Tuesday, December 15, 2009
Basi Virk in Courtroom 54, Dec. 15, 2009
By Robin Mathews
With considerably better humour than yesterday, argument continued today about the disclosure application focussed on yesterday. Mr. McCullough for the Defence opened the day by discussing the apparent disagreement concerning the process of coming (or failing to come) to disclosure.
Defence and presiding judge appeared to be of one mind about the differences (and - apparent - confusion) that occurred.
Ms. Winteringham for the Special Crown Prosecutorial team went through more documents and made a case for withholding disclosure. She said the Federal prosecutor's report on the wire-taps is available to the Defence. Essentially she argued that the materials were reviewed by more than one agency - one being a federal prosecutor.
Citing precedent, she asserted that application for disclosure was not to be "a fishing expedition" by Defence (in what might be a blind attempt to pull in anything possible and then have a look at it). She said also that, by precedent, material denied at one point might be disclosed at another. The Crown also holds that the application for disclosure of wire-tap materials is premature - before Defence files its Charter Application relating to the wire-tap processes.
In general, the Prosecution wishes to withhold materials sought.
For the Defence, Kevin McCullough made several points. Specifically, he argued that Defence is not on a fishing expedition but has said why the material sought is relevant - Defence seeks to know if material submitted from informers has been judged reliable, or if it is contradictory of valid evidence gathered elsewhere. Some materials that have been disclosed, he argued, have been presented by the Crown as believed to be reliable when it has not been. Information gathered from disclosure reached by impartial review would stand as a basis, where unreliable, for cross-examination in trial (quite apart form any Charter Application about the use of wire-tap).
He pointed, further, to the fact that almost all the reporting on Dave Basi was undertaken in relation to the Drug investigation (not the BC Rail Scandal), and - as Michael Bolton said in court and outside the courtroom - allegations in that matter were wholly false and all suspicions of Basi in the Drug investigation were erased.
Mr. McCullough argued, in addition, that materials gathered by informers need not be covered in a blanket way by informer privilege, because some of it may be released to Defence without any chance of identifying the informer.
The flow of argument is clear: Crown believes the materials sought need no further review as to the claims they make for it. The Defence is unsatisfied with the claims, sees a need to test impartially for relevance and accuracy, and believes that Madam Justice Elizabeth Bennett rejected the Crown as decider of relevance and named herself, as judge, as final arbitrar of the use to be made of materials applied for by Defence - as to relevance and informer privilege.
Essentially, Defence is asking Madam Justice Anne MacKenzie to review the materials and to make findings as requested. The Crown holds review by her is unnecessary.
What Madam Justice Anne MacKenzie decides - that will illuminate her attitude to the case as a whole. There is no doubt she wishes (as all in the matter have claimed they also wish) to bring the matter to trial without delay. She must decide whether denying the Defense the review they request will speed the trial without, in fact, doing serious damage to the (fair) way in which they may conduct defence of their clients. (Defence claims it will be disabled in that respect unless the review is undertaken.)
Her general demeanour, as I observed it yesterday, suggested she would give short shrift to the wishes of the Defence. Today she appeared to be a great deal more serious about the terms of the Defence application. At ten in the morning of December 18 we will learn her final position.
Why not just go ahead and call Ms. Winteringham the Special Prosecutor and give Wild Bill the title of "Oh So" Special Prosecutor who can make special appearance or Oh So Extra Special manipulations of the (in)Judicial Process.
"Justice Elizabeth Bennett rejected the Crown as decider of relevance and named herself, as judge, as final arbitrar of the use to be made of materials applied for by Defence - as to relevance and informer privilege."
How logical, the very idea that the Crown should be arbiter of what evidence is relevant is absurd on its face. If that were the case why not dispense with the judge entirely and let Wild Bill or his designated representative sit in the big high chair and operate the gavel......jeez.
As usual excellent coverage Robin, I don't know what the 13 of us who care about this would do without you. If the forces of greed and evil succeed in having this trial moved to Victoria maybe our cult should take up a collection and sponsor a working holiday for Robin while we put him and Mrs. Matthews up at the Empress for the duration of the trial.........unless there is somehwhere else they prefer or is more conveniently located in relation to the court house.
It sounds like this blog is favouring the Defense and not the Crown.
When I say Crown I don't mean the BC Liberals
I don't think it is time for a poll at all. I am in support of getting to the truth about what has transpired with the sale of BC Rail.
It has been more than half a decade and the people who owned the railway, the Citizens of BC have yet to learn how their railway was sold. We have yet to see the contract nor have we seen the correspondence leading up to the sale of our money-making railway that Campbell promised not to sell. Campbell Inc. acts/acted as if BC Rail was his to sell. On top of that, he sold it for about half of what it was worth. We want to know how this happened?
Thank you for saying that ... I've been at a loss for words, wondering why the Anons can't
can't type their questions into the search box (top of this page, left side) and get their answers (and a lot more ...).
If you are going to come to the site more than once, will you please assign yourself a name by clicking "name" instead of "anonymous"?
You will still be anonymous to us except that we will be able to identify you by whatever handle you decide to use here. It gives people a chance to get to know you by your postings in total, and not individually. After-all, believe it or not, my name is not really SharingIsGood.
Once again, S.i.G., thank you for what you just said.
There are no RULES on this site (except for civil content) but I do appreciate it when people take on a name.
It doesn't matter to me what the name is.
What does matter to me is knowing whether I'm hearing from one person 10 times, so that we can build up an understanding ...
whether I'm talking to 10 different people on a one-time basis, which is a whole other approach.
"When I say Crown I don't mean the BC Liberals"
The problem is that to those of us that are paying attention to this miscarriage of justice - the "Crown" appears to be representing the BC Liberals rather than the people of BC, which IS THE MANDATE OF THE CROWN!
The whole idea of appointing a "special prosecutor" is to keep the investigation/prosecution at arms length from political considerations including, especially, the sitting government. It isn't to provide legal representation to defend Gordon Campbell and his cronies from allegations of fraud, mis-use of power and other criminal offenses against the people they are elected to serve!
First let's have the facts on the table, because so far they've all been shrouded in mystery where only the Crown and Defense lawyers have seen most of the documents.... although with Secret Witnesses the Defense will have to take their testimony on FAITH as someone here has written.
There's plenty of wire tap evidence that needs to see the light of day, and for the BC Liberals they don't have a clue of what they did say, nor how much was recorded by the RCMP.
All of it will be very damaging to the BC Liberals, make no mistake about it.
Bill Tieleman keeps using the word "Bombshell" in his coverage of the pre-trial sessions, so far, and what the Crown is about to unleash will be the ammunition dump.
Then the public can after the politicians, lock stock and barrel.
For starters, you don't have to call me 6:48 because I am not Anonomous - get it!
Then as to "and for the BC Liberals they don't have a clue of what they did say"
They know EXACTLY what they said and did, but because of their obfuscastion, no one else does......get it!
Links to this post: