Sun | Oct 21, 2018

Laws of Eve | Four years to await trial is too long

Published:Monday | April 9, 2018 | 12:00 AM
Prison

Regular readers of this column, might recall that a few months ago, in commenting on the conviction of DJ Ninja Man coming eight years after he was charged, I asked: "How long is too long for an accused to await trial?"

For one accused person, Mervin Cameron, the Jamaican Full Court delivered a 123-page judgement on March 22, 2018, in which it unanimously concluded that four years was too long. It was declared that "the claimant's constitutional rights be tried within a reasonable time under Section 14 (3) of the Constitution has been violated".

Briefly, the facts in Cameron's case are that he was accused of committing two murders. Cameron, who had three previous convictions for illegal possession of firearm, shooting with intent, and receiving stolen goods, was charged in March 2013. There were several bail applications in the Parish Court, but he was not offered bail until September 2017.

Cameron's constitutional motion for a declaration that his right to a trial within a reasonable time, as guaranteed by Section 14 (3) of the Jamaican Charter of Fundamental Rights and Freedoms, was only filed after the preliminary enquiry had started, and remained in abeyance since October 2016. He asked the full court to order his immediate release.

 

Culture of complacency

 

After referring to several relevant cases on the question of delay, the judge in the leading judgement (although dissenting in relation to some issues) said, "[A] culture of complacency has taken root and that culture has been nourished by the view that it matters not how long it takes, as long as the defendant can meet the prosecution case, then it cannot be said that a fair trial is no longer possible". Citing the fact that, "Any judge who has been in the criminal courts in Jamaica, sees that there is no great urgency in getting matters tried on the date they are set." He went on to say that citizens "want a system that disposes of criminal cases within an acceptable time frame".

The three judges agreed that four questions had to be answered to determine whether the delay was unreasonable and breached the Constitution. The questions and the agreed positions follow:

- Is an unreasonable delay enquiry justified?

- The enquiry was justified, particularly as a preliminary enquiry had not been completed after more than four years.

- What is a reasonable time for the disposition of a case like this one?

Although no specific time line could be laid down, any reasonable time line has already been exceeded.

- How much of the delay that actually occurred counts against the state?

Even without the benefit of specific timelines, the State must accept responsibility for the delays in concluding the preliminary enquiry because the main reason the preliminary enquiry has been delayed is the absence of witnesses.

- Was the delay that counts against the state unreasonable?

It was.

The judges unanimously agreed that Cameron's constitutional right was breached, but only one judge was prepared to say that the trial should have been concluded within 24 months, and that failure to do so meant that the matter should be stayed. The majority decision was that Cameron's bail amount should be reduced to $300,000, he should recover damages for Constitutional redress (to be assessed), the preliminary enquiry must be determined by May 30, 2018, and the trial must commence before April 2019 or it will be stayed.

This judgement is certainly a step in the right direction, but did it go far enough? You can decide.

- Sherry Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.