20 Feb 2010

“Shafted”

Well, the shit has hit the fan.

Sherman McNicolls got shafted up the nether hole by the Privy Council!!

From the judgment

The issues

There are four issues before the Board as follows:

  1. Was the JLSC acting ultra vires in preferring the charges?
  2. Was the JLSC acting unfairly and/or contrary to the rules of natural justice in preferring the charges?
  3. Are the charges unsustainable in fact and law?
  4. Was the JLSC’s conduct of the disciplinary process fundamentally unfair?
Shermie was a bit slippery, that is, he sought to shake off the charges by playing some rather incomprehensible word games, only to be caught out by the Privy Council judges.
The substance of the original allegation against the appellant [Shermie] was, …/ …that he refused to allow himself to be cross-examined. In the context of proceedings in which witness statements were tendered to the court in committal proceedings and admitted unless the defendant [Sharma] wished to cross-examine a particular witness, there is no distinction between a person who refuses to be cross-examined and a person who refuses to testify. The whole purpose of the appellant’s attendance on 5 March, as everyone knew, was to allow him to be cross-examined on behalf of the Chief Justice. The original allegation was that he refused to be cross-examined. He admits that he refused to testify. That admission is in substance an admission that he refused to allow himself to be cross-examined. Put another way, the allegation that he refused to allow himself to be cross-examined is in substance the same as an allegation that he refused to testify.
The judges of the Privy Council further found that:
the appellant has a case to answer, first that he was guilty of misconduct in informing Mr Peterson as prosecutor that he would not give evidence and, secondly, that that misconduct was causative of the criminal proceedings against the Chief Justice being brought to an end.
The Privy Council concluded by saying:
For the reasons given above all the grounds of appeal fail. The JLSC did not act ultra vires, the appellant was not treated in any relevant respect unfairly and the Board has every confidence that the disciplinary proceedings before an appropriate tribunal will be fair. The appellant has a case to answer but what decision the tribunal reaches will be a matter for it and not the Board. It follows that the appeal must be dismissed. Unless application is made to the contrary within 28 days of 17 February 2010 (in which case the issue will be determined on the basis of written submissions) the appellant must pay the JLSC’s costs of this appeal.
Now that the way is clear for a Tribunal, and the Privy Council has clearly refuted several of Shermie’s arguments, and made it clear that he was treated very fairly in each step of the process so far, it is likely that the Tribunal will succeed.

That being said, look out for a resignation coming soon. Shermie already has put out the word he has cancer, thus giving a ‘safe’ reason to depart with all benefits intact. I know I will get some criticism for this, but I have to wonder if he really has cancer. I guess I will never know.

Comments