General — 10 October 2014 — by Rowland A. Parks
COLA’s files grounds of Penner appeal

BELIZE CITY–On Thursday, July 24, the Hon. Elvin Penner, area representative for Cayo North East, walked out of the Belmopan Magistrate’s Court, having been freed of the two criminal charges that Citizens Organized for Liberty through Action (COLA) had filed against him. Penner hugged his wife and walked to his vehicle and disappeared from the public’s radar.

It has been almost 70 days since Penner last snubbed reporters by maintaining the stony silence he has had in the face of public probing into his involvement in the granting of a Belizean passport to the imprisoned South Korean convict Won Hong Kim, in violation of policies and procedures which should govern the granting of citizenship.

And even now, a year after the scandal broke, there has not been a word from government sources about Kim’s passport that was supposed to have been returned to the country. According to the Commissioner of Police, the police are still investigating the scandal.

Notwithstanding the official roadblocks to holding Penner criminally responsible, COLA and its private prosecutor are not yet ready to throw in the towel.

Today, attorney Kareem Musa, who has undertaken to prosecute Penner pro bono, confirmed to Amandala that the “grounds of appeal” were filed at the Court of Appeal Registrar on September 4.

Musa said that they are now awaiting a date to be set by the court for hearing the appeal.

There are seven grounds on which Inferior Appeal No. 81 of 2014 is based.

The first ground of appeal states: “The learned Magistrate erred when she denied the Application of the Complainants to summon the Commissioner of Police to give material evidence and to deliver the investigative file that was in and still remains in his possession.”

The basis of the second ground of appeal is that, “The learned Magistrate unfairly exercised her discretion in refusing the Application by the Complainants to summon the Commissioner of Police to give material evidence. …”

The third ground of appeal asserts that, “The learned Magistrate’s decision to refuse to summon the Commissioner of Police to produce the investigative file that is in his possession was unreasonable, particularly having consideration for the fact that the 1st Complainant had established and laid sufficient evidence before the Honorable Court that: (1) the Supreme Court of Belize had ordered the Commissioner of Police to carry out and conclude an investigation into the matter; (ii) the Commissioner of Police was, at the material time, and still is in possession of the investigative file; and (iii) the Commissioner of Police, through correspondence tendered in evidence, was willfully refusing to produce the investigative file to the Complainants, the private prosecutor in the matter.”

According to the fourth ground of appeal, “The learned Magistrate erred in her ruling at paragraph 7 and 8 of the Notes of Evidence by placing the burden of summoning a witness under Section 30 of the Summary Jurisdiction (Procedure) Act, Chapter 99 of the Laws of Belize (Revised Edition 2003) on the Complainants, when in law the said section refers to the exercise of a Magistrate’s discretion to summon a witness who is in possession of material evidence.”

The private prosecutor states in the fifth ground of appeal that “The learned Magistrate erred in her ruling at paragraph 9 of the Notes of Evidence in refusing to summon the Commissioner of Police pursuant to Section 30 of the Summary Jurisdiction (Procedure) Act…on the basis that the private prosecutor does not have a right of access to statements in the possession of the Crown. The Appellant submits that: (i) the Application was not for the Crown to be called to testify and produce the statements, but rather for the Commissioner of Police who was ordered by the Supreme Court of Belize to carry out and conclude an investigation into the matter; and (ii) while a private prosecutor does not have a “right” of access as the Crown, the general rule is that the Crown should give disclosure whenever it is in the interest of justice to do so….”

The sixth ground of appeal is that, “The learned Magistrate erred in her ruling at paragraph 10 of the Notes of Evidence in determining that the Application by the Complainants to summon the Commissioner of Police ‘was akin to asking the Magistrate’s Court to review the Writ of Mandamus Order that was issued by the Supreme Court. The Application by the Applicant was merely to summon the Commissioner of Police to produce the investigative file in his possession and not an Application to review the Writ of Mandamus.’”

The seventh and final ground of appeal states, “the learned Magistrate erred at paragraph 10 of the Notes of Evidence in determining that she did not have jurisdiction to summon the Commissioner of Police…”

The private prosecution was filed by Geovannie Brackett and Nedal McLaren.

In his appearance before the Belmopan Magistrate, Penner was represented by attorney Ellis Arnold, S.C.

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