Sat | Aug 19, 2017

Ex prisoner fighting to survive

Published:Thursday | May 12, 2016 | 5:00 AMBarbara Gayle

A judge's error during summation to a jury has resulted in freedom for 35-year-old electrician Tino Jackson, who is now trying to put his life back together after spending four years in prison.

Although Jackson is happy to be a free man, he says there are people in his community who shun him and look down on him because he was a prisoner.

While this father of four was delighted last week to see his children and meet his four-year-old daughter for the first time, one of his concerns is to get a job as quickly as possible so he can take care of them.

He feels the rape case against him would not have gone to trial if the police had adhered to his request to take samples from him for DNA testing.

"It is just a kind of slack justice system in Jamaica," he said as he referred to the investigation in his case as being very poor.

"The police ignored me when I told them I was innocent and I was willing to do a DNA test because I did not molest the child," he said last week. Now Jackson wants to know who is going to compensate him for the time he spent in prison which he described as "an evil place". He said he still wondered how he, as a hard-working and peaceful man, could have been robbed of four years of his life. At the time, of his arrest, he said he was doing contract work with the Jamaica Public Service.

Jackson has expressed gratitude to attorney-at-law Oswest Senior-Smith for taking an interest in his case and representing him for free. He said he was praising God daily for his freedom because he could have been killed or injured in prison. He described some of the prisoners as very aggressive, and said to avoid confrontations and problems, he had to shower himself with work in the barber shop. Jackson is calling for better facilities in the prison.

Senior-Smith told The Gleaner that the Registrar of the Court of Appeal sent Jackson's case file to him, and on perusing the notes of evidence and the summation, he found "that although the judge had given the jury an impeccable set of direction, there appeared to have been an oversight as regard the issue of good character".

The court found the merit in the sole ground of appeal and quashed the conviction because the nature of the evidence suggested that a conviction was not inevitable if the judge had given good-character direction.

Jackson was convicted on December 20, 2011 for raping an 11-year-old girl in May 2010 and was sentenced to 12 years' imprisonment. He filed an appeal contending that his trial was unfair and the lawyer who represented him at his trial had failed to interview witnesses to support his alibi that he was not in the parish of St Ann at the time of the offence. He said in his defence that the allegations were a deliberate fabrication engineered against him by the child's mother with whom he had a disagreement.

During the hearing of his appeal, Senior-Smith applied to argue one ground of appeal namely "the applicant lost the protection of the law when the jury received no good-character directions from the learnt trial judge".

Senior-Smith argued that one of the witnesses for the prosecution had said she viewed Jackson as a good person when they met, and Jackson's defence on oath entitled the judge to give a good-character direction to the jury.

The Court of Appeal in agreeing with Senior-Smith said the fact that the witness testified that she thought Jackson was a good person when they just met and Jackson's statements concerning his status as a father and his testimony that he would not interfere with little children, were sufficient to create an entitlement to a good-character direction to the jury.

However, the court held that the failure to give the good-character direction, when it was required, does not automatically amount to a miscarriage of justice. The court pointed out that the many instances of discrepancies and inconsistencies in the prosecution's case were such that credibility was a major issue.

The court held said that although the judge did place all the major discrepancies before the jury for its consideration, the failure to give a good-character direction should be held to be fatal to the conviction.

In the interest of justice, a new trial was not ordered because the court said it was almost six years since the incident, and that was especially important in the context of the age of the virtual complainant. The second factor, the court said, was the number of discrepancies in the trial which stemmed from what the child and her mother had said in police statements, and depositions and what was said at the trial.

"With the passage of further time, bearing in mind the age of the child, there are likely to be even further difficulties of that nature in the prosecution's case," Justice Patrick Brooks, Justice Almarie Sinclair-Haynes and Justice Paulette Williams held. The third factor taken into account was that Jackson had served four years' imprisonment since his conviction.

Jackson's conviction was quashed, the sentence set aside and a verdict of acquittal entered.