By NICO SCAVELLA
Tribune Staff Reporter
AN attorney said yesterday he will consider a judge's offer to recuse herself from presiding over a Jamaican woman's lawsuit against the government over allegations she was raped by a senior immigration officer while in his custody five years ago.
The revelation by Fred Smith, QC, came after Justice Indra Charles revealed she previously ordered the Department of Immigration to reinstate Norman Bastian and pay him damages after a preliminary inquiry into the rape allegation was thrown out three years ago.
Mr Smith said he had "no idea" of that fact prior to commencing legal action on his client Claudia Edwards Bethel's behalf; however, he said he is going to "consider the situation" as it is "important not to make recusal applications unless they are warranted".
The revelations were made in Mrs Bethel's civil suit against the government after her rape case was tossed out of Magistrates Court in March 2016. Mr Bastian was thus never tried on the offence and consequently never convicted.
He denies the rape and maintains the sex was consensual, claiming it was initiated by Mrs Bethel, who has waived her right to anonymity.
Yesterday's revelations were spurred by Assistant Director of Immigration Dwight Beneby's refusal of Mr Smith's invitation to issue a formal apology on the department's behalf because of his squad mate's and now subordinate's alleged actions in December 2014. Mr Smith said his reason for asking for an apology was because his client is seeking aggravated damages because of the Department of Immigration's failure to apologise to his client for its employee's alleged actions.
However, Mr Beneby said there was no reason to apologise because the 2016 preliminary inquiry into the rape allegation was ultimately thrown out by Chief Magistrate Joyann Ferguson-Pratt because Mrs Bethel's testimony at the time was deemed not credible and "terribly shaken".
The preliminary inquiry was to determine whether there was sufficient evidence for Mr Bastian to stand trial in the Supreme Court over the allegations. However, the matter ended at the no-case submission stage in Mr Bastian's favour.
The decision was not appealed by the Crown.
"And so there's nothing to apologise for," Mr Beneby said. However, Mr Beneby said if it ever came to it, "Mr Bastian is quite able to do that himself."
Lead Crown attorney Kayla Green-Smith objected to Mr Smith inviting Mr Beneby to apologise, charging that the assistant director of immigration has "absolutely nothing to apologise for" and that Mr Smith's invitation was "improper".
For her part, Justice Charles expressed her reservations about Mr Beneby being made to oblige Mr Smith's invitation, and subsequently revealed she presided over Mr Bastian's action shortly after the charges were dismissed.
According to Justice Charles, shortly after the preliminary inquiry came to an end, Mr Bastian, who was interdicted and on half-pay, launched an action seeking to compel his reinstatement since the allegations never got off the ground.
At the time, she said Mr Bastian was claiming "substantial sums of money" owed to him. She said there was talk about whether he should receive a promotion, but said the court didn't deal with it at the time.
Justice Charles said she ultimately ruled that the Department of Immigration should fully reinstate Mr Bastian and give him damages.
As such, she told Mr Smith: "If you wish me to recuse myself now, I could."
However, despite acknowledging that what she said was a surprise to him, Mr Smith said he would like the opportunity to fully consider the present situation, as the parties are "deep into this trial" and a judge's recusal is a "serious issue".
Also during yesterday's hearing, Mr Beneby revealed Mr Bastian was never disciplined for his alleged actions, despite acknowledging that Mr Bastian did not have a female immigration officer with him when he took Mrs Bethel from the Carmichael Road Detention Centre (CRDC) on December 15, 2014.
According to the evidence, prior to retrieving Mrs Bethel, Mr Bastian went to the McDonald's fast-food restaurant downtown and retrieved his friend Marsha Curry. He later dropped Ms Curry off on Montrose Avenue, leaving Mrs Bethel in his exclusive custody.
But Mr Beneby said yesterday that Ms Curry was not an immigration officer. Nonetheless, he suggested that Ms Curry not being an immigration officer was inconsequential, and that her mere presence as a female was sufficient. Mr Beneby also said he was surprised that Mr Bastian was accused of rape, because doing so is "not his character".
The matter continues today.