AB and XY originating motion
It’s Clarke v Mussenden at DPP
A legal row between two of the island’s top prosecutors is expected to go before the Court of Appeal today.
Larry Mussenden, the Director of the Department of Public Prosecutions, will appeal a judge’s decision regarding the way he handled a complaint of gross misconduct he made against one of his deputies, Cindy Clarke.
Ms Clarke alleged in a lawsuit filed in the Supreme Court in April that Mr Mussenden acted with “actual, presumed or apparent bias” and “in breach of natural justice” after making accusations against her.
She said he investigated the complaint against her himself, but should not have because he was the complainant. Assistant Justice John Riihiluoma ruled in Ms Clarke’s favour last month, finding that there was an “appearance of bias” on Mr Mussenden’s part. The DPP is expected to challenge that decision before the highest court on the island today.
The matter was cloaked in secrecy after lawyer Mark Pettingill, representing Ms Clarke, successfully applied to the Supreme Court on April 18 for the parties involved to remain anonymous. The case was listed in the Supreme Court causes book as being between “AB” and “XY” and was not listed at all on the public civil court list.
The Royal Gazette was unaware that hearings were held and was not in attendance for the court proceedings.
The newspaper has since obtained from the Supreme Court the notice of originating motion filed by Chancery Legal on behalf of Ms Clarke. Today’s hearing is expected to be held in the open, after the anonymity order made in the Supreme Court was quashed by the appeal court panel during a closed-doors hearing earlier this month.
The gross misconduct allegation against Ms Clarke is understood to involve papers filed by her in the Magistrates’ Court regarding a robbery case.
Details of exactly what she stands accused of by Mr Mussenden are not known.
The motion filed on behalf of Ms Clarke in the Supreme Court sought:
• An order ruling that Mr Mussenden acted with actual, presumed or apparent bias when he wrote to Ms Clarke inviting her to meet with him in order for him to determine whether the gross misconduct allegation should be dismissed or referred to the Head of the Civil Service
• An order ruling that the DPP acted in breach of natural justice and in contravention of Ms Clarke’s constitutional right to a fair hearing within a reasonable time
• An order quashing the disciplinary proceedings against Ms Clarke
• Any other relief
Mr Justice Riihiluoma issued a ruling on May 17, which was not made public, agreeing with Ms Clarke that there was the appearance of bias on the part of Mr Mussenden, because he had a personal interest in the misconduct allegation.
Mr Pettingill said yesterday: “This is an appeal by the DPP on a procedural issue. But any allegation of misconduct of any form is vehemently and unequivocally denied by our client.”
Mr Mussenden, who was represented by Ben Adamson of Conyers Dill & Pearman law firm in the Supreme Court, declined to comment.
Questions to Kathy Lynn Simmons, the Attorney-General, about the cost to the public purse of defending and appealing the lawsuit went unanswered by press time. Mr Mussenden is due to become a puisne judge next month, replacing Carlisle Greaves, who is retiring.
Ms Clarke is understood to have been shortlisted to replace him, along with fellow deputy director Carrington Mahoney.
Ms Clarke was passed over for the post of DPP three times, in 2013, 2014 and 2016.
In 2013 she was appointed to take over from work-permit holder Rory Field, subject to what George Fergusson, who was then the Governor, referred to as a “suggested transitional period”. But the appointment became “untenable”, according to Mr Fergusson, after what he said were “certain subsequent developments”.
Mr Field stayed on in the role and was then reappointed in 2014, prompting condemnation from politicians on both sides of Parliament about Government House’s failure to put a Bermudian in the job.
Mr Mussenden became DPP in 2016, after Mr Field resigned.
Ms Clarke is understood to be seconded to the Attorney-General’s Chambers at present.
The disciplinary proceedings against her are on hold until the outcome of these legal proceedings.
• It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.
• To view the Notice of Originating Motion, click on the PDF link under “Related Media”