Omar Archer v Commissioner of Police

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Mr. Justice Isaacs, JA,,Sir Michael Barnett JA,
• Judgment Date: 19 March 2019
• Neutral Citation: BS 2019 CA 67
• Docket Number: MCCrApp. No. 140 of 2017
• Date: 19 March 2019

COMMONWEALTH OF THE BAHAMAS

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Isaacs, JA

The Honourable Mr. Justice Jones, JA

The Honourable Sir Michael Barnett, JA

MCCrApp. No. 140 of 2017

Between

Omar Archer

Appellant

and

Commissioner of Police

Respondent

APPEARANCES:

Mr. Frederick Smith, QC, with Ms. Akeira Martin, Counsel for the Appellant

Mr. Francis Wilson, with Mr. Timothy Bailey, Counsel for the Respondent

Bain v The Queen (New Zealand) [2009] UKPC 4 followed

R v Daniel [1977] Q.B. 364 considered

R v Gohil [2018] EWCA Crim 140 considered

R v Grantham [1969] 2 Q,B. 574

R v Henry [2018] 5 LRC 54 considered

R v Yasain [2016] QB 146 considered

Smith v Regina [2015] 1 BHS J 12 applied

Taylor v. Lawrence (2003) QB 528 considered

Vidale v Mayor, Alderman and Citizens of Port of Spain [1968] 13 WIR 299 considered

Criminal Appeal — Strike out — Jurisdiction of the Supreme Court — Whether the Supreme Court has jurisdiction to reinstate an appeal struck out for want of prosecution

The appellant was convicted of threats of harm by a magistrate and he filed a Notice of Appeal in the Supreme Court appealing his conviction and sentence. When the appeal came for hearing, the appellant nor his counsel appeared at the hearing. The appeal was therefore dismissed for want of prosecution. The appellant then applied to have matter reinstated. The matter was heard and the application was refused on the ground that there was no jurisdiction to reinstate an appeal that had been dismissed, even for want of prosecution on the non-appearance of the appellant or his counsel. The appellant appeals that decision. The question as to “whether the Supreme Court has jurisdiction to reinstate an appeal struck out for want of prosecution” was certified as one of public importance.

Held:

appeal allowed; matter remitted to the Supreme Court for determination.

In its' appellate jurisdiction, the Supreme Court has all of the powers given to it at common law as a superior court of record. This in my judgment includes all of the inherent and implicit powers given to a superior court of record as set out in the cases referred to in this judgment. That includes the power, when it is a final appellate court, to reopen an appeal.

Whether to restore an appeal is the exercise of discretion. 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 and that the appeal was dismissed; there is no suggestion that the appeal is wholly without merit; if the appeal is not restored the appellant 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; the appellant 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.

Like all judicial discretion it must be exercised to achieve fairness. That is the business of the courts. The principle is that unless the court has pronounced a judgment upon the merits or by consent, it is to exercise its powers so as to achieve a proper adjudication of matter before it on the merits of the case.

Delivered by The Honourable Sir Michael Barnett JA,

1 . This is an appeal from the decision of a judge of the Supreme Court refusing to reinstate an appeal from a Magistrates Court which was struck out when the appellant did not appear on the date fixed for the hearing of the appeal. The Chief Justice, who was the judge who heard the application to reinstate, refused to do so based on the ground that he had no jurisdiction to reinstate an appeal that had been dismissed, even for want of prosecution on the non-appearance of the appellant or his counsel.

The Facts

2 . The appellant was convicted of threats of harm by a magistrate.

3 . On the 18 April, 2017 he filed a Notice of Appeal in the Supreme Court appealing his conviction and sentence. The appeal came for hearing before the then Chief Justice on the 16 May, 2017. Neither the appellant nor his counsel appeared at the hearing. The appeal was dismissed.

4 . Unfortunately, we have no record of what actually transpired at that hearing and the basis upon which the court was satisfied that the appellant and his counsel were aware of the hearing and decided to dismiss the appeal. It is unclear whether the Crown appeared on the 16 May, 2017 when the appeal was struck out.

5 . On the 23 May, 2017, a week after the appeal had been struck out the appellant applied by summons to the Chief Justice for an order reinstating his appeal which had been dismissed on account of his non-appearance. That application was supported by an affidavit of Martin Lundy an attorney in the firm that represented the appellant. That affidavit was in the following terms:

• 1. I am an Attorney-at-Law at the law firm of Messrs. Callenders & Co. (“Callenders”), the Attorneys of record for the Appellant herein. I assist Mr. Frederick R. M. Smith, QC, Senior Partner of the said Firm with primary carriage of these proceedings on behalf of Mr. Archer.

• 2. I swear this Affidavit in support of Mr. Archer's application to relist the instant appeal following its dismissal for want of prosecution on Tuesday, 16th May, 2017.

• 3. The facts to which I depose herein are within my personal knowledge save where otherwise stated and where otherwise stated, I set out the grounds and sources of my information which I verily believe to be true.

• 4. On 18 ^th April, 2017, Callenders filed a Notice of Appeal to commence the instant proceedings. Shortly thereafter, on 26 ^th April, 2017 Callenders received notice from the Supreme Court that Mr. Archer's appeal had been listed for hearing on 8 ^th May, 2017.

• 5. Callenders received the purported record for the Appeal on 28 ^th April, 2017. However, upon receipt of same, we noticed that the documents pertained to Mr. Archer's Constitutional Application regarding his criminal libel charges and not this instant appeal.

• 6. On 3 ^rd May, 2017, I received a call from Ms. Lightbourn from the Supreme Court Registry indicating that the Court was aware that it had issued the incorrect documents for Mr. Archer's appeal and confirming that a new date would be provided for the hearing of the Appeal. This date was 16 ^th May, 2017.

• 7. Later in the day, we were reminded that Mr. Smith, QC was scheduled to be before the Court of Appeal for a 3 day hearing beginning on 16 ^th May, 2017 in Appeal No. 216 of 2016 The Hon. Jerome Fitzgerald et at v. Coalition to Protect Clifton Bay et al. Because of this, Mr. Smith, QC would be unavailable to attend Mr. Archer's appeal if scheduled on l6th May, 2017. A copy of the Court of Appeal List of Appeal for the month of May is exhibited hereto at “MAL -1”.

• 8. On the following day, 4 ^th May, 2017, I telephoned Ms. Lightbourn to make her aware that there would be a conflict in Mr. Smith's diary if Mr. Archer's appeal was heard on 16th June, 2017. Because of this, Ms. Lightbourn and I canvassed alternative dates and eventually agreed on 16 ^th June, 2017.

• 9. We promptly informed Mr. Smith, QC and Mr. Archer of the date for the hearing of the Appeal and diarized it accordingly. See copies of the relevant emails annexed hereto and marked exhibit “MAI2”.

• 10. On 9 ^th May, 2017, the clerical staff Callenders received the “Record of Appeal” from the Supreme Court. Unbeknownst to me, The Record contained a Notice of Hearing returnable on 16 ^th May, 2017 for the hearing of Mr. Archer's Appeal. Unfortunately, I was out of office when Callenders received the Record and even upon my return to office on 19 ^th May, 2017, I was not aware that Mr. Archer's appeal had been moved to 16 ^th May, 2017.

• 11. I first became aware that Mr. Archer's appeal was listed for 16 ^th May, 2017 when I received a call from Ms. Lightbourn indicating that the appeal has been struck-out for want of prosecution. Of course, much back-and-forth ensued between Ms. Lightbourn and me about when the Appeal was to be heard. As matters stand presently, Ms. Lightbourn insists that she told me of the 16 ^th May 2017 fixture and relies entirely on the Court's notice which Callenders received on 9 ^th May, 2017.

• 12. I then promptly wrote the Court explaining and apologizing for the inadvertent non-appearance by Callenders at the Appeal. I also telephoned Mr. Ambrose Armbrister, counsel for the Respondent herein, explaining the non-appearance and advising him of the fact that we would be taking which ever steps as are necessary to re-list Mr. Archer's Appeal. Because of this, I verily believe that the Respondent has not and will not be prejudiced by the re-listing of the Appeal.

• 13. Furthermore, I do not believe that the matter would have proceeded in any event on 16 ^th May, 2017 because, as at today's date, we have yet to receive the full transcript of’ the proceedings before the Magistrate's Court.

• 14. In view of the foregoing, I humbly request that the Court relist Mr. Archer's Appeal in the interest of the administration of justice.”

6 . The Crown did not file any affidavit in reply to Mr. Lundy's affidavit and on the face of the application the contents of that affidavit were not refuted.

7 . That application to reinstate came for hearing before the Chief Justice on the 12 June, 2017. At that hearing the Chief Justice questioned whether he had the jurisdiction to reinstate an appeal from the magistrate's court which he had already struck out.

8 . After counsel for the appellant stated the nature of the application, the Chief Justice immediately said:

“The only problem I have is jurisdiction”

9 . Mr. Frederick Smith Q.C., counsel for the appellant, argued that there was...