When Premier Dr. Natalio “Sowande” Wheatley took the stand last week in Najan Christopher’s criminal trial, her attorney asked him about the letter that landed Ms. Christopher before the court.
The attorney wanted to know if Ms. Christopher was “trying her best” in a “bad situation” when she wrote the United States to request diplomatic immunity for then-premier Andrew Fahie shortly after his April 2022 arrest in Miami.
Dr. Wheatley replied, “She was certainly trying her best but was misguided.”
The exchange, which played to the heart of the government’s case against Ms. Christopher, came as defence attorney Terrence Williams cross-examined Dr. Wheatley, one of five prosecution witnesses who took the stand last week during the fourth day of Ms. Christopher’s trial before Magistrate Khadeen Palmer in the Magistrates’ Court.
Ms. Christopher, who watched from the defendant’s dock, is accused of sending the diplomatic note without authorisation five days after Mr. Fahie’s arrest on drug and money-laundering conspiracy charges.
But she has denied wrongdoing, and after her arrest in October 2022 she pleaded not guilty to both charges brought against her: breach of trust by a public officer and false assumption of authority.
During the ongoing trial, Director of Public Prosecutions Tiffany Scatliffe-Esprit has used witness testimony to suggest that Ms. Christopher sent the diplomatic note against the advice of senior public officers including Attorney General Dawn Smith, who took the stand in May after Deputy Governor David Archer Jr. testified.
But the defence has worked to paint a picture of Ms. Christopher — who was director of the International Affairs Secretariat at the time — as an experienced public officer who did her best to carry out her responsibilities during a chaotic period that followed the unprecedented arrest of a VI premier.
Last week, the trial resumed on July 22 via Zoom, and lawyers briefly debated witness testimony and other technicalities before the magistrate agreed to a defence request to continue in person when the trial resumed two days later.
Premier’s testimony
On July 24, Ms. Scatliffe-Esprit called Dr. Wheatley to the stand first and asked him about the period following Mr. Fahie’s arrest on April 28, 2022.
That evening, he testified, Ms. Christopher attended a meeting that included other public officers from the Premier’s Office, and she contributed to discussions about how to respond to the situation.
Dr. Wheatley said he also corresponded with Ms. Christopher by phone and WhatsApp in the days following the arrest.
Though Ms. Christopher pushed to seek advice from a Queen’s Counsel, he said, he was careful not to retain any lawyers on behalf of the government.
Instead, he sought to connect outside lawyers — who he said were recommended by various sources — to Mr. Fahie’s wife and “have nothing else to do with it,” he told the court.
Ms. Christopher, he said, also told him that she didn’t feel sufficiently involved in the matter and she wanted to be more involved.
“I told her not to do anything,” Dr. Wheatley testified.
The diplomatic note
The DPP also asked Dr. Wheatley to recall May 4, 2022, the day that Mr. Fahie’s Miami defence attorney, Theresa Van Vliet, filed the diplomatic note in a Miami court as part of an attempt to invoke head-of-government immunity.
Ms. Van Vliet argued at the time that Mr. Fahie was immune from arrest and detention in the US by virtue of his position as VI premier.
The diplomatic note — which was dated May 3, 2022, and carried the stamp of the International Affairs Secretariat — made a similar argument.
“The Office of the Premier of the Virgin Islands hereby further confirms that it is the official position of the government of the Virgin Islands that the Honourable Andrew A. Fahie, as the most senior member of the Cabinet, holds high ranking office in the Virgin Islands and on that basis immunity as recognised by international and domestic law, akin to heads-of-government immunity,” the note stated.
It added that Mr. Fahie had such immunity at the time of his arrest and that he had not waived it. Finally, the note requested Mr. Fahie’s “immediate and unconditional release” and his “immediate return and free passage” back to the territory.
The day the note was filed in court, Dr. Wheatley told the public it had been sent by a “rogue public officer” without his knowledge or the knowledge of then-Premier’s Office Permanent Secretary Dr. Carolyn O’Neal-Morton. Officials, he said at the time, were investigating.
Last week in court, he testified that he had learned about the diplomatic note the day it was filed, while he was taking part in a televised address announcing the formation of the National Unity Government alongside fellow House of Assembly members Marlon Penn and Mitch Turnbull.
Dr. Wheatley told the court that he didn’t know at the time who had sent the note, but he learned “later on” that Ms. Christopher was the sender.
‘I didn’t respond’
The DPP also asked Dr. Wheatley if he spoke to Ms. Christopher after he learned that she sent the note. He responded that she sent a WhatsApp message offering to rescind the note and asking if he approved.
“I didn’t respond,” he testified.
Additionally, he said, he was copied on an email Ms. Christopher sent to Dr. O’Neal-Morton explaining why she sent the note and taking responsibility.
He didn’t elaborate further on the contents of the email, but he testified that he later gave police copies of his WhatsApp conversations with Ms. Christopher.
Cross-examination
During cross-examination, Mr. Williams asked about one of the lawyers referred to Mr. Fahie’s wife. Dr. Wheatley acknowledged that the lawyer believed there could be an avenue for Mr. Fahie to claim immunity.
Given the lawyer’s view, Mr. Williams asked Dr. Wheatley if he was surprised that Mr. Fahie attempted to invoke immunity.
“No, it wouldn’t be a surprise,” Dr. Wheatley responded.
Near the end of the cross-examination, Mr. Williams asked Dr. Wheatley if he was saddened to see Ms. Christopher in her current situation.
“Yes,” the premier replied.
Prompted by the prosecutor, Dr. Wheatley then stated that she was “certainly trying her best but was misguided.”
Asked how she was misguided, the premier blamed her “loyalty” to Mr. Fahie.
Mr. Williams asked if he meant her loyalty specifically to Mr. Fahie or if it would be accurate to say her loyalty to the Office of the Premier.
“Yes,” Dr. Wheatley replied.
HR official
After Dr. Wheatley left the stand, the crown called Kaisa Penn, the government’s deputy director of human resources.
Responding to questions from the DPP, Ms. Penn testified that the Department of Human Resources had no policy in place to deal with the situation surrounding Mr. Fahie’s arrest.
She added that she didn’t know if the wider government had such a policy: One is in place for public officers, she said, but she was not aware of one for elected officials.
The DPP also asked her about May 4, 2022, the day the diplomatic note became public.
Ms. Penn said she was notified about Ms. Christopher’s actions that day and she advised other public officers how to handle the situation, showing them related legislation before leaving them to decide how to proceed.
After they decided the way forward, Ms. Penn said, she approved sending Ms. Christopher on administrative leave. Then on May 5, 2022, she gave notice to Ms. Christopher, she testified.
Crown counsel
After Ms. Penn left the stand, the DPP called Maya Berry, a principal crown counsel in the Attorney General Chambers.
In response to questions from Ms. Scatliffe-Esprit, Ms. Berry said she knew Ms. Christopher “very well” and had gone to high school with her.
Asked to recall May 1, 2022, Ms. Berry said she received a call around that time from Ms. Christopher and another public officer in the Premier’s Office.
They asked about Mr. Fahie’s situation, but she told them the discussion was an “unofficial conversation” and that she was not speaking in her official capacity at the Attorney General Chambers, Ms. Berry testified.
She then told Ms. Christopher that she believed Mr. Fahie was not eligible for immunity because he was premier of an overseas territory and not a head of state, she told the court.
“I just kept repeating that the BVI isn’t a state,” she testified.
Ms. Berry added that Ms. Christopher told her that Attorney General Dawn Smith had advised her to contact Fiona Forbes, the international relations counsel in the Attorney General Chambers, but she had called Ms. Berry instead.
Fahie lawyer request?
Ms. Berry also said that Ms. Christopher told her during the call that Mr. Fahie’s lawyer had advised her to write a letter stating that Mr. Fahie was the VI premier.
“I told her she could write a letter saying Andrew Fahie was the premier because that is a well-known and public fact, but I reiterated that the BVI is a territory and not a state,” Ms. Berry testified.
During cross-examination, Mr. Williams asked Ms. Berry if she would agree that the immunity issue transcends head-of-state immunity alone.
Ms. Berry replied that she couldn’t answer yes or no.
Mr. Williams also asked her if she could be mistaken in her recollection that Ms. Christopher described speaking with the attorney general before their call.
Ms. Berry responded that she was “pretty sure” Ms. Christopher said as much, but she acknowledged that she could be mistaken.
‘Shock and disbelief’
The next crown witness on the stand was Elvia Smith-Maduro, who was deputy secretary in the Premier’s Office at the time of Mr. Fahie’s arrest.
Asked about the reaction to Mr. Fahie’s arrest, Ms. Smith-Maduro described an atmosphere of “shock and disbelief” in the Premier’s Office.
The DPP also asked about Ms. Smith-Maduro’s role in the Premier’s Office at the time of the arrests given that Permanent Secretary Dr. O’Neal-Morton had travelled to Miami along with Mr. Fahie as part of a VI delegation attending the Seatrade Global Cruise Conference.
Ms. Smith-Maduro testified that she had assumed a “management role” in the office in Dr. O’Neal-Morton’s absence but had not been appointed to act as permanent secretary because Dr. O’Neal-Morton was gone for fewer than 14 days.
The DPP asked if this meant that civil servants in the office would report to her if necessary, and
Ms. Smith-Maduro answered in the affirmative.
In response to another question, she said she didn’t recall Ms. Christopher speaking to her about immunity.
Cross-examination
During cross-examination, Mr. Williams asked Ms. Smith-Maduro about a May 2, 2022, email from Ms. Van Vliet, Mr. Fahie’s Miami defence attorney, that he said included an attachment showing that Mr. Fahie planned to invoke immunity.
Ms. Smith-Maduro replied that she recalled seeing the email, but she forwarded it on to Ms. Christopher without reading the attachment.
Mr. Williams then asked if a senior public officer who passes something to a more junior officer would typically expect the junior officer to address the matter in their department.
“Typically,” Ms. Smith-Maduro replied.
‘It depends’
The defence attorney also asked if a public officer would need approval from the acting premier before following instructions from a premier who is travelling abroad.
“It depends,” she responded.
Then Mr. Williams returned to the topic of the forwarded email, asking Ms. Smith-Maduro if she forwarded it to Ms. Christopher because it concerned Ms. Christopher’s portfolio.
Ms. Smith-Maduro replied, “Yes, it concerned her portfolio, and I couldn’t respond.”
International counsel
The final prosecution witness on July 24 was Ms. Forbes, the international relations counsel in the Attorney General Chambers.
In response to questions from the DPP, Ms. Forbes said she did not communicate with Ms. Christopher between the date of Mr. Fahie’s arrest and the date the diplomatic note was sent on May 4, 2022.
She also testified that immunity is covered under her portfolio, but she didn’t receive any request for guidance on immunity.
The defence didn’t ask her any questions.
After Ms. Forbes’ testimony, the trial was adjourned with plans to resume Oct. 31 and Nov. 4.