By Marion V. Ali
The private prosecution case against Elvin Penner, the former minister of state in the Ministry of Immigration, has been dismissed.
Magistrate Aretha Ford on Thursday struck out the case against Penner because it lacked evidence for a trial, but Citizens Organized for Liberty through Action, the activist group that brought the private prosecution case against the former junior minister, said they intend to appeal the matter.
COLA’s attorney Kareem Musa made an application to the court under Section 30 of the Summary Jurisdiction Procedure Act to invoke the magistrate to exercise discretion and order the Commissioner of Police, Allen Whylie, to furnish the prosecution with whatever material he has in his possession so that the case could proceed.
Musa called on Geovanni Brackett, the president of COLA, to the witness stand and the evidence that Brackett gave had to do with the Supreme Court’s order that compelled Whylie to expedite and complete the police investigation into the irregularities at the immigration department while Penner was junior minister.
With objection from Senior Counsel Ellis Arnold, Penner’s attorney, Brackett identified and tendered as evidence the written order of the Supreme Court.
In his testimony Brackett said that he and his attorney had written to the commissioner to turn over the evidence he had on the matter, but without success.
The prosecution was attempting to substantiate its position that it needed the magistrate to adhere to the supreme court ruling because its attempts to get the evidence on its own were being ignored.
“He (the commissioner) has wilfully refused to turn over the material he has to the prosecution in this case,” Musa pointed out, as he attempted to substantiate his grounds for the magistrate’s intervention to summon Whylie.
“This is not an instance when the prosecution has not attempted to retrieve the case file,” he continued.
Arnold, however, objected to Musa’s submission, saying:
“It is a strange application to say the least, because today is set for trial, not for them to admit that they need help…the matter was taken to the supreme court.
“I cannot understand why now you are being asked to act as a superior to the supreme court and make an order.”
Arnold pointed out that the file is the property of the Police Department.
“For you to summon the police commissioner to produce the file would be unlawful,” Arnold concluded.
He also objected to the prosecution’s decision to ask Brackett to speak on the order from the Supreme Court. He said that the prosecution should have brought someone from the Supreme Court to identify the document.
Musa rebutted by saying that the document was a public one, something that anyone should be able to identify.
He also maintained that this was not the matter that was ventilated in the Supreme Court.
“No Elvin Penner has been taken before a supreme court yet. It is the commissioner of police that has been taken to the Supreme Court,” he said.
The court adjourned for several minutes for Magistrate Ford to rule on the submissions.
This was after there was confusion over whether the prosecution had completed with Brackett as a witness or whether Musa was merely making a submission to ask the court’s intervention so that the trial could begin.
The Magistrate by this time had already told Brackett he could step down form the witness stand. Musa specified that he had indeed begun with presenting his case but was also making the submission therein. The confusion occurred because while Brackett was on the witness stand, the defense did not get a chance to cross-examine him before he stepped down.
When Magistrate Ford returned, she allowed Arnold the chance to cross-examine Brackett but Arnold declined.
Magistrate Ford then went on to rule that the prosecution has not proven, as is required, that Commissioner Whylie was summoned and that he refused to come to court.
She said she would not grant the submission that the prosecution sought.
She also agreed with the defense that she would be out of her jurisdiction to summon the Commissioner to hand over the evidence.
She said that since it was the Supreme Court that compelled Whylie to complete the evidence, then prosecution needs to go back to the Supreme Court to resolve that matter.
Penner was charged with two summary offences: “Vouching the Fitness” and “Making a Statement knowing it to be False in a Material Particular.
These are with respect to the nationality certificate and passport issued to Won Hong Kim, while he was in a prison in Taiwan.
Musa has 21 days within which to appeal the court’s decision.