Magistrate Pompey recuses himself from Exeter case

Magistrate Bertie Pompey has recused himself from hearing a case in which politician Benjamin Exeter and student Shabazaah George are charged with assault and resisting arrest; and obstruction and possession of an offensive weapon respectively.

The decision came yesterday at the Kingstown Magistrate’s Court, following an application by defence lawyer Kay Bacchus-Browne for Pompey to excuse himself from making a decision{{more}} in the matter because of real or apparent bias.

Bacchus-Browne, in her application, said the defendants are “deeply concerned” about what transpired in the case towards the end of the trial on June 6, which have “grave and serious implications in relation to the fairness of the trial.”

The attorney said during the trial, Pompey overruled a salient objection that she had made and permitted one of the prosecution witnesses ASP Hazelwood to give “inadmissible and irrelevant evidence” in relation to the offence of “breach of the peace.”

Bacchus-Browne argued that Pompey had erroneously stated that Exeter had been charged with breaching the peace and gave evidence to that effect from the bench.

“No one had given that evidence before. Also this shows you had arrived at a conclusion of fact before the police had closed their case and even before the defence opened its case. The defence is alarmed that you made this conclusive finding of fact before the end of the prosecution and before even hearing the defence.”

The experienced attorney also claimed that Pompey appeared to be assisting the Assistant Director of Public Prosecutions (DPP) Colin John in his “attempt to get inadmissible evidence on the record relating to this non-existent charge.”

In her application, Bacchus-Browne said the defence realizes that Pompey, the assistant DPP and the witnesses all served in the police force together for over 100 years collectively and “the fact that the only evidence against the defendants is police evidence.”

Pompey, a retired deputy commissioner of police, was appointed magistrate on April 29, 2016.

She said the charges against Exeter and George are classic police charges of assault, resisting arrest and obstruction of a police officer.

According to Bacchus-Browne, it appeared that “justice would not seem to be served with a police magistrate, a police prosecutor and only police witnesses.

“I also note with concern that none of the exchanges re my objections to the inadmissible evidence regarding the breach of the peace, or your comments in response appear on the copy of your notes which I requested, so that on any appeal, there will be no evidence to support a ground of appeal of bias,” the application said.

Bacchus-Browne, however, made it clear that she is not asking the magistrate to stand down in order to get a magistrate that would rule in her clients’ favour.

Instead, she held that the general public must feel that justice is served, adding that comments made by the magistrate caused doubt in his ability to try a matter in an objective manner.

The acting DPP, in his rebuttal, stated that Pompey did not overrule a salient objection.

“According to my recollection, the reason you gave for overruling the objection is that the evidence must come freely from Hazelwood,” he said.

John said that although the defence holds that there is no charge of breach of the peace, there is evidence that it occurred. He then referred to evidence that Exeter had breached the human barricade set up by police.

The assistant DPP stated that the test that the magistrate must face is if an observer would perceive bias, adding that the magistrate should make his decision based on that.

John argued that no relative of the magistrate is involved in the case, nor is there political bias, the usual factors where bias is presumed.

Bacchus-Browne, in rebuttal, said former chief magistrate Sonya Young had recused herself on “much less basis,” to which the assistant DPP held that in that case, Young’s brother was associated with the accused.

John submitted that Pompey should not recuse himself based on his former occupation, as any number of officers who had served with him could be called to court at any time.

However, Bacchus-Browne argued that she is not questioning Pompey’s integrity; her application is based on comments he made earlier during the case.

“We’re asking your honour to do the honourable thing in this case,” the lawyer said, noting that she knows that the magistrate wants to do what is right.

Pompey, in response, stated that counsel may have misinterpreted what he said, noting he did not agree with the prosecutor in saying there was a breach of the peace.

Bacchus-Browne interrupted, telling the magistrate that he had made a finding and cannot continue to hear the matter.

Pompey refuted statements that he is “police magistrate,” adding that all ties he had to the constabulary are severed and that he has been retired for five years.

The magistrate also commented that it was unfortunate that he heard news of the application for him to recuse himself through the local media.

He then stated that he would recuse himself.

Following Pompey’s decision, Bacchus-Browne said she was very satisfied with Pompey’s decision, stating that it very important that the public believe that justice was seen to be done.

Bacchus-Browne said that another magistrate would have to hear the matter and they would have to start over, but she is ready and waiting.

The assistant DPP, however, stated that he believed that Pompey could have delivered an unbiased decision, but he has to abide by his ruling.

“I just hope that which-ever magistrate, the same frivolous and well, stupid, in my opinion, allegation is not made, because St Vincent is a small place. Several magistrates, you can always find some reason to affiliate one magistrate to something. If it goes before the Chief Magistrate, the argument can be made that she is the sister of Luke Browne; if it goes before Zoila Ellis, the allegation can be made that she is Mike Browne’s … wife,” he added.

John said that he believes there is sufficient evidence to convict Exeter and George and he is looking forward to the completion of the matter. (AS)