matter,” Nelson told the court.
In his submission he set out the test for apparent bias, which is enunciated in the case of Porter and Magill.
Nelson told the court that the test is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility of bias.
The defence has referred repeatedly to what the general public may say or think, Nelson told the court.
“Your Honour, that is not the test. The test is not what the general public may think. This test deals with a certain category of person in the society: the fair minded and informed observer.”
He said the question for the court is who is the fair minded and informed observer and went on to read from Lord Hope in the case of Helow:
“The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious…. Her approach must not be confused with that of the person who has brought the complaint…
“… before she takes a balanced approach to any information she is given, she will take the trouble … to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”
Nelson said that this definition “naturally excludes persons who are political bandwagonists, persons who only see issues through political lenses”.
He said that he agrees that persons who are swayed by their political affiliation and only see things through their political lenses may conclude that there is a real possibility of bias in the case.
“But not the fair-minded and informed observer,” the prosecutor argued.
He said that the fair minded and informed observer “would look at your honour’s history, look at how his cases are held up on appeal.
“They would look at the fact that the judiciary is independent and they would not be swayed by a comment allegedly made by a senior public servant.
“So, is my friend suggesting that because a senior public servant makes a statement to the effect that the defence is forum shopping that the fair-minded and an informed observer would conclude that your honour is biased?
“We submit that that cannot be the case, your honour. A political bandwagonist may, but not the fair and informed observer.”
In response, Bacchus-Baptiste said that the prosecutor had conveniently stopped short in his quotation of Lord Hope.
Bacchus-Baptiste noted that the jurist, in defining a fair-minded observer, had said also “she is not complacent, either.
“‘She knows that fairness requires that the judge must be and must be seen to be — that is where the public comes in — must be seen to be unbiased… She knows that judges, like anybody else, have their weaknesses and she would shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.’”
“That is the part that my learned friend left out,” Bacchus-Baptiste said.
“So, to say that you are going to divorce from the public, that is where the purity of justice comes in. They have put the administration of justice into disrepute by their comments. Now, they want to resign from it.”
The defence counsel said Nelson wasn’t even “forthcoming enough” to say who made the comments but said that a public servant allegedly made them.
“He cannot say that they were retracted…”
Nelson, however, said that Bacchus Baptiste was being unfair.
“I have to say alleged. I wasn’t there. I saw a news report. I was not the reporter.”
Bacchus-Baptiste chimed in, “Ask him.”
Nelson continued, saying that in addition to this, he didn’t want to go too much into the case but he had to because of what the defence has said.
“You honour, our case, the substance of what was alleged, basically, is that when the boxes went into the custody of the police on the night of 9th, that there was some sort of tampering…
“So that our case is between that narrow window of when the boxes came to be in the custody of the police and when they were released for the recount. Our case would, naturally — well we have to naturally appreciate that during the course of an election there would be points when ballot boxes would have to be unsealed because they must be opened to be recounted.”
But Bacchus-Baptiste said: “To this day, they are unsealed, according to law. That’s what you are missing. To this day, they remain unsealed. They have never been sealed according to law. Never! Show them let the public see.”