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DPP dispute in open court but with few details

A legal dispute between the Director of the Department of Public Prosecutions and one of his deputies over an allegation of gross misconduct came before the Court of Appeal yesterday.

Larry Mussenden sought to overturn a decision by the Supreme Court that he had acted with “actual, presumed or apparent bias” after making complaints against Cindy Clarke, the deputy director.

Details of exactly what she stands accused of by Mr Mussenden remain unknown.

But the allegations are understood to involve papers filed by Ms Clarke in the Magistrates’ Court regarding a robbery case.

Ms Clarke has denied any misconduct.

Ben Adamson, for Mr Mussenden, said there was no evidence of bias and Mr Mussenden had a professional interest in the case, not a personal one.

He added that Assistant Justice John Riihiluoma had compared the matter to an allegation that the DPP was personally aggrieved but Mr Adamson said that was not the case.

Mr Adamson said: “The only party that was being allegedly defrauded or deceived is the department. There is nothing personal. To suggest there was personal deception is unhelpful.”

Mr Adamson also argued that Mr Justice Riihiluoma had used the wrong test to determine the issue of bias.

He said the Supreme Court had applied the standards used for judges of fact, whereas Mr Mussenden’s role had been more investigatory.

Mr Adamson told the Court of Appeal that the statutory framework required the DPP, as head of the department, to write up the complaint and meet with the subject of the complaint to determine if the matter should go to the Head of the Civil Service or be dismissed.

Mr Adamson also said that Mr Justice Riihiluoma had not addressed the element of “necessity” in his judgment.

He argued under the “detailed” statutory framework the DPP could not delegate his responsibility to look into complaints.

“We cannot tell the Governor to appoint a new head of department,” Mr Adamson added.

But Mark Pettingill, for Ms Clarke, said an Acting DPP could be appointed to deal with matters if there was a conflict of interest.

Mr Pettingill said: “What happens when the DPP is off island? What happens when the DPP is off ill? What happens when there is a blatant conflict?

“The answer is an Acting DPP is appointed.”

He said there was clearly an option for the DPP to delegate the matter, and in the circumstances of the case he should have done so.

Mr Pettingill argued Mr Mussenden had launched the complaint, which meant he could not hear the matter objectively.

He said: “I would suggest he has a vested interest in being right, in that he is making the accusation.”

The Appeal Panel said it would deliberate on the matter and release a decision at a later date.

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