A prison officer has had an appeal against his conviction for attempting to bring contraband into Westgate dismissed.

After Art Simons was found guilty in Magistrates’ Court, he filed an appeal before he could be sentenced, stating the trial judge had “erred in law applying the wrong burden of proof to the determination of a primary fact”.

However, Chief Justice Ian Kawaley dismissed the appeal after counsel representing Simons repeatedly failed to appear before the court.

According to a Supreme Court judgment, dated June 7, Mr Justice Kawaley said that Simons was charged in February 2015 of possessing cannabis and cannabis resin and attempting to introduce contraband into a prison. All the offences were said to have been committed in January of that year.

Magistrate Archibald Warner reportedly delivered his judgment in November 2016, but a Notice of Appeal was filed before a sentence could be imposed.

The Supreme Court judgment states a hearing was held but the lawyer representing Simons did not appear. The matter was adjourned, but Mr Justice Kawaley wrote that it appeared the lawyer was not notified of the new date.

Another hearing date was set, and Mr Simons counsel was notified. However, the lawyer responded that he was out of the jurisdiction on the new date.

Mr Justice Kawaley wrote that amendments causing the automatic stay of sentencing upon filing of a Notice of Appeal had caused “mischief, delay and, more significantly still, a dilution of the constitutional rights of complainants”.

He added: “In this particular case the charges are serious and there is a considerable public interest in expedition.

“An inability to bring to justice a prison officer who has been tried and convicted for smuggling drugs in to a prison for prisoners undermines the authority of the Commissioner of Prisons.”

Mr Justice Kawaley wrote he would dismiss the appeal without prejudice to the appellant, saying the appeal was not arguable on its face and the matter had not been dealt with in a diligent manner.

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