The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal yesterday refused Omar Archer’s application for conditional leave to appeal a libel charge to the Privy Council, after ruling that his proposed appeal did not raise a “genuinely disputable issue”.

Archer was charged in 2015 with intentionally and unlawfully publishing defamatory material about a female journalist in April of that year.

Prosecutors said he uploaded a post on his Facebook page claiming the woman had tested positive for a sexually transmitted disease in an attempt to defame her character.

Archer was initially arraigned in September 2015, but was re-arraigned in November 2016 at which time he pleaded not guilty.

The trial began on November 28, 2016, and after the close of the prosecution’s case, a no-case submission was made and rejected by the magistrate.

When it was time for the defence to present its case, Archer’s new legal team, headed by Fred Smith, QC, “raised the constitutionality of the criminal libel law and requested a reference of the matter to the Supreme Court”, according to court documents.

After the magistrate agreed to the request, Archer filed a motion to seek relief inclusive of a declaration from the court stating, “the laying of the charge, prosecution, trial and liability of Archer to conviction and sentence to a fine and/or imprisonment for up to two years for the offence of intentional libel were void, illegal and of no effect,” as they breached his constitutional right to freedom of expression.

However, Justice Loren Klein dismissed Archer’s application after ruling that Section 315(2) of the Penal Code, “though admittedly a prima facie interference with Article 23(1) rights,” could not be considered unconstitutional as it was a “saved law within the meaning of Article 30(1)”.

Archer then appealed the judge’s decision in the Court of Appeal; however, the panel dismissed his appeal after ruling that they did not find that Section 315(2) of the Penal Code was unconstitutional or a breach of a person’s rights to freedom of expression.

This prompted Archer to seek conditional leave to appeal to the Privy Council. He argued that as his action was brought pursuant to Article 28 of the Constitution, leave should be granted to him “as of right”.

Nonetheless, Justices Sir Michael Barnett, Jon Isaacs and Carolita Bethell yesterday refused his application for conditional leave and ordered that Archer pay the costs of the intended respondents, to be taxed if not agreed.

“On an application for conditional leave to appeal, notwithstanding that the appeal is as of right the Court of Appeal must consider whether the proposed appeal raises a ‘genuinely disputable issue,’” Sir Michael stated. “The proposed appeal does not raise a genuine dispute as to the law and does not require the attention of the Privy Council.”

For his part, Justice Jon Isaacs also noted that Privy Council appeals fall into two categories.

“(These are) appeals pursuant to section 104 of the Constitution and appeals pursuant to section 23 of the Court of Appeal Act,” he explained. “The intended appeal falls into the former category and does not raise a genuinely disputable issue as the constitutionality of the law of criminal libel has already been decided by the Privy Council.”

Archer still has the right to apply to the Privy Council for special leave to appeal.