THE TRIBUNE
Wednesday, April 12, 2017, PAGE 7
Omar Archer convicted over threats from page one
before Magistrate Derence Rolle-Davis to present his defence to the threats of harm complaint brought against him by Senior Assistant Commissioner of Police Leon Bethell. Archer Sr, who faced up to one month in prison over the charge, was sentenced to time served over that conviction. In 2015, he posted on his Facebook page that he had remembered being poked by the senior officer and his colleagues 10 years prior while studying at the University of the West Indies and that he would “pull” the senior policeman’s file. He also said the senior officer should adjust the surveillance cameras at his home in a better angle. Senior ACP Bethell is currently on pre-retirement leave from the Royal Bahamas Police Force. In yesterday’s proceedings, Archer Sr opted to remain silent and did not call any witnesses in his defence. Instead, his lead lawyer, Fred Smith, QC, made closing addresses concerning the case in question. “We submit the prosecution has failed to lead sufficient evidence to prove beyond a reasonable doubt that Archer is guilty of putting ACP Leon Bethell in fear of unlawful harm,” Mr Smith said. He argued that the prosecution must prove intent and not rely solely on the alleged act itself. “We say it beggars for the
OMAR Archer during a previous appearance at court. imagination for the ACP evidence from Mr Archer Bethell to have been put in that he made those statefear of unlawful harm for ments.” “In this day and age of cythe few words Omar Archer posted on his Facebook,” ber manipulation, they can put Omar’s face up and say he added. Mr Smith said he viewed he threatened people,” the the statement of the com- attorney said. Mr Smith referred to plainant and the words complained of and found Robinson 1993 Criminal that “those words by them- Law Reports as the standselves short of any actual ard concerning the threshthreatening, cannot in law, old for threats of harm, prove beyond reasonable which notes that “a threat doubt to have put Leon cannot be made by words alone, there must be conBethell in fear.” “ACP Leon Bethell is no duct.” Mr Smith argued that the ordinary person,” Mr Smith added. “He is a policeman words complained of were who has hundreds of other not threats or aggressive. Sgt Lakisia Moss, in repolicemen around him to protect him and is not the sponse, argued that Archer kind of character that is Sr should be held accounteasily threatened even by able for his actions. “Threats of harm is one words that were a direct of those offences that (is) threat.” He also argued that the subjective where the words post relied on is hearsay ev- of an individual can put idence because “there’s no someone in fear,” the police
prosecutor said. Sgt Moss said there was evidence to prove that threats of harm, contrary to Section 203 of the Penal Code, had been committed. She noted that the record of interview taken in police custody, which Archer Sr had an opportunity to peruse and revise if needed, had been signed by him and he acknowledged that he posted the statements on Facebook. “Notwithstanding former ACP Bethell was a law enforcement officer, he acknowledged posting that the cameras at his home needed adjusting. Yes, he’s a police officer but he has family and there’s an indication he would’ve visited the home.” “Just as the law protects any ordinary citizen, ACP Bethell was in his rights to feel threatened,” the pros-
ecutor argued, also relying on the aforementioned case authority that was cited by the accused’s side. The police prosecutor said it was Archer Sr’s alleged threat of death in Senior ACP Bethell’s presence that led to the incident he alluded to on his Facebook. She said the reference to that incident more than a decade ago proves intention required by the case of Robinson. Magistrate Rolle-Davis, after considering both submissions, found that the prosecution had proven its case beyond a reasonable doubt and convicted the accused of the charge of threats of harm. In a mitigating plea, Mr Smith urged the court not to impose a custodial sentence for a crime that carried the maximum penalty
of one month in jail. “I ask the court to take into account the nature of the offence and that it was conveyed by the internet. It was not direct in person to ACP Bethell,” Mr Smith said. He argued that his client had no prior convictions, was a married businessman who was supporting his child’s tertiary education. “The mere fact of his conviction will be a stain against his reputation which may plague him for years to come,” Mr Smith said. The lead lawyer also said that his client has already spent 24 collective days in custody in relation to the matter and another case. “We ask for time served and we say a custodial sentence is not appropriate and that it would not be fair to impose a monetary fine in addition,” Mr Smith argued. The magistrate ruled that Archer Sr would not have been in custody in the first place if he had appeared in court as mandated. However, he obliged Mr Smith’s request and sentenced Archer Sr to time served for the threats of harm conviction. He also noted that a release order had been given for a matter in Magistrate’s Court number 13 as the fine had been settled. The magistrate reiterated that the question of bail in Archer Sr’s other criminal matter, which is being constitutionally challenged, had to be decided by the Supreme Court. Archer Sr has the right to contest the conviction and sentence to the Court of Appeal.
ARCHER’S LAWYERS GIVEN ONE WEEK FOR SUPREME COURT BID By LAMECH JOHNSON Tribune Staff Reporter ljohnson@tribunemedia.net
LAWYERS for Omar Archer Sr were given one week to file a formal challenge in the Supreme Court concerning the constitutionality of the criminal libel charge against him. The 45-year-old Nassau Village resident appeared before Magistrate Derence Rolle-Davis yesterday for the continuation of the case in which he was expected to present a defence to the intentional libel charge against him regarding posts against a woman on the former political candidate’s Facebook page in April 2015.
The complainant denied the claims when the case started in November 2016, and the matter was adjourned to December 29, 2016 for Archer Sr to present his defence, but he did not appear resulting in a warrant of arrest being issued for him. When he was brought back to court a week ago, Archer Sr apologised for his non-appearance, which he attributed to a sprained ankle. However, he was still remanded to the Department of Correctional Services. When yesterday’s libel case was called, lead lawyer Fred Smith, QC, raised a constitutional issue. “Under Article 23 of the
Constitution, Mr Archer is guaranteed freedom of expression,” Mr Smith said, adding that this fact remained regardless of whether his posts are perceived to be offensive. “We submit that the laying of the charge, the prosecution and the entire proceedings thus far, him being called on to present his defence is a breach of his constitutional rights to impart ideas and information without interference,” Mr Smith added. Mr Smith said this was an opportunity for the magistrate, pursuant to Article 28(3) of the Constitution, to refer the matter to the Supreme Court for hearing. Citing the case authority
of Okuta v Attorney General & DPP of Kenya, Mr Smith argued that criminal libel is being repealed throughout former British colonies and the Commonwealth. He also told the judge that his colleague Magistrate Andrew Forbes adjourned a similar criminal libel case pending the Supreme Court’s determination on the issue. On the issue of Archer Sr remaining in custody, Mr Smith apologised for the accused’s absence from court on the day in question as he was medically indisposed. He said that his client should not have to remain remanded on a non-violent offence.
Police prosecutor Sgt Lakisia Moss said the issue of release from custody concerned the Supreme Court because that is the court that granted him bail. She noted that Archer Sr has already proven that he will not appear before the court, which is why a warrant was issued. The magistrate, after a
recess, said the question of bail had to be decided by the Supreme Court. On the constitutional issue raised, Mr Smith was given until April 18 to file the requisite documents concerning Archer Sr’s challenge. He will remain in custody until the Supreme Court decides otherwise.
DEATH NOTICE JACQUELINE SAINVILLE, 62
DAXON CHALLENGES CRIMINAL LIBEL CONSTITUTIONALITY By LAMECH JOHNSON Tribune Staff Reporter ljohnson@tribunemedia.net
A MOTION was filed in the Supreme Court yesterday challenging the constitutionality of criminal libel on the law books. Maria Daxon, a former police constable and vocal defender for the rights of police officers, appeared before Magistrate Andrew Forbes last month for the expected start of her summary trial concerning two counts of intentional libel concerning alleged statements written about Commissioner of Police Ellison Greenslade and Senior Assistant Commissioner of Police Leon Bethell. Fred Smith, QC, who appeared on Daxon’s behalf, said he intended to
file a motion in the Supreme Court challenging the intentional libel charge against his client. As a result, the matter was adjourned to November 29. According to the originating notice of motion filed in Supreme Court yesterday, Mr Smith and Maria Daxon are seeking relief from the court for a number of reasons, namely that the charge against the latter was a breach of her constitutional right to freedom of expression. They also seek an order that Magistrate Forbes dismiss the criminal libel proceedings. The motion also seeks relief for “an order of certiorari to quash the criminal libel proceedings as being unconstitutional, void, il-
legal and of no effect” and a further declaration that Section 315(2) of the Penal Code “provides offence of criminal intentional libel is unconstitutional.” The applicants also seek legal costs from the proceedings and damages for having been unconstitutionally subjected to the aforementioned proceedings. They ultimately seek “all such further orders, writs, relief, and/or directions as the court may consider appropriate for the purpose of securing the enforcement of the fundamental rights and freedoms to which Maria Daxon is entitled to under the Constitution.” It is alleged that Daxon, between August 26 and August 30, 2016 wrote defamatory statements about Commissioner Greenslade
and Senior ACP Bethell, which were likely “to injure and expose” the officers to “general hatred, contempt or ridicule.” In her initial arraignment last September, Daxon elected to have the matter heard in Magistrate’s Court and pleaded not guilty to the allegations. She was initially denied bail but a day later her lawyers Glendon Rolle and Wilver Deleveaux successfully applied for bail in the Supreme Court. Daxon remains on $100 bail.
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Died at Princess Margaret Hospital on Saturday, April 8th, 2017. She is survived by her husband, Albert Sainville; children, Therron (Elexia), Trenton (Diandra) and Brian; grandchildren, Taj, T’Shai and Brian Jr.; sister, Deidre Taylor; father-in-law, Alphonso Sainville; brothers-in-law, nieces, nephews, cousins and host of other relatives and friends. Funeral arrangements will be announced later.