BELIZE CITY, Fri. Mar. 13, 2015–About two and a half hours after Elvin Penner arrived at the Supreme Court this morning along with an entourage of personal bodyguards and began to wait inside the court room of Chief Justice Kenneth Benjamin, the appeal decision in the private prosecution case began with the Chief Justice apologizing for his tardiness, and reminding the court that he was “still on vacation.”
The private prosecution of disgraced Cayo North East area representative, Hon. Elvin Penner began when Citizens Organized for Liberty through Action (COLA) filed two criminal complaints in the Belmopan Magistrate’s Court on February 26, 2014.
Giovanni Brackett, COLA president, and Nedal McLaren had filed criminal complaints against Penner against a backdrop of official inaction and Penner was arraigned before Belmopan Magistrate Aretha Ford on passport and immigration charges on March 27, 2014.
The criminal complaint was filed hours after Opposition Leader Francis Fonseca had obtained a writ of mandamus from the Chief Justice, ordering Commissioner of Police Allen Whylie to conclude the police’s investigation of the Penner passport scandal.
At the time the writ of mandamus was issued, there was only a short time remaining before the two summary offences with which Penner could have been charged would have become statute-barred, hence the COLA private prosecution to beat the statute bar clock.
In the Belmopan Magistrate’s Court, the private prosecution case continued, but after the second adjournment, COLA, on the date set for trial, July 24, 2014, could not furnish the requisite standard of evidence to prove its criminal complaint against Penner and Magistrate Ford struck out the case for want of prosecution.
In spite of the mountain of evidence in the public domain, beginning with the announcement on September 19, 2013, that Penner had been fired from his post as Minister of State in the Ministry of Immigration with “immediate effect,” COLA could not obtain the hard evidence it needed to make the charges stick.
On the day Penner was “forced to resign” from PM Barrow’s Cabinet, government also announced, “In a related development, the Office of the Prime Minister also announces that the Immigration Ministry, together with the Ministry of the Public Service, has launched an investigation into the circumstances surrounding the issuance of a Belize passport to a South Korean national.”
Penner had reportedly spearheaded the issuance of a Belize passport and nationality document to an imprisoned South Korean, Won Hong Kim, who had never been in Belize.
In a little under half an hour after Chief Justice Benjamin entered his courtroom; he read his judgment of the COLA appeal against the decision of Belmopan Magistrate Aretha Ford to dismiss the charges against Penner for want of prosecution.
In denying the appeal against Magistrate Ford’s decision to acquit Penner, the Chief Justice affirmed the magistrate’s acquittal of Penner.
COLA had appealed Magistrate Ford’s decision to strike out the case against Penner on the grounds that the learned magistrate had erred in law when she refused to summon the Commissioner of Police to give evidence. COLA had also appealed on the grounds that the learned magistrate’s decision was unreasonable.
After the judgment was read, reporters scrambled out of the courtroom to see if they could get comments from Penner, who was surrounded by his own security detail, complemented by the stepped-up police presence, both groups acting as a buffer between Penner and pursuing reporters, as he quickly made his way to his vehicle in the NICH parking lot, behind the court, escorted by a police security detail of 14 officers.
And just as it had started in Belmopan, it ended at the Supreme Court, with Penner driving away in contemptuous silence to reporters’ questions, freed of the two criminal charges that COLA had filed against him.
Attorney Kareem Musa, COLA’s private prosecutor, told reporters, “Fundamentally, the appeal has been dismissed, but he certainly agreed with us in many instances that the magistrate had erred. In many respects in her decision, she had erred in law, but it was not so much so as to amount to an overturn of her decision.”
“So, he [the judge] has found that there was no evidence before the magistrate for her to have given a decision and that’s why he ruled today that he would not overturn that decision. But in many respects, she did in fact err. Our biggest concern has always been the involvement of all these functionaries of the government. We are talking about the Ombudsman, who has declined to assist in any way under the Freedom of Information Act. We are talking about the Auditor General – if you recall, COLA actually had to get a leak of the Auditor’s General’s report,” Musa went on to comment.
In responding to the question raised by the Chief Justice. that no one knows what’s in the police’s investigation file, Musa said, “Like I said on the last occasion, we know what is out there in the public domain and if that could be formalized into concrete evidence, if the Commissioner were to do his job, the very same Chief Justice was the one who saw that evidence and said, you know what, this thing warrants an investigation.”
Brackett added, “We fought a good fight. COLA, in no way, feels let down. We are not demoralized.”
Brackett, when asked if COLA will appeal the Chief Justice’s decision to the Court of Appeal, said they would “have to seriously discuss it amongst” themselves.
Last month, more than one year after the Chief Justice had ordered the Commissioner of Police Allen Whylie to conclude the Penner investigation, the case finally ended.
Whylie, however, was not certain whether the file had been passed to the Director of Public Prosecution, but suggested that it would eventually find itself at that office in keeping with established protocol.
That, however, might not be completely accurate. In recent times, the police’s high command had issued a directive for its officers to stop consulting the DPP on questions of the laying of charges in criminal cases.
DPP Vidal had indicated in the early stages of the Penner passport scandal that there is an offense that Penner could be charged with under the Indictable Procedures Act, and that that offense is not statute-barred.