By NICO SCAVELLA
Tribune Staff Reporter
THE Court of Appeal is currently mulling over whether to reinstate Ministry of Works Registrar Omar Archer’s appeal of his conviction for threatening a former assistant commissioner of police in a social media post some four years ago.
The appellate tribunal of Justices Jon Isaacs, Roy Jones and acting Justice Sir Michael Barnett reserved their decision concerning Mr Archer’s threats of harm conviction for what he said about former senior ACP Leon Bethel on his Facebook page in 2015.
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 to May 16, 2017 until he subsequently got a call from the Registry advising that Mr Archer’s appeal had been “struck out for want of prosecution”.
According to court documents, the matter was struck out for want of prosecution because Mr Archer and/or his attorneys did not show up on the date the matter was set to be heard.
As a result of the dismissal, Mr Archer’s legal representatives filed a summons to reinstate the appeal. That matter was heard by the Chief Justice 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.
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.
Furthermore, Mr Smith noted that given the size of the Bahamas’ legal community, it is common practice for attorneys to contact their colleagues if the issue of tardiness and/or absence arises in a matter, something he submitted is particularly the norm with his legal team given their law firm’s close proximity to the Supreme Court.
However, Mr Smith asserted that both the former chief justice and Crown counsel strayed from the usual practice to reach out to Mr Archer’s attorneys to inquire about their absences.
In the circumstances, Mr Smith submitted that it was “more than just and practicable” that the Supreme Court should have reinstated Mr Archer’s appeal. He further charged that it would be a “dark day” that the Supreme Court had no residual power to revisit something it “obviously” should revisit.
Sir Michael seemed to agree with that line of thinking, as he questioned how the chief justice’s decision would hold up against a situation where Mr Archer was involved in a traffic accident on the way to court, could not leave the scene as a result, called the police who in turn took their “sweet time” in arriving, and subsequently, for whatever reason, could not touch base with the Court to inform them of what happened.
He thus questioned if it is so that a Supreme Court judge is powerless to reinstate an appeal he/she dismissed for want of prosecution in the absence of a good reason for the appellant’s absence, or if there was a good reason proffered for his/her absence.