Chief Justice Anthony Smellie insisted on a criminal investigation into newspaper letters criticising him and other judges, but was rebuked by top police commanders.
The revelations emerged as Mr. Smellie took the stand at the Justice Priya Levers tribunal Wednesday afternoon.
During four hours of persistent cross-examination by Stanley Brodie QC, for Justice Levers, Mr. Smellie said he sought the investigation into the letters – which Mrs. Levers is now accused of writing – believing their criticisms of the judiciary to be illegal.
The view was not shared by then Chief Superintendent John Jones, who said he did not see why police in a free and democratic society should be investigating newspaper criticisms of the chief justice.
‘I cannot find anything in the Penal Code that suggests criticising the (Chief Justice) outside judicial proceedings constitutes an offence,’ Mr. Jones said in an email to then Commissioner of Police Stuart Kernohan that was read to the tribunal.
‘As far as I can see, this is criticism that any public servant/department in a free and democratic society should expect,’ Mr. Jones said, adding that he found the ‘implicit expectation’ that police should investigate the Net News ‘worrying’.
‘I would suggest that it would be a greater threat to national security for the police to be used to stifle open debate (and) free speech in a newspaper and we could be treading on a very dangerous line.’
Mr. Smellie on Wednesday described Mr. Jones’ comments ‘a misconceived view of the law’ and revealed that he continued to push for a criminal probe into the letters after he became suspicious Mrs. Levers was the author and even after Governor Stuart Jack had resolved to hold the judicial tribunal into claims against her.
‘I thought because of the nature of the allegation and the implications, the police should conduct an inquiry even if, at the end of the day, the Attorney General, after consulting myself and the Governor, were to determine not to charge criminally for it,’ he said.
The revelations came as Mr. Brodie probed the chief justice on why he had taken his concerns about Mrs. Levers to Governor Stuart Jack, a move that ultimately led to the tribunal being formed to consider the judge’s removal from office for misbehaviour.
Under the Cayman Islands Constitution, judges have tenure, and can only be removed from office on the grounds of misbehaviour or infirmity of mind or body.
Levers ‘hostile’ to CJ
Mr. Smellie revealed he first tried to deal with the complaints he had received about Mrs. Levers in-house, sending her a memorandum that he expected to discuss confidentially with her.
‘My intention was to have a confidential discussion, one-to-one, heart-to-heart, with her about these matters,’ Mr Smellie explained.
But he did not get the reaction he expected; Justice Levers told him she had referred his concerns to attorneys in London and Cayman and he would be hearing from them in due course.
‘She was pretty cross, was she not?’ Mr. Brodie asked. ‘Oh yes,’ Mr. Smellie said.
In a statement to the tribunal Mr. Smellie has said that Mrs Levers became ‘openly hostile’ towards him in the ensuing months.
‘I believe it is more than a coincidence that the reports of disparaging comments about myself, other judges, and other persons commenced after Justice Levers received the memo, and that the critical letters, including the Leticia Barton letter, then began to appear in the Cayman Net News,’ the statement said.
However, Mr. Smellie said he initially believed someone else that worked within the courts system had written the letters.
His view changed after being approached by the judge’s long time secretary, Elizabeth Webb, who related to him ‘a number of very troubling concerns’, including evidence that Mrs. Levers could be the letter writer.
Mrs. Webb’s claims were backed by accounts from other court staff and followed complaints from two Canadian court reporters about inappropriate courtroom behaviour and bias on the judge’s part. The reporters produced transcripts evidencing their concerns.
Discussing the transcripts, Mr. Smellie said he had been ‘astonished’ by comments the judge had made about a Jamaican woman who was the victim of a brutal and near fatal domestic abuse.
Mrs. Levers had asked why a ‘woman like that’ was being allowed to apply for Caymanian status and questioned why she hadn’t been sent back to Jamaica.
‘She had been the victim of the assault,’ Mr. Smellie said. ‘The suggestion that her behaviour … was a matter [that] called properly for the scrutiny and disparaging comment of the court in this way was a matter of astonishment,’ he said.
‘There are particular references to this particular person which I found … deeply offensive and would be so viewed by any member of the public,’ he said.
The Chief Justice also detailed how he was ‘shocked’ to learn Mrs. Levers was issuing arrest warrants for people that didn’t show up for jury duty and even more amazed when she continued despite being told she didn’t have the power.
When confronted, Justice Levers complained that Mr. Smellie should have issued some legal advice to judges and other lawyers about if and when jurors could be arrested – an argument Mr. Smellie was not impressed with.
‘Madam Justice Levers ought to know what the law says,’ Mr. Smellie said. ‘The notion that she is not aware of what the law says was not one that I was prepared to accept.’
The tribunal ran overtime Wednesday to conclude Mr. Smellie’s appearance. Justice Levers was expected to give evidence Thursday before the tribunal hears closing submissions.
While the Campbells law firm, which is representing court staff, were given special dispensation to re-examine Mr. Smellie following questioning by Justice Levers’ lawyers, the option was not exercised.
For full transcripts and for regular reports from the tribunal, visit www.caycompass.com