7 News Belize

Penner Gets Stoned With Egg
posted (February 27, 2015)
Disgraced politician Elvin Penner appeared today in the Supreme Court before Chief Justice Kenneth Benjamin. The "CJ" had ordered him to appear for the criminal appeal against him. That's the one where activists turned private prosecutors Geovannie Brackett and Nedal McLaren are trying to overturn his acquittal by Belmopan Magistrate Aretha Ford.

The case turned on the decision from Magistrate Ford to refuse an application from the prosecutors' attorney, Kareem Musa, to summon Police Commissioner Allen Whylie. The prosecution wanted the court to order him to disclose the police investigation file into the passport scandal.

Today before the Chief Justice, Kareem Musa, the attorney for COLA and Penner's attorney, Tricia Pitts Anderson, made their case for and against the Magistrate's decision .

But all that "legalese" took in the background for today's hearing, because in the foreground, there was Penner marching up the court stairs to a media mob he has so long avoided. With municipal elections only days away, the PUP and its Mayoral Candidate took the opportunity to stage a protest against him. It ended in a confrontation where one protester threw eggs at Penner, and others threw water at his head. A dramatic day for sure, but we start at the very beginning, when Penner first arrived at court. Daniel Ortiz reports:

Daniel Ortiz reporting
Elvin Penner made his way up the steps of the Supreme Court unchallenged, and without anyone trying to get into his face, but in the background, insults were being thrown at him. He then entered the Chief Justice's courtroom.

Inside Battlefield Park, the PUP crowd of about 60 persons protested, shouting at the top of their lungs.

Their chants were loud enough for the observers sitting inside the court room to hear what they were saying.

2 hours later, after the attorneys had their say before the Chief Justice, Penner exited the court room, no doubt intending to leave as quickly as he could.

The media seized upon the opportunity to press him for a public statement on the Citizen Kim affair - something which this elected official had refused to do for the past 16 months.

Hon. Elvin Penner - Accused of Immigration Offences
"I have nothing to comment at this point in time."

We kept pressing him, and by the time he reached the front steps of the court house, Penner relented, finally. But instead of talking about his case, he shifted the focus to another criminally accused member of the House, Dr. Marco Tulio Mendez.

Hon. Elvin Penner - Accused of Immigration Offences
"I cannot comment during the time when the trial is in process and I am not going to say if I will even comment afterwards. All I can say is that still the procedures is in at the magistrate and I cannot comment. I am satisfied with how the case is going so far. What I will advise to the media is try to go and chase something out there that is not a ghost. We have a person in Orange Walk, that has been charged for an offence that is my view by far greater than anything that has been alleged against me. Why don't you chase that matter the way you chase this matter here?"

Daniel Ortiz
"A crime is a crime."

Hon. Elvin Penner - Accused of Immigration Offences
"It's a prioritization. I cannot make a comment, it's in the courts. I am satisfies with how the courts' proceedings is going so far. I cannot comment anything on the case itself."

By that time, the PUP crowd rushed up to give Penner a piece of their mind and, one man threw an egg at Penner, ending any further engagements with the press.

His priority then became to get into his vehicle and quickly drive away. The PUP muscle kept hurling insults at him, and before he could escape, someone else threw water at him.

He eventually was allowed to drive away, and police officers at court immediately detained man who threw the egg at him. He was placed in the holding cell to cool down and to dial down the heightened emotion of the crowd.

The crowd made allegations against those responding officers, accusing them of being heavy handed.

Yolanda Schakron - PUP Mayoral Candidate, Belize City
"We are out here, we are standing against injustice. As a mayoral candidate, I am talking about good governance and I am here because I want to see that from our leaders, but today, another travesty of justice was committed against us, the people of the city. We were out here and we just wanted to voice our opinion. I mean, this man see our passport to a criminal. Nothing has been done. He is here and we were very much abused by some of the police officers. I will not say all of them because most of them were very nice. I was hit in the head by a police officer. I have his number. We try to make a complaint. We don't have any voice anymore. People are very upset. This man took and sell our patrimony. This man laughs in our face. I cannot control how the crowd feels."

Daniel Ortiz
"What we can see is that election season is here and you are out here with you people. It's a great publicity stunt."

Yolanda Schakron - PUP Mayoral Candidate, Belize City
"Not at all, it's not a publicity stunt. I have been here many times before. I have stood up for the Belizean people log before politics."

COLA personality Geovannie Brackett says that he's more interested in the principle of the case than the politics behind it.

Geovannie Brackett - Private Prosecutor, Passport Scandal "You are tying in the protest with ours. That is an independent protest, not sanctioned by COLA and the opposition have every right to do what they want, but those were not set and design by COLA. You will know our crowd when we bring our crowd out. In relation to the social aspect of what has transpired here today, is that you have seen that this has been a very strenuous exercise. Strenuous because, we have the parts of a system that supposed to be easy to get to fight for justice. However, we've seen that a court had to force a commissioner to do his job, a DPP who has gone underground - we are no longer in communication. I mean she has stop replying to our request and its very strenuous because you have ordinary citizens trying to get justice on behalf of the nation with individuals who seems to be above normal and supernatural. Mr. Penner, like any other Belizean, has been found with a stick of weed or so, should be brought before the courts."

The Penner case, as is widely known, all goes back to September of 2013, when Penner, as a Minister of State in the Immigration Ministry, facilitated the issuance of a fraudulent passport for South Korean Fugitive Won Hong Kim.

Penner claimed that he was deceived into doing this, but all indications were that Citizen Kim never entered the country because he was in a Taiwanese Prison at the time. Information suggested he never touched foot on Belizean soil, so he couldn't have qualified for a passport.

And so, while that was the action outside the court, inside, COLA Attorney Kareem Musa submitted 3 grounds of appeal to convince the judge that he ought to overturn the acquittal. Those were that the trial magistrate erred in law when she refused to summon Police Commissioner Allen Whylie, that she unfairly exercised her authority to deny the prosecution's request, and that her decision to do so was unreasonable, given that in their opinion, sufficient evidence was produced to convince her to do so.

Chief Justice Benjamin reminded Musa that no judge or magistrate sanctions a fishing expedition, so Musa had to convince the court that this application to summon Whylie was more than that.

After the hearing, we spoke with Kareem Musa outside of court, and he explained why in his opinion the Magistrate should not have refused the application to summon Whylie to court:

Kareem Musa - Attorney for Private Prosecutors
"The magistrate ordered that she did not have the jurisdiction, I believe is what she said, it is our submission that she does have that jurisdiction under section 30 and that is what we argued today, that she does have that jurisdiction to summon him because he has material evidence in his possession."

Daniel Ortiz
"Sir, but the judge himself warned that no judicial officer can allow a fishing expedition against a defendant."

Kareem Musa - Attorney for Private Prosecutors
"I don't find that is what the judge found. That particular case that Ms. Pitts Anderson relied on, spoke of discovery as between the defendant and the prosecution. This is not that case. This is an instance where the prosecution is asking the Commissioner of Police, who is not a party to these proceedings, so it's entirely different. It's not discovery, it's rather for him to deliver material evidence over to the prosecution."

Daniel Ortiz
"So, when does the right for justice oversteps the rights of a defendant to his fairness to be treated under the law?"

Kareem Musa - Attorney for Private Prosecutors
"There are different sections of the law that allow for different procedural applications. This is one of them, where you have a stubborn commissioner of police, who does not want to cooperate even though he has been ordered to do so by the supreme court, then you have applications and that was what was make at the magistrate court's level, an application for him to deliver over those files - that's the application, because we know that he is in possession of material evidence."

"We feel very confident with the applications and the submissions that we have made. We feel that it is our right under section 30, that the magistrate ought to have exercise that discretion, so really and truly, the Chief Justice will be considering whether or not she exercise that discretion, or whether or not she didn't. So, that is what will be determined at the next court date. The decision will be handed down on March 13th."

In Penner's defence, his attorney, Tricia Pitts-Anderson submitted that for any Magistrate contemplating such an application, the prosecutor has the burden to show what material evidence Whylie could have given which would have been beneficial to the case. The weight of that evidence would justify whether the magistrate should summon him. Next, she submitted that COLA's eagerness to find out what was the evidence in the police investigation file is not enough to justify the summons. She also reminded the court that the prosecution has the burden of proof.

Chief Justice Benjamin will hand down his decision on March 13th.

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