By NICO SCAVELLA
Tribune Staff Reporter
A FORMER ZNS reporter has been found in “contumacious” contempt of court for giving false testimony why being cross-examined for his alleged involvement in defamatory websites and articles published against billionaire hedge fund manager Louis Bacon.
Justice Indra Charles, in her written judgement earlier this month, said she was “satisfied beyond reasonable doubt” that Sherman Brown “knowingly and deliberately made false statements” before the Deputy Registrar of the Supreme Court in November 2014 and, in doing so, said Mr Brown “knew and intended that, by lying in a court of law, he would impede and interfere with the proper administration of justice”.
Justice Charles said it was “striking” that throughout the duration of the many proceedings into the matter, “not one golden word” was said by Mr Brown to challenge the “uncompromising allegations” of giving false testimony levied against him by Mr Bacon. She said Mr Brown “failed to file any affidavit evidence as ordered by the court”.
Justice Charles’ ruling, which has been obtained by The Tribune, was delivered on December 17. Attempts by The Tribune to reach Mr Brown’s legal representatives for comment on Thursday were unsuccessful.
As a result of her ruling, Mr Brown faces imprisonment in the Bahamas Department of Correctional Services. However, Justice Charles said two issues remain “outstanding” - sanction and costs - which she said would be resolved with counsel “at a date convenient to all parties”.
According to Justice Charles’ ruling, on November 17, 2014, Mr Brown was examined under oath before the Deputy Registrar in relation to matters contained in a Norwich Pharmacal (NP) Order, which had been obtained by Mr Bacon on June 13, 2012 after it was revealed that Mr Brown allegedly provided one of two “webmasters” with instructions in relation to the “set-up and construction” of one of two websites used to allegedly launch a smear campaign against Mr Bacon.
Mr Bacon alleged that in the course of that examination, Mr Brown knowingly and deliberately made certain false statements under oath and thereby impeded and interfered with the proper administration of justice. Consequently, on February 3, 2015, Mr Bacon applied, ex-parte, for leave to commence committal proceedings against Mr Brown, which was supported by an affidavit sword by Michela E Barnett-Ellis on the same day.
On March 2, the court granted permission to bring committal proceedings against Mr Brown. The court further ordered that the Attorney General be served with “all relevant documentation relating to the application for consideration as to whether criminal charges for perjury should be brought against Mr Brown”.
On June 4, in the presence of Mr Brown’s new attorney Krystal Rolle, the court ordered, inter alia, that Mr Brown “shall file and serve any affidavit evidence upon which he wishes to rely” by June 30. However, Justice Charles said Mr Brown “failed to file any affidavit evidence as ordered by the court”. To that end, Justice Charles observed said it was “striking” that Mr Brown did not seek to file any evidence despite the allegations.
“Mr Brown is a journalist and an author,” she said in her ruling. “Unquestionably, he is a man of some ilk. It is indeed telling that not one golden word has fallen from his lips in the midst of uncompromising allegations that he unknowingly and deliberately made false statements in a court of law. He had a further opportunity to narrate his account because he could have requested to give oral testimony at this hearing.”
Nonetheless, Mr Brown, via his attorney launched two main challenges to the committal application: that the committal application is an abuse of the court’s process, and that it would be “more appropriate” for the issues raised in the application to be determined in the substantive action.
Mr Brown also submitted that if the application proceeded, then there had been no interference with the course of justice. However, Justice Charles Justice Charles ruled that “the committal application is not an abuse of the process of the court and the submissions advanced by (Mrs Rolle) are misconceived and must fail”.
“Before he was cross-examined before the Deputy Registrar, he took an oath to tell the truth and nothing but the truth,” Justice Charles added. “It must be taken that, as a journalist and author no doubt a well-read man, he understood the oath. Undeniably, the words of the oath are straightforward … The making of false statements under oath was an attempt to frustrate the NP Order. The effect was clearly to avoid compliance with the NP Order and as such, to interfere with the course of justice.
“In conclusion, I am satisfied beyond reasonable doubt that Mr Brown knowingly and deliberately made false statements before the Deputy Registrar and he knew and intended that, by lying in a court of law, he would impede and interfere with the proper administration of justice. Consequently, I find Mr Brown to be in contumacious contempt of court. Two issues remain outstanding - that of sanction and costs. I shall hear counsel at a date convenient to all parties.”
Justice Charles’ ruling stems from an ongoing feud between Mr Bacon and fashion designer Peter Nygard, who own adjacent mansions at Lyford Cay. Mr Bacon, an environmentalist, claims that Mr Nygard has retaliated against him because he believes it was Mr Bacon who complained about the alleged environmental damage being done by the dredging of the seabed to expand the Nygard Cay property.
Mr Bacon is suing Mr Nygard for $100m for defamation. He has alleged that the fashion designer organised rallies, marches and protests where he was defamed, created and distributed defamatory T-shirts and signs, published defamatory accusations about him and used websites to defame him.
However, Mr Nygard filed a $50m countersuit in April accusing Mr Bacon of a “vendetta” against him, including harassment and frivolous litigation. Each has denied the other’s allegations.
In July, however, a New York judge threw out 105 of the 135 allegedly defamatory statements Mr Bacon claimed Mr Nygard had levelled against him during a “harassment campaign” in the Bahamas. Justice Cynthia Kern ruled that Mr Bacon was too late in filing the majority of his claims of defamation against Mr Nygard.
In a decision dated July 28, Judge Kern said many of the alleged statements were made more than one year before the lawsuit was filed, thus exceeding the state’s statute of limitations.