Archive for May, 2009
Net metering to boost alternative energy
(McCook Daiky Gazette): Look around your house. If you’re interested in "going green," Gov. Dave Heineman just gave you an extra room. Heineman and the Legislature just approved "net metering" for Nebraska, meaning people who generate their own electricity get full credit for the extra power they pump into the electrical grid. The "current" system — pardon the pun — involves some fees and provides only partial credit for power sold to utilities. Now, if you have your own wind turbine or solar panel, the power grid serves as your storage system, taking power you produce when you don’t need it, and giving it back when you do.
Levers grilled over allegations
(CNS): Facing Timothy Otty QC acting on behalf of the tribunal, Justice Priya Levers was grilled for some six hours yesterday (14 May) over the language and gestures she had used in her court room, as well as her criticisms of the Chief Justice and her other colleagues. Denying she had fallen short of the high standards expected of a judge, she admitted that in some cases she may have been over zealous. As Otty quizzed her word by word on the sample transcripts that he said had caused the chief justice concern, Levers sought to explain the circumstances and her choice of words in each case.
During the day’s questioning Levers revealed that she first became aware of the complaints when Chief Justice Anthony Smellie called her on 24 May 2008 to tell her he was sending over some material which he wanted her to calmly consider over the weekend. She said that he did not tell her what it was and they did not discuss it until the following Monday, but when she opened it and saw what it was she was very upset and afraid. She said it appeared that he believed she had a mindset of bias based on the allegations, without having discussed any of them with her.
Otty began his examination of the case against Levers by drawing her attention to the concerns that Smellie had outlined in that memo. He suggested that the transcript revealed she was biased against Jamaicans, hostile to women and may have influenced juries in favour of defendants through various means, including inappropriate comments or gestures, by making crown counsel look incompetent or by guiding them in her summing up against the victims.
He began by questioning her about comments she made about other judges during a trial at which the difficulty of listings had arisen and the pressures in the court house were given as the reason. Levers had, according to the transcripts, said that she did not understand the pressures given that half the judges were walking around the court drinking coffee. Otty suggested that it was an inappropriate remark to make about judicial colleagues in open court.
However, Levers, denied that it was and explained the remark. At the time, she said, she was upset, having just asked another judge to sit for her one afternoon while she took dialysis but that judge had said no as he was going scuba diving. She said she thought the chief justice had accepted her apology for saying those words and had understood it was a reaction to her being upset after she had been looking for assistance from her colleague who had refused.
Citing another example, Otty said she had made comment that had been perceived to be rude about judges not liking to sit on Friday afternoons, although she did not mind. Levers explained it was a universal observation about all judges, and because it was one of the afternoons where she did not have dialysis she was happy to sit. He then moved to complaints about the language she used in court during criminal cases, as recorded in the transcripts taken to the chief justice by the stenographer Karen Myren.
Otty took Levers through seven cases where the chief justice had suggested she used inappropriate language or behaviour. In one sentencing hearing, Otty suggested the transcript demonstrated a bias on her part against Jamaicans based on the fact she had asked irrelevant questions about the nationalities of the witnesses as well as the defendants. Levers said she was trying to get a full picture of the circumstances of everyone involved as the victim had been in a relationship with the defendant. When asked if she felt her questions could give rise to perceptions of bias against Jamaicans, Levers said, “…it would not cross my mind. I am Jamaican, my husband is Jamaican and my children are Jamaican.”
Otty then suggested the CJ had been very disturbed by her asking about the pending Caymanian status applicationand the moral character of the victim, and pressed her as to why she asked the questions. Levers said again she was trying to establish a full picture of a dysfunctional situation and she felt she had already reassured the CJ that she would no longer ask those kinds of questions. On reflection she should not have asked them, she said, but she did not believe they showed bias.
Levers was then questioned on the case where crown counsel had complained that the judge had gone to the scene of the crime before consulting with the attorneys involved and then raised a defence of planting that the defence itself had not. Levers explained her reasons for going there and the possible defence that was overlooked and denied that it was unconventional . “I visited the house as I did not know the area and the house had been described as being on stilts. I wanted to see it for myself before deciding to take the jury there.” Otty said she had been accused of inferring to the jury later in her summing up that a gun could have been planted. Although it was established she had not used the word "plant" in her description of the search, it was claimed by crown counsel that she alluded to a plant thereby influencing the jury, which she denied.
In another criminal case she was also accused of failing to present a balanced case in the summing up, saying the only way a jury could find the defendant guilty was if they were very, very sure of a point, and she admitted it was a possible misdirection.
Otty moved to another case where the judge had made comment on the lifestyle of a young victim in a defilement case and said the chief justice was concerned that it was irrelevant, but Levers insisted it was regarding context.
He then pointed to three other cases where she had given a more lenient sentence to a man than to two women accused of the same crime. Levers explained that in the case of the man there were mitigating circumstances.
Pressing her further on her exact wording and her intention, Otty took her through other cases where the chief justice had been concerned about her rolling her eyes or gesturing inappropriately, making jurors laugh or being disparaging to female victims, all of which she denied.
She also denied having said that she could not have done any more to help one defendant to court reporter Carol Rouse, who had accused her of a very biased summing up and then bragging about it. When it came to accusations from the same reporter made against her about gestures, she denied those too and said she could not think of any reason why she would say these things but that there had been other witness statements stating she did not. “All I can do is present the facts and call as many corroborating witness as I can,” she said. “I can not imagine why other people recall things differently from her.”
Moving through the complaints regarding the family courts, Levers denied the allegations in all cases, and as Otty went through complaints line by line about gestures or exact words that she had used, the judge sought to place the accusations in context or explain misperceptions. It had, however, been revealed earlier in the week that each of the four complaints from family court had come from litigants dissatisfied with the outcome of their cases.
As the day drew to a close, Otty raised her alleged criticisms of the chief justice recorded by her former secretary Elizabeth Webb. The tribunal’s QC questioned her about private correspondence including her last wishes in which, he said, she had been less than complimentary about another judge. She revealed that she did believe that Justice Dale Sanderson was hostile to her but not the chief justice. She noted that when it came to her funeral she was able to decide who she liked. She went on to say that it was unreasonable to use her private correspondence to friends, written when she was upset about the chief justice’s memo, as an example of criticism.
Answering accusations made in Webb’s statement about her speaking critically of her judicial colleagues, she asked Otty to be more specific about what she had supposedly said as it was difficult for her to answer such a general question. “It is very difficult unless I know what I am supposed to have said,” Levers added. “Such carte blanche allegations are so easy to make and so difficult for me to respond to.”
Justice Levers also categorically denied consulting a phsychic or a card reader or believing in them.
Otty is scheduled to continue his questioning tomorrow before Levers own QC, Stanley Brodie cross examines. The summing up statements on behalf of both the tribunal and Levers will be made on Monday before the fact finding element of the tribunal closes.
Cayman remains in grey area
(CNS):Cayman has not made the OECD’s White List following a key meeting yesterday. The introduction of the government’s Unilateral Tax Exchange Mechanism which was hoped would ensure removal from the greylist doesn’t appear to have found favour with the international organization’s Technical Committee. The decision has been greeted with dismay throughout the financial industry and particularly in the light of assurances received. CIFSA said it reaffirmed its advice to government that multiple bilateral or multilateral tax information exchange treaties be signed without delay.
In a letter to government last month the new Chair of the Cayman Islands Financial Service Authority (CIFSA) Anthony Travers told the Leader of Government Business that the unilateral mechanism would not be enough to move Cayman to the white list. “Those with experience of dealing with the OECD recognise that the principles of the 1997 OECD Harmful Tax Competition Initiative are being applied to Cayman albeit the process is described as procedural,” said Travers “CIFSA remains of the view that the OECD regardless of their political imperative are obliged to recognise bilateral and multi lateral exchange of information treaties. Accordingly CIFSA reaffirms its advice to government that multiple bilateral or multilateral tax information exchange treaties be signed without delay.”
He explained that it is all about the number and said CIFSA believes that the OECD will next apply a qualitative assessment of the treaty parties and so Cayman will need to have in place in excess of 12 bilateral or multilateral treaties with major G 20 Countries.
The government which issued a release yesterday offering a slightly more positive note regarding the meeting, said that progress had been made stating that the unilateral mechanism was “cleared to go forward,” by the Harmful Tax Practices Sub-committee for review by the Committee on Fiscal Affairs of the Organisation for Economic Cooperation and Development (OECD) which will review it next month.
The government said in the meantime Cayman’s bilateral negotiations were moving forward as the negotiating team is in Paris preparing for discussions today (15 May) with the Netherlands. Other countries in the negotiation programme include Australia, Canada, the Czech Republic, France, Spain and the UK.
Alden McLaughlin, Minister for International Financial Services Policy said the government continues to make solid progress on key initiatives to implement international standards in tax information exchange and said it would be providing details in the coming weeks.
“We have also been made aware of new proposals put forward by the OECD and the UK for Cayman to consider involving multilateral instruments and are seeking details, as OECD staffers are in meetings today until late evening Paris time. We must consider any and all opportunities to further our strategy of employing the most effective and efficient means of getting the result we need,” he added.
Meanwhile the London based Institute of Economic Affairs (IEA) has come out in support of jurisdictions such as Cayman and placed the blame for the global financial crisis on the shoulders of world governments and central bankers. In an open letter the IEA experts write: “No significant changes are needed to the regulatory environment surrounding hedge funds, short selling, offshore banks, private equity or tax havens.”
Travers said that hopefully the message was getting through that the Cayman Islands has a full and effective network of tax transparency treaties and is a totally transparent tax regime which has co-operated fully with the UK, EU and US Governments.
“We are astonished at the ill founded comparisons with the opaque regimes still made by Prime Minister Gordon Brown, Lord Wallace of Saltaire and Senator Levin. The truth of the matter is that the real reason for the unwarranted attacks on the Cayman Islands can have nothing whatsoever to do with tax evasion,” he said. “The concern of those politicians and the OECD can only relate to the increasingly high levels of tax in their respective countries, especially the 50% proposal in the UK. They know that there will be a stampede of individuals and companies attempting to escape their punitive taxes.”
Travers said that President Barack Obama would be better advised to focus his attention nearer to home in the Vice Presidents State, Delaware, where an office at 1209 North Orange Street, Wilmington, houses the grand total of 217,000 companies.
Obama has called out Ugland House on numerous occasions for having 18,000 companies registered there saying it must either be the biggest building in the world or the biggest tax scam.
See letter here: www.iea.org.uk
NS students’ discovery trip
(CNS): North Side Primary school Year 6 pupils saw snakes, gopher tortoises, ospreys, toads and alligators, and handled snakes, a tarantula, turtles, and were introduced to the Florida Snapping Turtle, whose name fits his appearance and his aggressive response to being disturbed, while on a school trip to St Petersburg, Florida. The children attended Boyd Hill Nature Preserve daily and were taught by George Heinrich, of Heinrich Ecological Services, and some of his colleagues.
There were some classroom sessions and lots of opportunities to put their learning into a real situation when they went out and about in the preserve. Keeping quiet enough not to scare the wildlife and vigilant enough not to miss some of the creatures who moved quickly and silently away at any sign of human life meant that the children were rewarded with sightings of the local wildlife. They were taught how to find clues leading to information about the animals that lived there – even when they were too elusive to be seen.
In a release, the school thanked the major sponsor for the trip, Rotary Central, which also paid for trip t-shirts, as well as other sponsors, including Maples and Calder, the Cayman Islands Development Bank, Cayman National Bank, CUC and Otis A/C. The money they so kindly donated was added to the internal fundraising total and allowed the children to go to Herpetology Camp for a week.
The small but motivated group of children, staff and parents had a great week and are now back in their North Side classroom putting their learning into a showcase, which will be held for parents, Education Department personnel and sponsors on the evening of 26 June. The children are also working on a presentation to be given to the Rotary Central Club as a thank you for their generous support. More details and photographs can be found on the school blog at www.nsnorthsideprimaryschool.blogspot.com
Cayman Islands Shipping Registry “white-listed”
According to a release from MACI, this MOU has been signed by 18 countries including Japan, Australia, New Zealand, China, Canada, Chile, Republic of Korea and the Russian Federation. Previously on the “Grey List”, MACI had worked arduously to achieve the top ranking by diligently upgrading and improving the calibre of its worldwide fleet of vessels.
“This is a great achievement for us, and, more so of our Safety and Survey Division, although the entire organisation contributed to this success,” said CEO Joel Walton. “Tokyo is one of the most important MOUs internationally, and brings further recognition to the high standing of the Cayman Islands Shipping Registry.” Cayman is already on the “White List” status under the Paris MOU, again in recognition of the quality of the fleet on its Register.
Cayman is part of the “Red Ensign” Group of British maritime administrations and is the flag-of-choice for the majority of the world’s mega-yachts. Established in 1903, when George Town was first established as a port of Registry, the historic Cayman Islands Shipping Registry today continues to carry on Cayman’s rich maritime tradition around the globe.
The Cayman Islands Shipping Registry is represented in nine locations in eight countries. In addition to the George Town Head Office, these are the European Regional Office in the UK, and representatives in London, Ft. Lauderdale, Monaco, Athens, Hong Kong, Singapore and Tokyo. This global network of services ensures CISR’s ability to serve its valued international clientele on a 24/7 basis.
Additionally, MACI is a signatory to agreements with various international classification societies delegated to enact on its behalf. These include: American Bureau of Shipping (U.S.);Det Norske Veritas (Norway); Bureau Veritas (Paris); Registro Italiano Navale (Italy); Nippon Kaiji Kyokai (Class NK, Japan); Germanisher Lloyd (Germany), and Lloyds Register (U.K.), all of which are members of the International Association of Classification Societies (IACS).
CUC power outage yesterday
(CNS): A CUC power outage that affected West Bay, parts of Georgetown and areas from Spotts into the Eastern districts due to a technical problem at the North Sound plant, CUC have said. The power went out at 2:39 pm yesterday but there was no damage to any equipment and CUC was able to restore power within two hours. The power firm apologizes to its customers for any inconvenience caused as a result of this outage.
Cayman heads to Chelsea
(CNS): Britain’s foremost horticultural event, the Chelsea Flower Show, will feature an exhibition by the Department of Tourism that showcases the Cayman Islands’ world-famous nature product above and below land. It has been designed by Andrew Guthrie of the Queen Elizabeth II Botanic Park and Stephen Hendry from Newington Nurseries in Oxfordshire, the same partnership that last year produced a silver medal award winning exhibition for the Cayman Islands’s first ever appearance at the Chelsea Flower Show (Left: 2008 exhibit "The Heritage Garden").
In announcing the exhibit, Tourism Minister Charles Clifford said, “The ‘Cayman Islands Undersea Reef Garden’ will be a stunning replica of the beautiful coral gardens found surrounding our islands through the use of artificial coral and plants that mimic underwater plant life.”
Following the loss of a major part of last year’s exhibit, Ghost and Banana orchids that were seized by Dutch customs officers on their way to London, no aspect of this year’s exhibit is being imported, though the DoT notes that the destination’s floral and natural product is core to the overall message that is being conveyed, alongside Cayman’s world-class dive product. Both Guthrie and Hendry will be in the delegation at the Chelsea Flower Show which is led by Don McDougall and his team from the Department of Tourism’s London-based office.
The Central Caribbean Marine Institute, which has its research centre on Little Cayman, will also be represented in the delegation by Peter Hillenbrand, Chairman of CCMI and owner of Southern Cross Club. With the environmental message being a top line discussion point for media attending the Chelsea Flower Show, Hillenbrand will be on hand to endorse the Cayman Islands’ marine conservation policy and other environmental initiatives such as the Cayman Islands Environmental Project for the Tourism Sector (CEPTS).
The Sister Islands will also enjoy profile at the show through the life-sized mural of Bloody Bay Wall, by underwater photographer Jim Hellemn, which is being used as a backdrop to the Cayman Islands.
Information about Cayman’s endemic wildlife, ranging from the Blue Iguanas to the butterflies of the Cayman Islands, will also be included in the promotional and press material.
The BBC will be broadcasting live form the Chelsea Flower show again this year and has already committed to several interviews at the Cayman Islands Undersea Reef Garden.
Don McDougall, regional manager, Europe for the Department of Tourism says: “The Chelsea Flower Show is a superb venue to meet a large number of our potential target market. It gives us an unrivalled opportunity to showcase the Cayman Islands to the 170,000 show visitors and everyone who watches it on television and reads about it in the national media”.
Legal action threatened between candidates
(CNS): A political sideshow over who said what on the Rooster call-in show Crosstalk concerning the academic qualifications of UDP George Town Candidate Ellio Solomon has taken a new turn, with Bodden Town independent candidate Sandra Catron issuing a cease and desist letter via email to UDP members Mark Scotland and Dwayne Seymour, and also to UDP leader McKeeva Bush, notifying them that if necessary she was prepared to take legal action.
This letter followed comments by Seymour on air that Catron had threatened to kill a woman and had stalked her former boss’s children.
While the UDP has said the party does not wish to comment at this time. Catron has issued a 1,000-word press release explaining her actions, which she also read out on Radio Cayman’s mid-morning talk show on 12 May.
Catron’s objections refer to a call into the show by Bodden Town candidate Dwayne Seymour, who said: “Sandra is a very shady person and people in the Cayman Islands need to know that she is a very shady person and it would be a shame for someone like Sandra to get in the House knowing that she has threatened to kill people, she has threatened to kill a woman already from Bodden Town and she has stalked her former boss’ children at their school, and she has also hacked into government websites.”
Catron’s release says, “Mr Mark Scotland, who was also in the studio, made background remarks to state that he had proof of this. I consider these comments to be highly offensive and also legally slanderous. As a result, I immediately contacted the owner of Rooster 101 as well as the host of the program to make my concerns known. Quite interestingly, CrossTalk host Austin Harris stated earlier in the program that ‘we do not allow slanderous statements on this show that are unproven’. Clearly this is a double standard that does not apply to all participants. He allowed no less than 3 persons to make slanderous and untrue commentary.”
Catron said she had been given legal advice that a cease and desist letter needed to be issued to the parties directly that made the defamatory remarks. Within 48 hours the UDP leader, Mark Scotland and Dwayne Seymour were all issued a cease and desist letter via e-mail.
“I can only speculate as to what specifically Mr Seymour’s comments were about. However these absolutely outrageous statements are hurtful on a personal and professional level and in fact have no basis. I have always advocated against violence towards women and children and consider these statements to be politically motivated,” Catron stated. She further said, “It is quite unfortunate that I have had to publicly respond to these matters at all. However, some persons would misinterpret a non-response as having some meaning to it.”
The 7May Crosstalk show started with a clarification by Solomon about his academic background and an exchange with a caller on air a week before. Following the 30 April show, in which it appeared that Solomon did not correct talk show host Austin Harris when he maintained that Solomon did have a bachelors degree, Catron, who is contesting the election in a different district to Solomon, filed an FOI request with the International College of the Cayman Islands to clarify, and was told that he did not finish the degree.
Solomon cited a CNS news article detailing how he had had to halt his studies because of the health of his daughter as a way of explanation, maintaining that he had never claimed to have a bachelors degree, and said he hoped that was an end of the matter. However, Catron called the show to “clarify the facts”, which sparked a continued exchange over Solomon’s academic qualifications and who was telling the truth about what was said. Following this, Seymour called into the show to make his staments.
Environmental protection needed now!
The current structure of environmental protection in the Cayman Islands is piecemeal and not adequate to meet the needs of this rapidly developing country. Environmental degradation does not respect the artificial boundaries set up by various agencies.
Consolidating the various enforcement responsibilities under one umbrella will maximize limited resources and approach environmental protection in a comprehensive manner which is necessary for such a small piece of real estate such as Cayman.
At present, environmental protection is currently split between several agencies having multiple and sometimes conflicting missions. The regulation of waste management comes under those who provide the service: Environmental Health and the Water Authority. This is like the fox guarding the henhouse. Government makes much of thedischarge of nutrients from a dolphin enclosure located in the North Sound, but is silent on nutrient discharges from their own facilities located on the North Sound. When asked by the press whether there might be a link between the well-fertilized green mat of algae growing along the shore and into to the North Sound, the possibility of there being a link between the activity at the nearby dump or wastewater plant, it was downplayed without the benefit of any monitoring reports to substantiate the claims.
The Planning Department has a critical role to play in ensuring sustainable development yet they have been operating without an updated Development Plan for more than ten years. The number of illegal, substandard dwellings without proper sanitation continues to increase, encouraged by the senseless provision that illegal structures are deemed legitimate after seven years if the Planning Department has failed to take notice within that period. The Water Authority continues to approve septic tanks discharging directly to a deep well, contrary to their own regulations set out twenty five years ago. Cayman’s flat topography prevents a blanket of smog from forming, but soot-stained buildings provide evidence of its presence. A recent article in the press regarding air quality issues related to CUC’s fuel made it clear that this issue is also being overlooked by regulators.
In addition to the fragmentation of environmental regulation, lax enforcement is also due in part to the cumbersome process written into the existing Laws and Regulations which can discourage timely enforcement actions to resolve issues before they have gone too far.
I propose the establishment of an “Environmental Protection Agency" which would be tasked with public education, enforcement, and publishing annual reports on established measures of environmental quality to track progress to evaluate and direct programs. The first step program would be a nation-wide assessment to evaluate the current situation and identify polluters. Environmental enforcement officers would work in the districts, on the ground, to educate the public regarding regulations and monitor compliance with such. Enforcement would start with a warning followed by citation with the option of paying a fine and/or prosecution. This approach would increase public awareness and support and address violations at an early stage before irreversible damage was done.
In addition, I propose working with the private sector for solutions to remove the existing garbage dump and develop a sustainable solid waste management program tailored to our community which would put into place policies following the priorities of reduction, reuse and recycling of wastes. There would be an immediate focus on diverting "wastes" that can be recycled and reused on the Island: landscape waste, tires, glass, and construction debris. There is no acceptable excuse for not implementing these most basic measures while talking about the problem for the past ten years. Solutions, using affordable technologies suited to a small island nation would be employed to bring reality closer to the hype about our pristine environment.
A healthy environment is necessary to sustain our health, our economy and our quality of life. It is irresponsible and unsustainable to allow the use of the land, water or air for a dumping ground with no account for the cost to our society. There is a growing number of Caymanians qualified in this area and more should be encouraged and supported in pursuing a career in this field. Environmental quality is one issue that affects every one of us every day. Let’s move forward in the way we manage it so that our children and theirs can flourish in it.
The time for talk is over; it is now time for action. On May 20, you the voters can take that action.
Derrington Bo Miller, is an independent candidate for George Town.
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 tothe 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 Justice Levers 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.