Zahra Burton | Was Kartel ordered to pay restitution?
It's the question I asked as an investigative reporter as I tried to prepare for one of our shows for the TV news magazine, '18 Degrees North'. But the process to get the answer would illuminate for me the frustration of the Jamaican court system when it comes to accessing criminal case files.
In the past, I had simply gone to the appeal court and readily accessed the full criminal file of a case I was reporting on that had been finished many moons ago. But not this one - a member of my reporting team was told that though the high-profile case had ended and had resulted in a guilty verdict for the entertainer, the file was now with the judge, as the appeals process got under way, and we should write to the registrar for the specific information we needed, and at her discretion, she may share the information.
Similar instructions were given to me about another case as well that had already ended in the Kingston and St Andrew Parish Court. Unlike the Kartel case, this one was not being appealed. A clerk of that court, Dwight Bailey, wrote in an email to me, "Based on the information obtained from my superiors, the request to view the case file should be routed through the chief parish judge to the chief justice. Hope this information will be helpful."
Mr Bailey, as lovely and as courteous as you are, this information is not helpful. Why do I have to route my request for a file concerning a crime against the State through the chief parish judge or chief justice? The only thing this helps is to cement in our minds that transparency around the flow of information is still lacking in this country. Why do I have to 'know someone' who can sneak me the case file or rely on a defence attorney to share the information? That defence attorney may keep incomplete records or only share with me what he or she wants me to see.
As a reporter, I want to see what the judge sees, which is the copy of the file stored in the court. What if we want copies? I sometimes copy hundreds of pages. In the civil court where access to most case files are allowed, it costs me $10 per page to make copies. One defence attorney, on the other hand, recently quoted me $50 a page, after granting me, with his client's permission, access to a criminal case file.
How will we as journalists do our job, which is to serve as a check and balance on our democracy, including our judiciary, if we have limited or no access to criminal case files in the lower court? Surely, our judges are not beyond reproach as we saw in the recent case of Chief Parish Court Judge Judith Pusey, who imposed a six-month sentence for unlawful wounding on Nerice Samuels in 2015 without a trial, testimony, or lawyer, according to The Gleaner. Director of Public Prosecutions Paula Llewellyn was quoted in that article as saying, "I have received reports from my staff that it is unfortunate because this is not the first occasion from this particular court."
So, if this type of thing goes on in our judiciary, how can journalists be expected to know without access to criminal case files in the lower court? How can we report accurately on criminal cases when the information is 'fed' to us rather than us being allowed to independently review the information ourselves without interpretation or interference from court administrators or attorneys?
Why is it that reporters can observe public criminal trials in a courtroom but can't see the related case files in the lower court? And why, on the flip side, are we sometimes granted access to the same criminal files if they make it to the appeal court?
The Access to Information Act doesn't help either. Here's a response to my inquiry from the Court Management Services: "Whilst some court sittings are open to the public, the documents filed by parties to court cases are private and confidential ... . Section 5(7) provides that the act applies to 'official documents held in a registry or other office of a court, being documents that relate only to matters of an administrative nature'. The term 'administrative nature' would denote anything to do with the operations of an entity such as the staff, etc., and would have nothing to do with third-party documents that are filed containing evidence for cases. Therefore, if a request does not relate to an administrative matter, it cannot be accommodated."
So if not the ATI Act, is it on the discretion of court administrators that our system of access to information and transparent government depends when it comes to our criminal courts? The registrar gave me the answer as to whether Vybz Kartel was ordered to pay restitution. I can only HOPE for accurate reporting to the public, she is right. I was never able to check for myself.