ST. JOHN'S, N.L. — Despite what defence lawyer Jerome Kennedy might think, RNC Const. Joe Smyth was not charged with obstructing justice simply because of who he is, the Crown told The Telegram Thursday.
Smyth, 41, was convicted earlier in the year of an obstruction charge for giving a motorcyclist a false traffic ticket in May 2017, but that conviction was overturned and a new trial ordered by the Newfoundland and Labrador Court of Appeal on Tuesday.
Justice Lois Hoegg, in a written decision with which two other judges concurred, sided with arguments made on appeal by Kennedy when it came to a lack of intent by Smyth to commit a crime.
Hoegg said the original trial judge had failed to consider the issue of intent and whether or not Smyth — who had acknowledged to investigators upon viewing the motorcyclist’s Go-Pro video footage that he had made a mistake in believing the driver had gone through a red light — willfully attempted to obstruct justice when he handed out the ticket.
Smyth had been investigating reports of an orange motorcycle travelling at speeds up to 200 km/h in the St. John’s area for about a month when he received information on May 12, 2017 of an orange bike on Torbay Road. He headed in that direction, stopping for about 20 minutes along the way to issue another driver a speeding ticket.
Smyth located Sayad Husaini, who had previously been identified by other RNC officers as the driver of the orange Repsol in question, on Torbay Road. He pulled him over and issued him four different traffic tickets, including one for running a red light. Footage from Husaini’s Go-Pro camera later revealed the light had been green.
Husaini testified he believed Smyth had been out to get him, since he had gotten away from the police officer in a pursuit a month earlier. Smyth testified he had genuinely believed the light was red until he was shown the Go-Pro footage by an investigator with the Alberta Serious Incident Response Team (ASIRT), which had been called in to investigate. Smyth acknowledged to the investigator that he had made a mistake.
It was ASIRT that recommended the criminal charge be laid.
Prosecutor Lloyd Strickland, who is the province’s assistant director of public prosecutions, argued at trial that the timing of the lights and the heavy flow of traffic through the intersection would have made it highly unlikely for Smyth to honestly mistake the light for red.
Provincial court Judge Mike Madden agreed, determining it to be "inexplicable" that Smyth could have believed the light was red. The circumstances on the road that day would have left "any competent driver" to come to the conclusion that the light was green, he ruled. He gave Smyth a suspended sentence and a year of probation.
Overturning the conviction, Hoegg said evidence of the prospect of personal gain for Smyth or the absence of good faith is needed to find him guilty of obstruction.
“The judge's reasons respecting the colour of the light, without more, do not, in my view, equate to willfully obstructing justice by knowingly issuing a ticket for which there are no reasonable grounds."
Kennedy told The Telegram people contest traffic tickets every day and they don’t result in criminal charges.
“People argue in traffic court all the time that a police officer made a mistake or is lying or is out to get them, and sometimes the judge will accept the arguments,” he says. “What escalated (Husaini’s case) to the state it got to? Well, we believe there’s only one explanation, and that’s that it involved Const. Joe Smyth.”
Smyth was a member of then-premier Paul Davis's security detail on Easter Sunday in 2015 when he was sent to investigate tweets Mitchell's Brook resident Donald Dunphy had posted referring to government members. Smyth shot and killed Dunphy during an interaction at Dunphy's home, and was later cleared of wrongdoing after a public inquiry.
Dunphy’s death, the inquiry results and Smyth’s conviction on the unrelated obstruction charge have been emotional issues for many members of the public, with people voicing strong opinions on both sides. The same happened when his conviction was overturned this week.
Strickland said Smyth’s name had nothing to do with the decision to prosecute him for obstruction of justice.
“Mr. Smyth was charged and prosecuted because our office determined there was a reasonable likelihood of conviction based on our appreciation of the law,” he said. “I would remind that the charge was laid based on the results of an investigation conducted by the Alberta Serious Incident Response Team.
“In other words, contrary to Mr. Kennedy’s continued assertion, his client was not charged and prosecuted because his name happens to be Joseph Smyth.”
Kennedy said he’s not sure how the Crown will build a new case around the appeal determinations.
“The way I interpret it, there has to be something over and above what the Crown presented last time to show intent, and I don’t know what that could be,” Kennedy told The Telegram.
Strickland said the Crown, which argued on appeal that there was sufficient evidence to sustain Smyth’s conviction, is still reviewing the appeal decision and assessing whether or not it will proceed with another trial.
“We do respectfully disagree with the decision of the (appeal) court,” Strickland said. “But our ability to appeal the decision is limited because it was unanimous. Absent an appeal, that decision will guide the Crown and the courts in this province, including our assessment of the case against Joseph Smyth.”
Twitter: @tara_bradbury
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