The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has ordered that a Supreme Court judge will determine whether Ministry of Works Registrar Omar Archer’s appeal of his conviction for threatening a former assistant commissioner of police in a social media post should be reinstated.

The appellate tribunal of Jon Isaacs, Roy Jones, and Sir Michael Barnett said the lower court will decide whether to revisit Mr Archer’s appeal of his threats of harm conviction for what he said about former Senior ACP Leon Bethel on his Facebook page in 2015.

In doing so, the appellate judges disagreed with the stance adopted by then Chief Justice Sir Hartman Longley—now the Court of Appeal’s president—that the Supreme Court did not have the requisite power to reopen an appeal it struck out for want of prosecution.

Sir Michael was thus of the view that the appellate court should itself reinstate Mr Archer’s appeal as it has “all the power” the Supreme Court had on the application to restore, and that not doing so would be an “inefficient use of valuable judicial time” and an “abdication” of their responsibilities.

However, Justices Isaacs and Jones dissented by asserting that the matter of whether Mr Archer’s appeal should be reinstated should be left up to a Supreme Court judge to determine after having heard “full submissions on the issue”.

Mr Archer had posted on his page that he remembered being poked by the senior officer and his colleagues 10 years earlier while studying at the University of the West Indies and that he would “pull” the senior policeman’s file.

At the time, Mr Archer also said the senior officer should adjust the surveillance cameras at his home in a better angle.

On April 11, 2017, after having spent 24 days in police custody in relation to that matter and another case, Mr Archer was convicted and sentenced to time served for the offence of threats of harm.

Mr Archer appealed the decision to the Supreme Court, having filed a notice of appeal on April 26, 2017. After doing so, Mr Archer’s legal representatives, Callenders & Co, received a notice from the Supreme Court that his appeal was set down for May 8, 2017.

However, an affidavit by Callenders & Co attorney Martin Lundy stated that there was a huge mix-up with the record of appeal; the wrong record was sent, and on May 3, 2017, Callenders & Co received a call from the Supreme Court registry which gave them a new date for the hearing as May 16, 2017.

That date was not convenient for counsel, so a new date was agreed: June 16, 2017.

However, on May 9, 2017, Callenders & Co received a record of appeal from the Supreme Court that contained a notice of hearing which showed that the date for Mr Archer’s appeal was still listed as May 16, 2017.

Mr Lundy, who had carriage of the case, was out of office until May 19, 2017, and was not aware that the appeal was moved back until he subsequently got a call from the court registry advising that Mr Archer’s appeal had been “struck out for want of prosecution”.

According to court documents, the matter was struck out because Mr Archer and/or his attorneys did not show up on the date the matter was set to be heard.

A week after the matter had been struck out, Mr Archer applied for an order reinstating his appeal via a summons to the chief justice. That matter was heard by Sir Hartman on June 12, 2017, who stated that the court was ‘functus officio’ (of no further official authority or legal effect) after striking the appeal out for want of prosecution, and thus had no jurisdiction/power to reinstate the appeal.

In fact, after Mr Archer’s attorney stated the nature of the appeal, Sir Hartman immediately said: “The only problem I have is jurisdiction.” However, Sir Hartman indicated that if he indeed had the necessary jurisdiction he would have exercised it in the manner requested by Mr Archer.

Mr Archer’s attorney Fred Smith, QC, subsequently appealed the former chief justice’s decision, questioning whether a Supreme Court judge has the power to reinstate an appeal that was dismissed for want of prosecution before a final order had been made in relation to same, and whether Mr Archer’s right to a fair hearing as provided under Article 20 of the Constitution was breached.

Furthermore, Mr Smith asserted that there was no evidence before the court at that time to suggest that Mr Archer’s and Mr Lundy’s absence was “intentional” or “contumelious”, as there was a misunderstanding between Mr Lundy and the registry about the dates for the hearing.

But in any event, Mr Smith asserted that Mr Archer’s and Mr Lundy’s appearance would not have mattered because the appeal would not have been able to proceed and be heard because Mr Archer’s attorneys did not have the full record of appeal from the Magistrate’s Court at the time.

The appellate judges ultimately concurred with Mr Smith’s submissions, with Sir Michael in particular asserting that “having regard to the myriad of circumstances that may present itself to the court, no inflexible rule can be adopted to fetter the exercise of the court’s inherent jurisdiction to reopen or reinstate an appeal which has been struck out.”

Conversely, Sir Michael said the primary issue is whether doing so is “necessary for the purposes of justice” or to ensure justice is done.

“Whether to restore an appeal is the exercise of discretion, Sir Michael said. “It is a balancing exercise which must be exercised unfettered and having regard to the facts of a particular case.

“The failure to attend was a mistake; the application to restore was made promptly after the mistake was discovered that the appeal was dismissed; there is no suggestion that the appeal is wholly without merit; if the appeal is not restored (Mr Archer) will be visited with a criminal record and criminal sanctions without having his right to appeal determined on its merits through no fault of his own but simply because of the fault of his counsel; (Mr Archer) will have no meaningful redress against his counsel for their mistake and the Crown or the public can assert no prejudice by having the appeal restored.”