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But, COLA lays blame at the feet of the Commissioner of Police for the failure of the private prosecution. How do they get to that conclusion? That's just what Daniel Ortiz tried to find out:

Daniel Ortiz reporting
In the days leading up to today's hearing, Attorney General Wilfred Elrington gave an interview to the press in which he spoke candidly about what he saw as the impending failure of today's case. Those remarks incensed those within the COLA ranks.

Hon. Wilfred Elrington - Attorney General
"You can't say alright I am going to do it and then turn around and say to the DPP to help me please, turn to the police and say help me please. You say you could do it - do it. I can say to the public, the people of Belize that really and truly it's an exercise in futility - you are not going to get anywhere with that. You are wasting the people's time and really seeking to mislead people to my mind."

Reporter
"So the Prime Minister just wanted COLA to waste its time?"

Hon. Wilfred Elrington - Attorney General
"No, I don't think the Prime Minister encourage them to do it at all. As a matter of fact the Prime Minister has been saying to them that it's the responsibility of the DPP. But the DPP is saying she doesn't have the evidence. What do you want her to do? COLA obviously did not believe that and lead people to believe that they can get the evidence and they can do... for those of us who has been in law for as long as I have known that from the beginning that is not going to get anywhere."

Geovannie Brackett, President - COLA
"The Attorney General in my view seems delusional. When you will brag that this exercise is a matter one of futility. In certain scenarios you can use that term, but when you have the Commissioner of Police who had to be dragged to court to carry out and conclude an investigation and yet have it concluded that investigation when the DPP has written to the police to say basically give up what you have so far to COLA or at least to her and they refused to do so. When you have other entities, when you have other ministers in government coming out in the media to announce the innocence of Elvin Penner and you try to brag and say that this is just a matter of futility. What he should have done is look himself in the mirror and use the same artificial statement because what we have is an artificial government. What we have is an artificial system."

Harsh words vs advice from the voice of experience, but COLA isn't interpreting that way. As far as they know they went looking for help from the upholders of the law, but all they got were "no's."

Hon. Wilfred Elrington - Attorney General
"Is it not that there is a big conspiracy not to take this matter to court. To my mind the Prime Minister has done all that he could do."

FILE: July 16, 2014
Daniel Ortiz
"At this current moment sir, the issue with the attorney, they are suggesting that your continual refusal to release this file is some way to proof positive that the state is trying to bury the evidence against Mr. Penner. How do you respond to that?"

Allen Whylie - Commissioner of Police
"Man, I think that is utter nonsense, and I think for the media to swallow or try to be regurgitating that is nonsense. I think the media should be given credit, the law is the law. I am here to uphold the law."

But COLA says that the Commissioner used a loophole in the Mandamus Order, which allowed him to stall until the case fell apart.?

FILE: July 16, 2014
Allen Whylie - Commissioner of Police
"I think that the letter quite clearly said that as long as there is an ongoing investigation the matter cannot be released because it would be prejudicial, and so until that investigation is concluded and the file sent back to the DPP, then we go from there, but I cannot break the law to please COLA."

Daniel Ortiz
"Can you tell us the law you would be breaking if that is indeed?"

Allen Whylie - Commissioner of Police
"I have already indicated that the regulation or the act is under the disclosure act, so if there is a continuing investigation or ongoing investigation would be prejudicial to release, so we are complying with the law, the attorney has not challenged that, that is the law."

Kareem Musa, Attorney for COLA
"The Supreme Court ordered the Commissioner of Police to carry out and conclude his investigation. I think that the Commissioner has been taking advantage of the fact that the Supreme Court didn't tell him conclude your investigation by July 24, he is taking advantage of that and I don't think he is out there investigating anything. You've heard him take statements from anyone recently - absolutely not, so I think that he is taking advantage of that fact. But certainly he does not have eternity. Eternity is not what has to go and carry out this investigation. At some point he has to deliver up that case file."

So, to recap today's hearing, Elvin Penner was charged under Section 22 of the Nationality Act, and Section 31H of the Passport Act, for the fraudulent passport and nationality certificate for South Korean Won Hong Kim.

Today was supposed to be the first day where the presiding Magistrate, Aretha Ford, would accept evidence from the prosecution against Elvin Penner. Instead, Private Prosecutor Kareem Musa made a Preliminary Application under the law to Summon Police Commissioner Allen Whylie. Musa was asking the court to order him to hand over the police investigation file into the passport scandal.

When Magistrate Ford asked him to justify why she should make such an order, he called Geovannie Brackett to the stand. Brackett, as we've told you, was one of the two men who charged Penner for the immigration offences. Brackett testified that the Supreme Court ordered Commissioner Whylie to carry out and complete an investigation against Elvin Penner. When Musa tried have Brackett tender that Mandamus Court Order into evidence, Penner's attorney, Ellis Arnold, objected on the grounds that only a Supreme Court Marshall or the Registrar of the Court can properly submit that document into evidence in the trial.

Brackett then continued his testimony that his attorney wrote to Commissioner Whylie requesting the file, but that the Commissioner denied the request. He was allowed to tender the COLA letter to Whylie and Whylie's response into evidence. He then testified that they made contact with Director of Public Prosecutions Cheryl-Lynn Vidal who responded by way of a letter saying that she doesn't see any basis to deny his request for disclosure. He was once again allowed to tender that letter from DPP Vidal into evidence in the case.

Musa and Brackett were seeking to lay out clearly that Whylie had no real purpose for refusing to disclose the file, and so Musa renewed his application that the court should order Commissioner Whylie to hand over the document.

At that point, Penner's attorney Ellis Arnold objected to Musa's application. He told the court that this application was proof that COLA and its attorney had abused the court's process against his client. He asked the court not to tolerate Musa's application because, according to Arnold, the prosecutor was now asking the court's help to get evidence against his client, which they claimed to have in their possession, and which they should have had before today's date. He also objected on the grounds that he has legal precedents which state clearly that in a private prosecution, the civilian entity is not entitled to the police file by rights under the law.

After taking a 15 minute adjournment, Magistrate Ford returned and denied Musa's application after she agreed with Arnold's submission that COLA was not legally entitled to the police file. She also explained that for her jurisdiction to be invoked in such a summons, the prosecution needed to have proven that Whylie was summoned to court, and that he refused to obey that first summons.

Because COLA and their attorney had no further evidence to place before the court, Magistrate Ford struck the case out for want of prosecution.