The case against ex Minister of State Elvin Penner was struck out on Thursday. The Cayo Northeast area representative was being tried for alleged wrongdoing in the passport scandal via a private prosecution since the state decided not to pursue the matter in the courts. Government Ministers had gone on record saying that COLA was wasting time as there was no way they could really have a case without evidence and Government, nor police, were freely offering up requested evidence to help COLA in their private prosecution. This morning, Attorney Kareem Musa , leading the private prosecution, applied to the court for a summons for Commissioner of Police Allen Whylie to testify in the case based on section 30 of the summary jurisdiction act which allows a magistrate to exercise discretion to summon an individual who is in possession of key material evidence. Mr Penner’s attorney, Senior Council Ellis Arnold, objected, saying that all relevant authorities have already indicated that a private prosecution has no legal right to police files, and called COLA’s attempt to prosecute Elvin Penner without sufficient evidence, “an abuse of the legal process”. The court adjourned for 10 minutes to allow Magistrate Aretha Ford to review the case. Upon her return, she informed the Prosecution that in order to exercise her discretion to summon an individual with key material evidence, in this case Compol Allen Whylie, the prosecution would have had to prove that Commissioner Whylie rejected the prosecutors’ request to testify in this trial. So, for lack of evidence, the case was thrown out today Thursday July 24 by Magistrate Aretha Ford. Outside of Court, attorney Kareem Musa, who lead the prosecution, expressed his disappointment with the Magistrate’s decision.
Kareem Musa – Attorney for COLA
“Mr. Brackett was able to take the stand to testify against Mr. Penner, and basically what we did is that we laid the foundation, putting it in a historical context of what has transpired so far, starting firstly with the order of the Supreme Court in relation to the Commissioner of Police, ordering him by way of writ of mandamus to do his job, to carry out his duties and investigate this matter. So we started with that premise, and we then built up on the foundation thereafter, showing the correspondence that we have made several attempts, not just one, but several attempts to the Commissioner of Police to try to obtain the investigative file, but of course it has ended up in futility as our head, our titular head of the judiciary. The Attorney General should be ashamed of himself, he is the titular head of this country when it comes to the judiciary. It is a disgrace to have a system where the system is not looking out for the interest of this nation. It is not. What happened after Mr. Brackett laid the foundation, we then made an application pursuant to section 30, and I don’t think that there is any clearer law that exists that shows that in fact the Commissioner of Police ought to have been summoned to come to court today. I know that the learned magistrate has given a ruling. I must say right off the bat that I wholeheartedly disagree with her ruling. I believe the magistrate said that we needed to summon the Commissioner. That is an entirely different section of the law. The particular application that we made was under section 30 which states that, “On the statement of the complainant it comes to light that there are individuals in possession of files, of documents,” she, the magistrate, then has to exercise her discretion whether or not she would want that individual to come to court. So it’s an entirely different section of the law and frankly speaking, I have advise my client right after the case that I think it’s a good case for an appeal.”
It seems like a dead end for the prosecution, however the laws of Belize allow for the case to be appealed within 21 days of the ruling, and COLA says they will explore that avenue of the law.
“That would be the next step. I believe that the appeal is in order, based on the ruling that I heard today in court. An appeal is in order, and certainly know that the appeal will be in the Supreme Court. I think it’s a perfect opportunity for us to explore our options, under that very writ of mandamus, to force the Commissioner now to conclude his investigation. He cannot go and give these excuses anymore that it is ongoing and ongoing. It’s nonsense and people are tired of hearing that.”
“There’s been the question of the passport. I know when we met with the DPP, the DPP instructed the police to get that passport, because even authorities have said that in the media that when it comes in, they will hand it over to the police to be handed over to the DPP. But I have been reliably informed that entities met in Miami and that passport has been exchanged. Whether it has reached Belize I do not know. But if that is so, I think the authorities need to come forward and to tell us the Belizean public if that passport is here, and if it’s not why. Why has it taken so long?”
As for Elvin Penner, he appeared calm and confident and though he walks away a free man, he still maintained no comment for the media this morning. The prosecution has 21 days, which expires on August 14, to appeal the ruling of Magistrate Aretha Ford.