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Appeal Court rules against Attorney General in ‘bad faith and impropriety’ display

Appearing on the front page of The Montserrat Reporter dated September 24, 2010, was the story headlined, “Attorney General Wood accused of ‘bad faith’ by Judge.” The article said: “Attorney General James Wood …has been cited as “displaying bad faith and impropriety,” in a judgment handed down by Justice Henry Moe dated 23rd September, 2010.

Attorney General James Wood

Before stating his decision to grant the applicant leave to Miss Elva Sweeney,  a sergeant in the Royal Montserrat Police Force, to apply for Judicial Review, the honourable Judge had said in his judgment: “…What greater display of bad faith (mal fides) and impropriety on the part of the Honourable Attorney General can be countenanced in this case? It is tantamount to deceit and in this connexion Regina V Croydon Justices exparte Dean (1993) QB 769 is most instructive…”

The Attorney-General made an application to the Court to correct the accidental slip or omission in the Judgment of His Lordship Justice Moe delivered on 23rd September, 2010. Such application was heard in absence of Elva Sweeney or her counsel since they were not given notice of the hearing.  The application was granted and the Judge ordered:
“1. That the error arising from an accidental slip or omission in the judgment of His Lordship Justice Moe delivered on the 23rd September 2010 is hereby corrected as follows:
(a)    Paragraphs 18 and 19 of the decision are hereby deleted and replaced with the following:
“On Considering this authority and others that have been presented to me, I take the view that sufficient evidence has been disclosed which would warrant a full hearing of this matter.”

The Appellant Elva Sweeney appealed against the order and the court of appeal on December 9, 2010, quashed the order which sought to correct the judgment.

One argument put forward by the Attorney General in Affidavit is, the Attorney General, “did not receive a fair opportunity of dealing with the allegations of mala fides against him, …Nor did it give him opportunity to put all his relevant evidence before His Lordship for His Lordship’s due consideration. Clearly, His Lordship did not intend(ed) by his judgement to condemn, unheard, the Attorney General as a person of mala fides contrary to trite natural justice principles.”

In the said Affidavit, The Montserrat Reporter, was named. “5. In fact, the Montserrat Reporter, the newspaper in general circulation in Montserrat, quoting paragraph 19 of the judgement, has declared in is issue of Friday 24 September 2010 that ‘ATTORNEY GENERAL ACCUSED OF BAD FAITH BY JUDGE.’

At the end of the Affidavit it further stated: 7. We further request, in view of the highly prejudicial nature of the newspaper item referred to in paragraph 5, that time is of the essence and that this application be heard as soon practicable.

Justice Moe in making that Order accepted the request of the AG made in an Affidavit in Support on 29th September, 2010, by Barbara Vargas in her acting Attorney General’s capacity, for, “relief from this unfortunate slip in the drafting of paragraphs 18 and 19”, and, “that they be replaced by more neutral wording…”

On 26th November, 2010, David S. Brandt one of Elva Sweeney’s legal representatives filed a Skeleton Argument of 22 clauses seeking leave to file a Notice of Appeal against the new Order by Justice Moe.

In his argument, Brandt noted: “A judge does have power to recall his order before it is issued but not afterward. Once the order is drawn up, judicial mistakes have to be corrected by an appellate court.”

Brandt cited a previous judgment that referenced – “The so-called “slip rule”  is one of the most widely known but misunderstood rules. The rule applies only to “an accidental slip or omission in a  judgement or order”. Essentially it is there to do no more than correct typographical errors…The slip rule cannot be used to enable the court to have second thoughts or to add to its original order…”

Lawyer David S. Brandt

Brandt also in para 21 of his skeleton argument made reference to The Montserrat Reporter mention in the matter. “By referring to the effect of the judgment on the Attorney General by words printed in the Montserrat Reporter, the Learned Judge took into account extraneous matters and so corrupted his judgment.”

The Montserrat Reporter’s website www.themontserratreporter.com was hacked and brought down. When the site was restored, all items posted between September 17 and November 26, 2010, had been destroyed.  Such articles as “Attorney General Wood accused of ‘bad faith’ by judge”, some issues relating to the Constitution, and the Lawyers Code of Ethics, were among the many items hacked away. The matter is still being investigated in an effort to discover who the hacker might have been.

Lawyer Kharl Markham

The judgment by Justice Moe arose out of a matter where Lawyers David S Brandt with Kharl Markham acted for Elva Sweeney, against the Commissioner of Police and the Hon. Attorney General. Elva Sweeney had brought  an “Application for Leave for Judicial Review” in a matter where she was being prosecuted in relation to a charge of unlawful assault on her child Rhonil Lewis.

When Elva Sweeney sought leave to file for Judicial Review proceedings the judge in his decision referenced her saying: “I am informed and believe that the first Respondent the Hon Attorney General) informed my legal representative that notwithstanding the charge of assault laid against me by the second respondent (The Commissioner of Police) the eventual prosecution of the case depended on whether I showed remorse to the probation officer for the manner in which I administered punishment to my child Rhonil Lewis on 26th November, 2009.”

According to Justice Moe, the Hon AG sought and obtained information from probation officer Ezekiel Woodley…”The Hon AG then took the decision to continue with the case.” The judge noted: ”However, Ezekiel Woodley in his Affidavit in para 8 mentioned the following:- “the Hon Attorney General stated in my presence that if Elva Sweeney showed remorse for punishing the juvenile Rhonil Lewis…and undertook not to repeat such punishment the charge of assault made against her in relation to RL would be withdrawn.”

The judge continued: “EW continued at paragraph 14 in his affidavit as follows:” “Elva Sweeney was candid and forthright throughout the interview carried out and there is no doubt that her demeanour and manner throughout the interview were consistent with remorse and compunction for the manner in which she punished her child…”

So in para 8 of the decision the judge stated, “Having carefully read through the evidence and the report of Mr. Ezekiel Woodley I fail to see how it would be in the public’s best interests to proceed with a trial of this nature.

Following are paragraphs 18, 19 and 20 of the said decision of which paras 18 and 19 were ordered deleted and replaced by the judge’s subsequent order. The order was quashed by the Appeal Court and reinstated.

(18) In other words, the presence of dishonesty or mala fides or an exceptional circumstance would render the decision of the Director to consent to the prosecution of the applicants amenable to Judicial Review. “Mala fides” simply means “bad faith”.

(19) What greater display of bad faith (mal fides) and impropriety on the part of the Honourable Attorney General can be countenanced in this case? It is tantamount to deceit and in this connexion Regina V Croydon Justices exparte Dean (1993) QB 769 is most instructive.

(20) In these circumstances after carefully scrutinizing the oral and written submission by both Counsel I would grant the applicant leave to apply for Judicial Review conditional on the applicant making a claim for Judicial Review within 14 days of this Order granting leave.

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A Moment with the Registrar of Lands

Appearing on the front page of The Montserrat Reporter dated September 24, 2010, was the story headlined, “Attorney General Wood accused of ‘bad faith’ by Judge.” The article said: “Attorney General James Wood …has been cited as “displaying bad faith and impropriety,” in a judgment handed down by Justice Henry Moe dated 23rd September, 2010.

Attorney General James Wood

Before stating his decision to grant the applicant leave to Miss Elva Sweeney,  a sergeant in the Royal Montserrat Police Force, to apply for Judicial Review, the honourable Judge had said in his judgment: “…What greater display of bad faith (mal fides) and impropriety on the part of the Honourable Attorney General can be countenanced in this case? It is tantamount to deceit and in this connexion Regina V Croydon Justices exparte Dean (1993) QB 769 is most instructive…”

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The Attorney-General made an application to the Court to correct the accidental slip or omission in the Judgment of His Lordship Justice Moe delivered on 23rd September, 2010. Such application was heard in absence of Elva Sweeney or her counsel since they were not given notice of the hearing.  The application was granted and the Judge ordered:
“1. That the error arising from an accidental slip or omission in the judgment of His Lordship Justice Moe delivered on the 23rd September 2010 is hereby corrected as follows:
(a)    Paragraphs 18 and 19 of the decision are hereby deleted and replaced with the following:
“On Considering this authority and others that have been presented to me, I take the view that sufficient evidence has been disclosed which would warrant a full hearing of this matter.”

The Appellant Elva Sweeney appealed against the order and the court of appeal on December 9, 2010, quashed the order which sought to correct the judgment.

One argument put forward by the Attorney General in Affidavit is, the Attorney General, “did not receive a fair opportunity of dealing with the allegations of mala fides against him, …Nor did it give him opportunity to put all his relevant evidence before His Lordship for His Lordship’s due consideration. Clearly, His Lordship did not intend(ed) by his judgement to condemn, unheard, the Attorney General as a person of mala fides contrary to trite natural justice principles.”

In the said Affidavit, The Montserrat Reporter, was named. “5. In fact, the Montserrat Reporter, the newspaper in general circulation in Montserrat, quoting paragraph 19 of the judgement, has declared in is issue of Friday 24 September 2010 that ‘ATTORNEY GENERAL ACCUSED OF BAD FAITH BY JUDGE.’

At the end of the Affidavit it further stated: 7. We further request, in view of the highly prejudicial nature of the newspaper item referred to in paragraph 5, that time is of the essence and that this application be heard as soon practicable.

Justice Moe in making that Order accepted the request of the AG made in an Affidavit in Support on 29th September, 2010, by Barbara Vargas in her acting Attorney General’s capacity, for, “relief from this unfortunate slip in the drafting of paragraphs 18 and 19”, and, “that they be replaced by more neutral wording…”

On 26th November, 2010, David S. Brandt one of Elva Sweeney’s legal representatives filed a Skeleton Argument of 22 clauses seeking leave to file a Notice of Appeal against the new Order by Justice Moe.

In his argument, Brandt noted: “A judge does have power to recall his order before it is issued but not afterward. Once the order is drawn up, judicial mistakes have to be corrected by an appellate court.”

Brandt cited a previous judgment that referenced – “The so-called “slip rule”  is one of the most widely known but misunderstood rules. The rule applies only to “an accidental slip or omission in a  judgement or order”. Essentially it is there to do no more than correct typographical errors…The slip rule cannot be used to enable the court to have second thoughts or to add to its original order…”

Lawyer David S. Brandt

Brandt also in para 21 of his skeleton argument made reference to The Montserrat Reporter mention in the matter. “By referring to the effect of the judgment on the Attorney General by words printed in the Montserrat Reporter, the Learned Judge took into account extraneous matters and so corrupted his judgment.”

The Montserrat Reporter’s website www.themontserratreporter.com was hacked and brought down. When the site was restored, all items posted between September 17 and November 26, 2010, had been destroyed.  Such articles as “Attorney General Wood accused of ‘bad faith’ by judge”, some issues relating to the Constitution, and the Lawyers Code of Ethics, were among the many items hacked away. The matter is still being investigated in an effort to discover who the hacker might have been.

Lawyer Kharl Markham

The judgment by Justice Moe arose out of a matter where Lawyers David S Brandt with Kharl Markham acted for Elva Sweeney, against the Commissioner of Police and the Hon. Attorney General. Elva Sweeney had brought  an “Application for Leave for Judicial Review” in a matter where she was being prosecuted in relation to a charge of unlawful assault on her child Rhonil Lewis.

When Elva Sweeney sought leave to file for Judicial Review proceedings the judge in his decision referenced her saying: “I am informed and believe that the first Respondent the Hon Attorney General) informed my legal representative that notwithstanding the charge of assault laid against me by the second respondent (The Commissioner of Police) the eventual prosecution of the case depended on whether I showed remorse to the probation officer for the manner in which I administered punishment to my child Rhonil Lewis on 26th November, 2009.”

According to Justice Moe, the Hon AG sought and obtained information from probation officer Ezekiel Woodley…”The Hon AG then took the decision to continue with the case.” The judge noted: ”However, Ezekiel Woodley in his Affidavit in para 8 mentioned the following:- “the Hon Attorney General stated in my presence that if Elva Sweeney showed remorse for punishing the juvenile Rhonil Lewis…and undertook not to repeat such punishment the charge of assault made against her in relation to RL would be withdrawn.”

The judge continued: “EW continued at paragraph 14 in his affidavit as follows:” “Elva Sweeney was candid and forthright throughout the interview carried out and there is no doubt that her demeanour and manner throughout the interview were consistent with remorse and compunction for the manner in which she punished her child…”

So in para 8 of the decision the judge stated, “Having carefully read through the evidence and the report of Mr. Ezekiel Woodley I fail to see how it would be in the public’s best interests to proceed with a trial of this nature.

Following are paragraphs 18, 19 and 20 of the said decision of which paras 18 and 19 were ordered deleted and replaced by the judge’s subsequent order. The order was quashed by the Appeal Court and reinstated.

(18) In other words, the presence of dishonesty or mala fides or an exceptional circumstance would render the decision of the Director to consent to the prosecution of the applicants amenable to Judicial Review. “Mala fides” simply means “bad faith”.

(19) What greater display of bad faith (mal fides) and impropriety on the part of the Honourable Attorney General can be countenanced in this case? It is tantamount to deceit and in this connexion Regina V Croydon Justices exparte Dean (1993) QB 769 is most instructive.

(20) In these circumstances after carefully scrutinizing the oral and written submission by both Counsel I would grant the applicant leave to apply for Judicial Review conditional on the applicant making a claim for Judicial Review within 14 days of this Order granting leave.