23 years wait for justice - Appeal Court upholds 1992 conviction but drastically reduces fine and orders State to repay
It has taken 23 years for an appeal against convictions for breaching the Customs Act to be finally aired in the local courts, leaving some senior members of the legal community embarrassed and upset at what is being offered to Jamaicans as a justice system.
Among those condemning the system was attorney-at-law Michael Lorne, who said such a long delay should not be condoned in any quarter of the justice system, and there should be a guarantee that it would never happen again.
According to Lorne, the long delay in deciding on the appeal was "onerous and over-bearing on any appellant" and could be a reason for setting aside the conviction.
Paul Brown and Jeffrey Litwin, directors of Commercial Motors and Equipment Ltd at 77 Parkway, Kingston, gave verbal notice of appeal when they were convicted on February 28, 1992 of several breaches of the Customs Act.
The resident magistrate imposed fines on them which was three times the value of the items imported. Brown was fined a total of $3 million while Litwin was fined $3.5 million.
The two indicated that they would appeal but Litwin was deemed to have abandoned the process as he did not file his grounds of appeal within the specified time.
Brown pursued his appeal but was not successful against his conviction. However, the court found that the wrong fines were imposed and the men should have been fined $5,000 instead of the $200,0000 in excess of each count.
The court set aside the sentence imposed on Brown and ordered that the State should refund the excess amount that was paid by him as soon as possible. The amount to be refunded to Brown is approximately $2.5 million as the court did not order that he should receive interest on the amount paid.
Jacqueline Samuels Brown, QC, who represented the men, had challenged the convictions and sentences.
NO EVIDENCE OF VALUE
In its written judgment, handed down five years after a ruling was reserved, the Appeal Court said the Crown, quite rightly, conceded that there was no evidence of value of the goods and therefore the fines imposed had no basis.
"The exhibits in this case have apparently disappeared. There was delay in dispatching the record of proceedings to the Court of Appeal while the officers searched for the exhibits," the court said.
The court disclosed that the search proved fruitless as in 2009, the administrator in the Resident Magistrate's Court informed the Registrar of the Court of Appeal that: "Despite a search made for the documents, we are unable to locate same."
Among the missing exhibits was a cautioned statement, which Brown gave to the police.
The court said that although it was not able to examine the cautioned statement, its inability to do so did not affect the appeal, given the circumstances in the case.
In dismissing Brown's appeal against his conviction, the court said he gave an oral statement to the police, which was in the record of the proceedings before it, and that formed the basis of the conviction recorded against him.
The court said the resident magistrate acted on the evidence of Detective Sergeant Winston Lawrence, whom she believed.
It was the court's ruling that if the written statement was a repetition of the oral statement then it would be irrelevant.
Although the Appeal Court did not disclose the reason for reserving the judgment from January 22, 2010 until November this year, it stressed that: "There is no doubt that there has been serious delay in the disposition of this matter at every stage of the proceedings."