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Zacca heard on tape lecturing clerk

Turn it off: Sir Edward Zacca, the former president of the Bermuda Court of Appeals (File photograph)

The former president of Bermuda’s highest court told a clerk to turn off a court recording system so comments by judges could not be used by a woman who represented herself in a civil case, it has been alleged.

Sir Edward Zacca, who retired from the Court of Appeal in 2014 and was knighted the following year, was heard in a recently discovered recording of a June 2011 hearing to whisper to the clerk to switch off the recorder. He said: “Please turn off the thing.”

He added: “You have it on? ... she gets all these things that we’ve spoke of in the court. You’re not supposed to turn the thing on unless we ask you to.”

LeYoni Junos, the appellant in the case, said Sir Edward was aware at the time that she had complained to the Governor in November 2009 about his conduct towards her in earlier proceedings.

She added: “The importance of that is the context. He had sight of letters of complaint from 2009 which quoted things he said to me and he’s now saying he doesn’t want the hearing recorded.”

She claimed: “His rationale for shutting off the system was to prevent me from having a record of what he was saying to me. That has to be the reason.”

Sir Edward’s remarks were revealed after recordings, which he and former Supreme Court registrar Charlene Scott claimed did not exist and which police failed to find, were uncovered at the Judicial Department during an inquiry by the Information Commissioner’s Office.

A group of litigants involved in several separate civil cases joined forces and fought to get the audio files for more than seven years, at first to help them prepare for further court appearances. But the litigants, the Civil Justice Advocacy Group, were repeatedly denied access and Sir Edward and Ms Scott claimed in a joint public statement in July 2012 that appeal court hearings were not recorded.

All of the audio files requested by the litigants were later found during the ICO review, some on the primary recording system and all on a back-up system.

An earlier police investigation had concluded that the recordings did not exist.

Ms Junos said detectives failed to interview Sir Edward and accepted claims from Ms Scott and other staff at the Judicial Department that Court of Appeal sessions were not recorded.

Sir Richard Gozney, governor at the time, did not investigate the 2009 complaint Ms Junos made about the judge and Sir Austin Ward, another member of the appeal court panel.

She filed the grievance because of what she felt was the judges’ contemptuous behaviour towards her in court.

She discovered two years later, in 2011, that the president had called her a “crazy lady” and “stupid woman” under his breath during one hearing — remarks also captured on the court recording system.

Audio of the insults was made public, including on YouTube, but did not spark action from the Governor, who is responsible under the Constitution for ensuring the independence and integrity of judges and the legal system. Ms Junos said if Government House had dealt with her 2009 complaint “perhaps he wouldn’t have shut off the recording in 2011 and we wouldn’t have gone through this”.

The Bermuda Police Service refused to comment on calls by Ms Junos and the CJAG for the criminal investigation to be reopened in light of the discovery of the audio files.

A police spokesman said the recordings were provided to the complainants under public access to information.

He added: “In 2014, we conducted a full investigation into this matter, whereby we interviewed all the aggrieved persons and all relevant staff within the courts that manage these matters. The BPS recorded statements from these public officials to the effect that no recordings existed for the court sessions in question. This was also further tested by the investigators with the court IT department.

“The complainants in the case made specific criminal allegations against members of the judiciary and, with the information in our possession at the time, we were unable to substantiate these allegations, namely that there had been an attempt to pervert the course of justice by members of the judiciary.”

The spokesman added that the case was dropped because the allegations could not be substantiated.

He said: “We have been made aware of the existence of back-up recordings that were found as a result of this most recent Pati application, and since the BPS is not the record holder for these matters, we will defer comment to that authority for comment.”

The spokesman added: “Our response will stand on its own at this juncture and we have nothing more to add on the subject.”

Alison Crocket, the Deputy Governor, said Sir Richard said at the time that because the complaint was “subject to Court of Appeal proceedings”, he could not comment.

She added: “The Governor also understood that recordings were not available for cases in the Court of Appeal in Bermuda and that only the opening of the case and judgments were digitally recorded. This was, he believed, also usual practice in UK courts.”

Ms Crocket added: “It was our belief that we had no reason to doubt the integrity of the court officials. I’m assuming the complainants, now furnished with the tapes, will be taking legal advice on next steps and we will, of course, be glad to be of any assistance we can, if asked, although I’m not sure what we could add.”

Neither Sir Edward nor Ms Scott, who stepped down as registrar in 2016, could be reached for comment.

• Note: This article has been amended to make clear that some of the audio files found during the ICO review were on the court’s primary recording system and all were on the back-up system