David Samuel Brandt, prominent Montserrat attorney-at-law may well make the history books, not because it was so desired by the accusers or the perpetrated prosecutors, nor his prominence of being a well-loved and long-serving politician, for Chief Minister, but for the length of time sexual charges, repeatedly said to be very serious ones, finally has a date set for trial and confirmed to begin on February 28, 2020; while languishing in jail for bail revoked and refused.
But, prosecutors and judges have and will say it was his efforts to stall the charges in the courts that cause the delay in a trial date.
This trial has its beginning from over ten years ago with the arrest and charges laid in September, 2015, Since then it’s been up and down, in and out trial of David Brandt who is facing charges on several counts of child exploitation of underaged girls. Now a new judge has been named and has already had chamber hearings into the matter, with quiet and unconfirmed information that the hearing may not actually begin in earnest for yet another two to three months. The question posed to the informer, is it possible that the unusual bail revocation be reversed, as it is unusual enough already in the circumstances to help make the court history books.
The date which had been set since last year and again earlier this year is February 28, 2020. His Lordship the Hon Justice Rajiv Persad from Trinidad is the new judge who replaces Justice Gareth Evans, and who was brought (sent in) following Justice Morley both of whom had been recused from the Brandt trial. Justice Persad who practices in Trinidad has reportedly served on previous occasions in the East Caribbean Supreme Court arena.
This matter has reached this stage after the lengthy preliminary battles against the charges and the process from the magistrate’s court to now.
Recusals (Morley and Evans)
As reported earlier Justice Morley first installed for the trial was recused, doing so willingly. But, his replacement Justice Gareth Evans after revoking Brand’s bail and remanding him to prison, was later also requested to recuse himself from the Brandt matters. He refused to be recused in a 90 clause long Ruling which was delivered within half an hour of the end of the hearing. See – https://www.themontserratreporter.com/second-judge-off-the-brandt-trial/
Dr. David Dorsett, Brandt’s legal representative in one of his Constitutional challenges, had also appealed the judge’s decision in the matter. Her Ladyship the Hon. Mde. Louise Esther Blenman, Justice of appeal on October 23, 2019, heard the matter and ruled: (1) the request that bail be considered by another High Court judge is refused.
(2) That the criminal trial of the appellant (Brandt) be presided over by a judge of the High Court other than Justice Evans, pending the hearing and determination of the appeal against him, refusing to recuse himself from the trial…
Brandt did not comply with case management directions to file written submissions on the issue of admissibility of the evidence obtained from his seized telephone. Instead, he filed a fixed date claim seeking inter alia declarations that: (i) his right to privacy under section 9 of the Constitution of Montserrat [the •constitution] was contravened; (ii) the search of his cell phones without prior authorisation was unlawful and unconstitutional; and (iii) the evidence obtained from the search of his cell phones is inadmissible as evidence against him.
The learned judge Evans dismissed the claim, found that the use of the court’s jurisdiction to grant relief under the Constitution in the circumstances was wholly inappropriate and constituted an abuse of process.
The Fixed Claim hearing and eventual bail revocation
Last year June, it was just days (Friday to Tuesday) after that matter, the bail revocation was ordered, the decision in the foregoing matter coming sometime later the Antiguan lawyer Dr. Dorsett filed an appeal on Brandt’s behalf. Following this also, was the request for Evans to recuse himself when on grounds that he had shown and practiced bias in the matters following hearing of the cell phone issues and the matter that lead to the bail revocation, a matter that in part was held ‘ex parte’ Brandt in the first instance and the next with one of his early attorney’s, but allegedly without being able to contest or inquire into anything at that hearing. It was after that episode that Brandt’s bail was revoked.
Dr. Dorsett files appeal after judge’s refusal to recuse himself, but withdraws on Court’s ‘advice’
In order to file an appeal, we learned that the lawyer had requested the transcript on that hearing which was redacted. Justice Evans having refused to recuse himself the matter was eventually set to be heard by the Appeal Court, but was dismissed when according to Dr. Dorsett, he withdrew the appeal based on an ‘announcement’ by the Court when it sat on January 27, 2020, here in Montserrat.
Following that decision with Justice Evans finally gone from the Brandt’s trial, Dr. Dorsett speaking with the media, said, he was “happy as a lark”. He said he knew that the matter would end up favourable because Justice Blenman had issued the initial order, having read his submissions and Justice Evans’ ruling on his request for his recusal. In the said ruling Evans had written in one instance, regarding Dorsett’s submissions, “The contentions are weak to the point of being fanciful.”
Justice Evans had concluded his ruling (one that was not intended to be public) in the 87th paragraph, wrote:I reject that contention for the following reasons: (a) The contentions are weak to the point of being fanciful. (b) They contain no scandalous or personal attacks upon me.
“I am happy as a lark. From the time the matter got on appeal before justice Blenman the tide started to turn in our favor. I mean I don’t want to be critical of a judge, but every time before, everything we did, he (Evans) said I was wrong; I mean he criticized me in ways in which some was suggesting I was an incompetent lawyer, didn’t know what I was doing, like I was some scamp…,” Dorsett said, citing his record, competency and commenting further that the Judge should not make a judgement and want it to be secret.
He contended – “… we are saying going forward, we must have an assurance that a court proceeding with the matter is unbiased. As a matter a fact as a matter of appearance, appearance is what matters. The people of Montserrat is entitled to look up on a Court and feel confident that fairness is being done and seen to be done; and we are not talking about what the people of England think is fair, but what the people in Davy Hill think and Olveston and other parts of Montserrat think…”
Meantime, other than being charged and already being in jail for four months –
Judge dismisses Attorney’s Request for bail
This item was reported by ZJBNews. The High Court of Justice on Montserrat has refused an application for re-admittance to bail in the case against prominent Attorney David S Brandt.
Mr. Brandt on November 18th asked that the court consider reinstating bail, after Justice Gareth Evans in July ordered that the attorney’s bail be revoked. The judge said this was in response to four years of stalled tactics by Brandt’s attorneys. Mr. Brandt was incarcerated and based on this ruling would remain in custody until his trial.
Dr. David Dorsette appeared for Mr. Brandt via zoom link, while Attorney Henry Gordon held papers for Annesta Weekes QC for the Crown who appeared later by Zoom Link. His Acting Lordship, the Honourable Stanley John presided over the matter.
Charged with several counts of sexual exploitation of underage girls, including having unlawful sexual intercourse with a girl under the age of 16 years. He was to be tried originally on November 18th, but the court ruling now means that a new date will have to be set for the trial.
The Constitutional Appeal
It was at the said sitting that the Civil Appeal in the matter of the seizure and search of Brandt’s cell phone was heard. The Court described the appeal thus: “The thrust of his (Brandt’s) appeal was that the learned judge erred in dismissing his claim as the search of his cell phones was in violation of his constitutional right to privacy and unlawful. Mr. Brandt also challenged the learned judge’s decision to make a costs order against him.”
After the decision was delivered later in St. Kitts, it was described by Dr. Dorsett as ‘a partial victory’.
Held: allowing the appeal in part; affirming the order as to costs made in the court below; and awarding costs of the appeal to the respondents at the rate of one-half of the amount assessed in the court below, that:
1. The recourse to the Constitution for a declaration that the search of the cell phones was unconstitutional was an abuse of process as effective alternative means of redress were available to the appellant in the circumstances to challenge the use of the evidence gathered from such search.
2. (per Michel JA and Webster JA [Ag.]) The search of the appellant’s cell phones was unlawful but did not breach his constitutional right to privacy.
3. The finding by the court below that the claim was an abuse of process satisfied the requirement under rule 56.13 of the Civil Procedure Rules 2000 that the appellant had acted unreasonably in making the application and the exercise of discretion by the judge below should not be disturbed.
4. The matter is remitted to the High Court for assessing the costs of the proceedings in the High Court and costs of the appeal are awarded to the respondents in the amount of one-half of the amount assessed as costs in the court below.
The trial to begin February 28
Brandt will now face his trial and it is here that he is expected to correct his approach and where he will have the opportunity as the appeal court notes, he can “challenge the use of the evidence gathered from such search.” at the beginning of his trial. It is then believed that matter will be the first order of business.
There is now late news that in another ‘private’hearing was the matter of a judge ordering an attorney be appointed to assist Brandt’s in his defence
