Najan Christopher, David Archer Jr., and Dawn Smith
From left are former International Affairs Secretariat Director Najan Christopher, Deputy Governor David Archer Jr., and Attorney General Dawn Smith. (Photos: PROVIDED)

The prosecution’s first witness was Deputy Governor David Archer Jr.

Wearing a pinstripe suit with a red handkerchief in his breast pocket, Mr. Archer took the stand last week in Magistrates’ Court as the trial of former International Affairs Secretariat Director Najan Christopher got under way.

Ms. Christopher — who watched from behind a clear barrier in the defendant’s dock — is accused of sending an unauthorised diplomatic note to request diplomatic immunity for then-premier Andrew Fahie shortly after his Miami arrest on drug and money-laundering conspiracy charges on April 28, 2022.

She has denied wrongdoing since she was charged in October 2022. As her trial started on May 21, she pleaded not guilty to two charges: breach of trust by a public officer and false assumption of authority.

During the two days of testimony that followed, the prosecution and defence cases both began to take shape before the trial was adjourned to July.

Director of Public Prosecutions Tiffany Scatliffe-Esprit used the testimony to suggest that Ms. Christopher had sent the diplomatic note against the advice of senior public officers including Attorney General Dawn Smith, who also testified last week.

But during cross-examination, Jamaica-based defence attorney Terrence Williams — himself a former Virgin Islands DPP who once supervised Ms. Scatliffe-Esprit — painted a picture of Ms. Christopher as an experienced public officer who did her best to carry out her responsibilities during a chaotic period that followed the unprecedented arrest of a VI premier.

Diplomatic note

Last week’s proceedings took place before Magistrate Khadeen Palmer in the court’s newly opened facilities at the former Clarence Thomas Limited building in Pasea Estate.

Much of the testimony centred around the diplomatic note, which was printed on letterhead from the Office of the Premier and carried the stamp of the territory’s International Affairs Secretariat.

On May 3, 2022 — five days after Mr. Fahie’s arrest — the note was dispatched to the United States Office of International Affairs.

The next day, Mr. Fahie’s Miami defence attorney, Theresa Van Vliet, filed the note in a Miami court as part of an attempt to invoke head-of-government immunity.

Ms. Van Vliet argued at the time that Mr. Fahie was immune from arrest and detention in the US by virtue of his position as VI premier. The note made a similar argument.

“The Office of the Premier of the Virgin Islands hereby further confirms that it is the official position of the government of the Virgin Islands that the Honourable Andrew A. Fahie, as the most senior member of the Cabinet, holds high ranking office in the Virgin Islands and on that basis immunity as recognised by international and domestic law, akin to heads-of-government immunity,” the note stated.

It added that Mr. Fahie had such immunity at the time of his arrest and that he had not waived it. Finally, the note requested Mr. Fahie’s “immediate and unconditional release” and his “immediate return and free passage” back to the territory.

‘Rogue public officer’

Back in the VI, however, then-acting premier Dr. Natalio “Sowande” Wheatley alleged on May 4, 2022, that the diplomatic note had been sent by a “rogue public officer” without his knowledge or the knowledge of then-Premier’s Office permanent secretary Dr. Carolyn O’Neal-Morton.

Dr. Wheatley added at the time that the note did not represent the VI government’s official position, and he said that Dr. O’Neal-Morton was working with Mr. Archer to investigate the matter.

The following week, however, Dr. Wheatley confirmed that Ms. Christopher and Dr. O’Neal-Morton had both been sent on leave — a move that Dr. O’Neal-Morton subsequently contested in court.

In October 2022, Ms. Christopher was arrested and charged with breach of trust by a public officer and false assumption of authority in connection with the diplomatic note, police said at the time.

First day of trial

During the first day of Ms. Christopher’s trial last week, the DPP quizzed Mr. Archer about topics including the note, the concept of diplomatic immunity, and his interactions with Dr. O’Neal-Morton in the days following Mr. Fahie’s arrest.

In response to her questioning, Mr. Archer said he met with Dr. O’Neal-Morton on April 28, 2022, and provided “advice.” Later, he testified, he also provided advice following further discussions regarding a request to seek legal support. He did not elaborate on his “advice” in court.

Ms. Scatliffe-Esprit also asked the deputy governor if the government has a policy in place to deal with a premier being imprisoned abroad.

Mr. Archer responded that an imprisoned premier would be unable to serve in their position, and action therefore would be needed to have someone else sit in the role.

Mr. Archer also testified that on May 4, 2022 — the day after the diplomatic note was sent —he advised the government’s deputy director of human resources to ask the Public Service Commission for the temporary removal of Ms. Christopher from her position.

He also provided the police commissioner with an account of the matter, he added.

A ‘hard worker’

During cross-examination, Mr. Williams questioned Mr. Archer at length. The defence attorney started by asking about Ms. Christopher’s record in the public service.

Mr. Archer acknowledged that prior to the incident she was known as a “highly regarded” staff member who was a “hard worker” with expertise in international affairs.

In response to further questions, Mr. Archer acknowledged that Mr. Fahie was still the premier when the diplomatic note was sent on May 3, 2022, and that he eventually learned that Mr. Fahie had instructed Ms. Christopher to send it.

Mr. Archer also confirmed that a premier who is travelling abroad can still give directions to his staff even though someone else would be acting in his position back in the VI.

Devolved responsibilities

Mr. Williams also questioned Mr. Archer — a previous director of human resources for the government — about certain international-affairs responsibilities devolved to the VI government under the 2007 Constitution.

Suggesting that “grey” areas exist surrounding these devolved responsibilities, Mr. Williams asked if it would be unfair to penalise a public officer for mistakes made while trying their best to navigate such ambiguity.

Mr. Archer responded, “If those areas are not clarified, yes.”

Additionally, the defence attorney asked Mr. Archer to explain diplomatic immunity — and later suggested that his description of the concept had been “woefully inadequate.”

Mr. Archer disputed that characterisation.

Later in the day, three employees from the government’s Department of Information Technology took the stand and testified about the government’s emailing system, digital security protocols, and other technical matters.

AG takes stand on day two

On the second day of the trial, on May 22, Attorney General Dawn Smith took the stand as a prosecution witness.

In response to questions from the DPP, Ms. Smith testified that on May 2, 2022 — four days after Mr. Fahie’s arrest — then-acting premier Dr. Wheatley asked to speak to her about Ms. Christopher.

As a result of that conversation, Ms. Smith said, she telephoned Ms. Christopher and explained her position that Mr. Fahie was not eligible for diplomatic immunity, in part because the VI is not a sovereign state.

According to subsequent WhatsApp messages read out during the trial last week, Ms. Smith later warned Ms. Christopher against involving herself in the matter and advised that a lawyer Ms. Christopher had referenced should be directed to the governor.

Ms. Scatliffe-Esprit also asked Ms. Smith about the usual procedure for requesting legal advice from the Attorney General Chambers.

Ms. Smith responded that the “authorised person” in a department or ministry — often a permanent secretary — typically sends correspondence to request such advice.

Dr. O’Neal-Morton was the permanent secretary in the Premier’s Office at the time, but Ms. Smith testified that she did not receive correspondence from her in relation to Mr. Fahie’s matter.

Cross-examination

Mr. Williams began his cross-examination by asking Ms. Smith if she is a specialist in international law, and she acknowledged that she is not.

Then the defence attorney covered similar ground as he had covered with Mr. Archer.

After a lengthy back-and-forth about diplomatic immunity, Mr. Williams asked Ms. Smith if her understanding of the concept was “incomplete” at the time that she advised Ms. Christopher.

Ms. Smith acknowledged that she did not have all the relevant facts in hand at the time. However, she pushed back against suggestions that Mr. Fahie was within his rights to explore diplomatic immunity.

In response to another question, she acknowledged that no policy was in place at the time to address the overseas arrest of a premier and that it would be understandable if there were differing approaches to such a crisis.

As the May 22 proceeding drew to a close, the trial was scheduled to continue on July 22 and 24.

 

Rushton Skinner contributed to this report.