By NICO SCAVELLA
Tribune Staff Reporter
ATTORNEYS for former PLP Senator Frank Smith on Saturday foreshadowed accusations of perverting the course of justice against the Crown after the prosecution conceded that a key component of its evidence, the call logs between the accused and its key witness, are flawed and thus warranted being recently abandoned by the prosecution.
Damian Gomez, QC, told Chief Magistrate Joyann Ferguson-Pratt that the defence would in time be making a no case submission that there has been a “deliberate falsification” of the call logs between Smith and Barbara Hanna by agents of the Crown to deceive the defence in its preparation of the case and the court into drawing “adverse conclusions” against his client.
Mr Gomez’s submissions came after lead Crown attorney Edward Jenkins, QC, objected to the defence using the call logs to cross-examine Health Minister Dr Duane Sands on the basis that the BTC phone bills associated with Mrs Hanna proved that the call logs were flawed, and that the defence should instead utilise the phone bills.
Mr Jenkins stressed that he was not conceding that there has been a deliberate manipulation by any officer or Crown witness involved in the case. However, he said as the billing records were being ventilated in court, the Crown began to consider what the appropriate view would be to take concerning the call logs, in that the prosecution doesn’t want them to be given “more weight than they should be given”.
Mr Jenkins effectively revealed that the Crown had consequently abandoned the call logs as part of its evidence against Smith, something Chief Magistrate Ferguson-Pratt said she was just hearing for the first time on Saturday, and something lead defence attorney Keith Knight, QC, said Smith’s legal team was never informed of prior to that hearing.
“We should have been told long ago that this has been abandoned,” Mr Knight said. “We were never told.”
Chief Magistrate Ferguson-Pratt said for her part the matter was “troubling,” given that based on the legal discussions in court on Saturday, the Crown was using the call logs to show that Smith, the former chairman of the Public Hospitals Authority (PHA), was hounding Mrs Hanna for the $5,000 monthly payments he allegedly demanded from her after she got a cleaning contract from that institution.
As such, Chief Magistrate Ferguson-Pratt questioned how, as the tribunal of both fact and law, is she to now reconcile being told that the call logs, which were exhibited by the Crown, are “somewhat tainted because it is not correct.”
“How could this court deal with that?” she asked. “How do I attach weight to that?”
Chief Magistrate Ferguson-Pratt also questioned why the Crown did not make that concession earlier, to which Mr Jenkins responded he did previously indicate to the court the Crown’s position that it concedes that there are discrepancies between the call logs and the phone bills in question.
Nonetheless, Chief Magistrate Ferguson-Pratt ultimately said she did not know if it would be right or judicious for her to preclude the defence from their line of cross-examination when it in turn relies on the Crown’s exhibit to execute that process.
According to Mr Knight, as part of the overarching issue concerning the call logs, the Crown had claimed 93 percent of the calls between Smith and Mrs Hanna emanated from Smith’s phone.
However, it has been established that while the call logs in question purport to show a number of outgoing calls from Smith’s cell phone to Mrs Hanna, it was the other way around. Conversely, Mrs Hanna’s phone bill showed that on numerous occasions dating back to January 2017, a number of outgoing calls were made from her phone number to Smith’s cell phone number.
Previously, Mr Gomez said based on Mrs Hanna’s BTC phone bill, a total of 64 calls were made between the two, as opposed to the 106 purported to have been made in a police officer’s report. And according to Mrs Hanna’s bill, she initiated some 59 phone calls to Smith, as opposed to the five times he called her.
When the Crown made its concession on Saturday, Mr Knight was attempting to walk through the call logs associated with both Dr Sands’ and Mrs Hanna’s cell phone numbers in a bid to cross-examine him over his previous testimony concerning himself and Mrs Hanna’s phone relationship sometime between November of 2016 and the early months of 2017.
Previously, Dr Sands claimed that after he first spoke with Mrs Hanna by telephone in November 2016, he received “many, many” calls from her, and that at one point, Mrs Hanna tried to call him some 14 to 15 times in one day.
According to Mr Knight, however, between January 26 and March 30, 2017, based on call logs there were 16 phone calls between the two, 15 of which Dr Sands initiated. And the one time Mrs Hanna called Dr Sands, came on May 25, and not on May 10 following the FNM’s victory at the polls as Dr Sands had previously claimed, the call logs showed.
Conversely, it was Dr Sands who called Mrs Hanna on May 10, according to the call logs.
Concerning the Crown’s concession concerning the call logs, Mr Knight argued that based on the history of who had custody of the call logs in the matter, any alteration of the data contained in the call logs could have only taken place while they were in the custody of the police. If so, Mr Knight said such an act is tantamount to perverting the course of justice, a criminal charge.
Mr Knight said there is an “honourable way” for the Crown to deal with the matter, adding that as both sides belong to a profession that is “both noble and learned,” they are “expected to do the honourable thing.”
Dr Sands, while being cross-examined, also revealed that the reason he did not speak with former Health Minister Dr Perry Gomez about Mrs Hanna’s complaints that she was being made to pay Smith $5,000 a month in exchange for him helping her to get a PHA contract was because Mrs Hanna claimed to him that she also had to pay Dr Gomez’s secretary $500 a month.
Dr Sands, in response to a question asked by Mr Knight, said Mrs Hanna told him why she had to pay the $500 to Dr Gomez’s secretary, though that reason was never unearthed. However, Dr Sands conceded that it was not an appropriate payment for Mrs Hanna to have been making.
In response, Mr Knight noted that it was the first time the defence was hearing such evidence, and that Mrs Hanna, while taking the witness stand, never indicated that she had to pay Dr Gomez’s secretary $500 payments.
Mr Knight further noted that Dr Sands never mentioned anything about Mrs Hanna having to pay $500 in his two statements to police, something the health minister denied.
The matter continues today.
Smith is facing 15 criminal charges concerning his alleged solicitation of $65,000 in bribes from a woman he is said to have assisted in getting a contract. He is currently out on $50,000 bail.
It is alleged that Smith, between April 2016 and April 2017, in respect of his duties as a public officer, demanded and obtained $5,000 a month from Mrs Hanna, knowing he was not lawfully authorised to do so.
He is also alleged to have attempted to extort another $5,000 from Mrs Hanna.
Concerning the bribery charge, it is alleged he solicited $5,000 a month from Mrs Hanna for aiding her in getting a contract with the PHA.
Smith pleaded not guilty to all the allegations during his arraignment.