CJ reveals petition and letters as tribunal trigger

(CNS): The suspicions of court staff that Justice Priya Levers was behind an internal petition questioning his management of the court, as well as a series of letters to a newspaper critical about the judiciary, were the reasons Chief Justice Anthony Smellie gave to the tribunal for his approach to the governor to raise the issue of an enquiry into the judge’s conduct. On the sixth day of the proceedings the tribunal also heard that Smellie made the decision without having investigated the veracity of the accusations.

He told the tribunal that because of existing concerns he had over Levers’ conduct raised by court reporters, family court complaints and informal accusations, the allegations over the letters and petition combined were of sufficient, serious significance to approach Governor Stuart Jack, who then set the tribunal inmotion.

Although it became apparent through the examination of the witness statements that there was no concrete evidence that Levers had actually written the letters or organized the petition, Smellie admitted he had taken it on face value. He said that based on the information given to him by a number of members of the court staff, in particular Elizabeth Webb, he did not conclude she had been the author but that there was enough suspicion that she may have been.

At the start of several hours of cross examination Stanley Brodie QC took the chief justice back through his long standing good relationship with Levers, his encouragement of her to apply for the post as Grand Court judge in the Cayman Islands and his previous high regard for her. The chief justice confirmed that he had no reason to doubt her suitability as a judge.

“So all in all until March 2007 you considered it a good appointment?” Brodie asked, to which the CJ agreed saying he found her to be a hard working, competent judge.

Brodie then asked Smellie about the statement submitted by Karen Myren and the memo she had sent to him painting a damning picture of Justice Levers’ behaviour in court. Brodie said he must have been surprised by it as it was inconsistent with his own perception, and the chief justice confirmed that he was shocked. Asked why he did not cross check the claims with the attorney’s involved, Smellie said that Myren’s memo came with the transcripts of the court proceedings and he did not wish to confer with anyone else as he hoped to treat the matter confidentially. At the time, he added, he had no intention to make it a matter for enquiry.

“It was my intention to speak in confidence with JusticeLevers about the transcripts,” he said, explaining he had concerns with some of the things she had said in court that were irrelevant to the cases in question. Brodie established at that point there were two complaints from family court against Levers and Myren’s description of her court room with the transcripts. “Yes that is right,” he said, adding that a third complaint from family court came a few days later. He confirmed that he had no formal complaints from litigants or attorneys.

Brodie then asked about the language used by the chief justice in his first memo to Justice Levers describing a “groundswell” of complaints, and asked him if that was appropriate.

“In retrospect no,” Smellie said.

Brodie queried what were “the myriad complaints” he had referred to in the memo, and Smellie said that there had been informal complaints by various persons but he had not encouraged any formal complaints and accepted that the use of the word “complaints” in the memo was “misplaced".

Reading from the memo, Brodie asked the chief justice how he had expected Levers to respond to it given that he was accusing her of injudicial behaviour and bias. Smellie said that he had not meant to convey that she was not fit for office but that it could lead to perceptions that she was not and said he understood why she may have been upset by the memo’s implications

“If I had anticipated the reaction I would not have used the choice of words,” he said. He explained that he had concerns about the discourtesy revealed in the transcript but he was also concerned that Justice Levers had been fining and issuing arrest warrants for jurors who had failed to turn up at court, which he said was a point of law thatshe was breaching.

Discussing Levers’ response to his memo, the chief justice said he was not entirely satisfied that she had taken to heart his concerns and was further concerned by the fact that she had taken legal advice. It was then revealed that Levers had raised the issue in her response to him that his criticisms of her fining jurors and other points could not have anything to do with the accusation of bias he had made.

Throughout the afternoon’s cross examination Brodie raised numerous questions about the presentation of the memo, the grounds for the CJ’s concerns and the fact that he had not investigated any of the claims before first sending Levers a warning and then later going to the governor. “If a judge was performing badly, would you not expect the Law Society to make representation? “ Brodie asked the CJ, but he said that was not necessarily the case.

Brodie also noted Smellie’s own words regarding the court reporters when he wrote in his memo to Levers that in his own experience stenographers could be a useful gauge on the courts and asked if he was serious about that, to which the Chief Justice he said he was. “So you think it’s appropriate to consult court reporters to see if you are doing your job properly when you are in court?” he asked. “I did not say that,” the chief justice replied indignantly.

Following discussions regarding a number of problems in the court system and the reasons for Levers’ possible frustrations with crown counsel, Brodie eventually moved to the evidence of Webb. Referring the chief justice to the notes that Webb had found in Levers’ car and copied, he asked what he believed it to be. Smellie admitted that it was possibly a plan by Levers to become chief justice and something he had forwarded to the governor along with other documents to support his concerns about her.

It was then revealed that the notes were those that Webb had described earlier in the week as notes from a card reader, but when presented with the alternative that they could also be notes by Levers to herself to remind her to do certain things, the chief justice accepted that as a possibility.

Smellie’s concerns about the Net News letters were then revealed as Brodie asked him about his approach to the police to investigate who had written them. Brodie illustrated the reluctance on behalf of the RCIPS to do so by reading an email sent from Chief Superintendent John Jones to then Commissioner Stuart Kernohan questioning the wisdom of such an investigation in a democracy.

Brodie asked CJ why he had not bothered to look into Webb’s account of why she felt Levers had written the letters before he went to the governor. The chief justice said he felt it was more than a coincidence that the critical letters began to appear after his warning to Levers over her behaviour and this fuelled his decision. He said he had no reason to doubt what Elizabeth Webb had said about the letters and referred to other staff members giving him information about Levers spending long periods of time behind closed doors with staff that he suspected were behind the courthouse petition against him.

Brodie asked if it was fair to say that Webb’s evidence played a significant part in his decision regarding the letters and the allegation that she made that Levers was involved in the petition, to which the Chief Justice agreed.

When Brodie questioned how Webb could have concluded what she did given her evidence (see Secretary says Levers wrote “Net News” letters) the chief justice said Webb had probably inferred the content given the previous letters but he was reluctant to conclude why. “I am not prepared to venture an explanation on her testimony,” the chief justice said.

Brodie asked him how, as chief justice, he had managed to refer these issues to the governor leading to the possible removal of a judge but he did not think to check out any of the evidence first.

“Check out what?” the CJ asked, adding that a number of things had been revealed to him, including allegations of improper relationships, petitions and letters and he did not know what he should have been interrogating anyone about as Brodie suggested. He said he had not concluded anything but had merely referred all of the information to the governor and told him to take legal advice.

Brodie proposed that the whole proceedings had been triggered on the basis of the letters and Webb’s evidence. “If that evidence turned out to be false then that would undermine the whole tribunal.” Brodie said.