The Hon. Elvin Penner, the former Minister of State with responsibility for Immigration who is accused of violating the public trust that accompanied his Cabinet portfolio, walked out of the courtroom of Belmopan Magistrate Aretha Ford in silence, ignoring reporters’ questions, after the Citizens Organized for Liberty through Action’s (COLA) private prosecution was struck out for want of prosecution.
At 9:19 a.m., the court was called to order and Penner took his seat in the dock, as attorney Kareem Musa, COLA’s attorney and prosecutor in the case, began addressing the court.
Musa told the court that COLA has made partial and then full disclosure to the accused Penner, who was charged with two offences, under the Summary Jurisdiction Procedures Act, for his role in securing a Belize passport and Belize nationality certificate for an imprisoned South Korean, Won Hong Kim.
“We have made attempts to retrieve the case file from Commissioner of Police Allen Whylie,” Musa said, and noted, “fortunately for the private prosecutor, this matter has been played out in the media.”
Musa stressed the importance that “the witnesses named in these statements be summoned under the Summary Jurisdiction Procedures Act.”
These witnesses, he told the court, are in possession of key pieces of evidence that could move this case forward.
Following those opening remarks, Musa was ready to call his first witness, COLA president Giovanni Brackett.
Brackett told the court that he and Nedal McLaren filed the two summary charges on February 28, 2014, against Penner. The charges are for “vouching the fitness of applicant (Won Hong Kim) to receive a Belize passport” and for “making a statement that he knows to be false in a material particular in a nationality certificate, contrary to Section 22 Chapter 161 of the Belize Nationality Act.”
Brackett testified that “on March 3, 2014, the Supreme Court ordered the Commissioner of Police …”
At this point, Penner’s attorney, Ellis Arnold, S.C., told the court that he was “objecting to this kind of testimony”, because, he said, “I don’t see what the order against the Commissioner of Police has to do with this case.”
Brackett continued his testimony, telling the court that the Supreme Court ordered the Commissioner of Police to carry out and conclude a criminal investigation into the issuance of a Belize passport and a Belize nationality certificate to the South Korean, Won Hong Kim.
Arnold maintained that he did not see the relevance of Brackett’s testimony.
Musa asked Brackett whether, if he saw the court order, he would be able to recognize it.
Arnold again rose to object, telling the court that he did not see the relevance of the question.
Musa, however, countered, saying that it was necessary for the prosecution.
Arnold objected to Brackett tendering into evidence the Supreme Court order of mandamus directed to the Commissioner of Police.
Musa told the court that the order is a public document and any citizen, such as Mr. Brackett, can obtain a copy of it from the Registry of the Supreme Court.
Magistrate Ford broke the impasse between the prosecutor and the defense over the tendering into evidence of the mandamus order of the Chief Justice, when she declared that the witness, Brackett, was “not the proper person to tender such a document into evidence.”
Brackett’s testimony continued, as he outlined that he had written Commissioner Whylie on April 9 to request the case file relating to the police investigation into the Won Hong Kim matter.
Arnold did not object to COLA’s letter to Whylie being tendered into evidence against his client; neither did he object to Whylie’s response to COLA’s letter
Brackett also testified that the Director of Public Prosecutions responded to COLA’s letter, telling the organization that she sees “no basis for the refusal of our request for disclosure.”
Magistrate Ford also accepted the DPP response to COLA into the evidence.
Musa then submitted that Section 30 of the Summary Jurisdiction Procedures Act ought to be invoked to summon this person (Whylie).
“This is not an instance when the prosecutor has not attempted to secure the case file,” Musa told the court.
Musa asked the Magistrate to use her discretion to summon Whylie under the Summary Jurisdiction Procedures Act.
Brackett then left the witness stand. He was not cross-examined by Arnold, who rose and told the court that “they filed the complaint without a scintilla of evidence. Now they want to get this court to help them get the evidence.”
“Now it is totally beyond me to comprehend what is going on,” Arnold declared.
Arnold submitted that in a private prosecution they have absolutely no legal right to the police’s file.
Musa, however, told the court, “I respectfully submit that while today is set for trial, Section 30 clearly contemplates a situation like this.”
The hearing was then adjourned for about 20 minutes, and when it resumed around 10:30 a.m., Arnold indicated that he did not wish to cross-examine Brackett.
Magistrate Ford began delivering her ruling on Musa’s application to invoke the section of the law that would allow the court to summon Whylie.
Ford said, “It has to be proved to the court that Whylie was summoned and that he refused to come to court. I will not exercise my discretion.”
Ford ruled that “the case is struck out for want of prosecution.”
Following the hearing, Brackett told reporters that, “Despite the roadblocks that we have encountered coming to trial, we are still thankful for reaching this far.”
Brackett said that what COLA will do is consult with their attorney and he believes that they have 21 days to appeal.
“It is a sense of disappointment that it has been struck out on the first trial date, but that does not mean that in the court of public opinion, Penner is not guilty,” Brackett said.
For his part, Attorney General Wilfred Elrington two days ago again described COLA’s private prosecution as one of futility. In earlier remarks he had said that it was “a waste of time.”
“I must say outright that I disagree with the learned Magistrate. I have advised my client right after the hearing that it is a good case for an appeal,” Musa said.
Musa said that the Commissioner of Police is taking advantage of the fact that the Supreme Court did not give him a deadline to conclude his investigation.
“I think an appeal is in order, based upon the ruling that I heard today. And now that the appeal will be in the Supreme Court, I think it is a perfect opportunity to explore our options to bring a mandamus against the Commissioner of Police, to force the Commissioner to conclude his investigation,” Musa explained.