The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE Court of Appeal has dashed the Crown's hopes of overturning a magistrate's decision to discharge a Haitian woman and her brother of criminal charges.

Appellate Justices Jon Isaacs, Stella Crane-Scott and Sir Michael Barnett ruled on Thursday that Magistrate Ambrose Armbrister’s discharging of Dahene and Geno Nonord remains “undisturbed”.

The appeal took some 437 days to come on for hearing, an “inexplicable” delay that contributed heavily to their lordships’ decision. And that was notwithstanding the fact that the judges’ said the appeal itself had “absolutely no prospect of success”.

However, the key reason for the appeal being shot down was because Magistrate Armbrister correctly discharged the pair because by the time he inherited the matter, the case was already part-heard, as the Crown had already closed its case when the matter was before his predecessor.

According to the ruling, on May 20, 2015, Ms Nonord, who was born in the Bahamas to Haitian parents Elisnor and Lumane Nonord, was charged before then-Magistrate Guillamena Archer-Minns (who is now a Supreme Court judge) with one count each of assaulting a police officer; threats of death; resisting arrest; disorderly behaviour in a police station; disorderly behaviour; obscene language;and obstruction.

Mr Nonord, meanwhile, was arraigned before Senior Magistrate Carolyn Vogt-Evans with one count of disorderly behaviour.

The matter stemmed from allegations that Ms Nonord and other members of the community where she lived off Gladstone Road “attacked” police officers when they went to execute a warrant for a man who lived on the same compound.

After their respective initial arraignments, Mr Nonord’s case was later transferred to then-Magistrate Archer-Minns’ court and was heard together with his sister’s case. However, there were a number of adjournments in the case. Witnesses were present on each occasion, but no evidence was taken due to requests for adjournments by the siblings' attorney that were acceded to by the court.

Then Magistrate Archer-Minns eventually ended up demitting office without ever hearing the case.

On December 12, 2016, the Nonord siblings were re-arraigned before then-Magistrate Constance Delancey on the charges, to which they pleaded not guilty. The Crown subsequently opened its case. By March 28, 2017, all of the Crown’s witnesses had given their evidence, and the prosecution consequently closed its case.

The siblings' attorney indicated his intention to make a no-case to answer submission, and the trial was adjourned to June 20, 2017 for the attorney to make the submissions in writing, and for Magistrate Delancey to rule. The former magistrate agreed to provide her handwritten notes of that day’s hearing to assist with the drafting of the no-case submissions, but the notes were never sent, despite the attorney making several requests for them.

As a result, the no-case submissions were never submitted, and Magistrate Delancey demitted office without completing the trial.

On June 20, 2017, the parties attended former Magistrate Delancey’s court thinking they were to appear before her in a bid to again request the notes from the previous hearings to complete their submissions. However, when they arrived at that court, they were directed to Deputy Chief Magistrate Andrew Forbes’ court, who informed them that his colleague had since demitted office and that the matter would be restarted.

However, Mr and Ms Nonord were not re-arraigned. The matter was then adjourned to August 8, 2017 for the parties to appear before Her Majesty’s Coroner Jeanine Weech-Gomez. On the adjourned date, Magistrate Weech-Gomez instructed the Nonord siblings to appear before Magistrate Ambrister on October 31, 2017 for trial. The matter was subsequently adjourned to January 9, 2018.

On that date, the Nonord’s attorney raised an issue of Magistrate Armbrister’s jurisdiction to hear the case on the basis that as the Crown had already closed its case before then-Magistrate Delancey, the matter was already part heard, and he could not hear the case. The Crown, meanwhile, submitted that Magistrate Armbrister could re-arraign the pair and start the case anew.

However, on March 23, 2018, Magistrate Armbrister discharged the siblings of all charges pursuant to Section 59(2) of the Criminal Procedure Code (CPC) for two reasons, that he had no jurisdiction to hear a magistrate’s part-heard complaint where the magistrate had demitted office, and the prosecutor’s attempt to proceed on the indictable offences on the old charge sheet amounted to an abuse of the court’s processes.

The Crown consequently appealed Magistrate Armbrister’s ruling on the grounds that the decision was unreasonable or could not be supported having regard to the evidence, and that under all the circumstances of the case, the decision was unsafe or unsatisfactory.

As Magistrate Armbrister’s decision was given on March 23, 2018, the Crown had until March 30 of that year to file an appeal. According to a June 11, 2019 affidavit by Inspector Monique Turnquest, a Notice of Appeal was filed on March 29, 2018. Inspector Turnquest asserted that the Nonord siblings were served with the Notice on May 31, 2018. However, their attorney said that on April 12, 2018, they were served with the Notice of Intention to Appeal filed in the Magistrate’s Court on March 29, 2018.

Nonetheless, the appellate judges said in their ruling that the Crown did not file a Notice of Appeal in the appellate court until May 31, 2018, roughly two months out of time. And over a year later on June 11 of this year, the Crown made an application for an extension of time in which to appeal.

The appellate judges noted that while the requirement of notice being given to the other party may have been satisfied for the Nonord siblings when they were served on May 31, 2018, there was no indication as to whether the Magistrate’s Court was served with the Crown’s Notice of Appeal in accordance with section 235(2) of the CPC.

Additionally, the judges said “time continues to run until an application for leave to extend the time for appealing is made”.

“The EOT application was not filed until June 11, 2019, 437 days out of time; and that is an inordinate period of time particularly when one is dealing with essentially summary matters which ought to proceed expeditiously to a conclusion,” their lordships said. “There was no explanation for this extraordinarily long period of delay. We found the delay in this case inordinate and inexplicable.”

Ultimately, the judges said they were “satisfied that the appeal had absolutely no prospect of success”, and said that given the “inordinate” length of the delay in bringing the appeal, the Crown’s EOT application “should be denied; and in the result, the discharge of (the Nonord siblings) remains undisturbed”.

The judges further noted: “The observation by the Magistrate that the practice of part-heard criminal cases being heard by other magistrates on the extant complaint lacking statutory underpinnings should stand as a salutary warning to those concerned with the due administration of justice.”

Akeira Martin represented the Nonord siblings on appeal. T’Shura Ambrose represented the Crown.