Mon | Sep 25, 2017

Joke justice - Long delays continue to irk lawyers

Published:Sunday | August 7, 2016 | 8:00 AMBarbara Gayle and Jerome Reynolds

The long delay in disposing of a 14-year-old civil case and an eight-year-old criminal case has drawn sharp criticisms from the lawyers involved in the cases although their clients were eventually victorious.

Attorneys-at-law Raphael Codlin and Annishka Biggs represented former banker Melanie Tapper, who was awarded $14 million in damages against the Government last month.

They argued that although the suit was filed in 2002 it was only on the first day of the hearing before a jury last month that lawyers representing the Attorney General's Department told the court they would not be defending the case and were not calling any witnesses.

"If I had known the position of the defendant from 10 years ago the case could have been disposed of within three years and would not have dragged on for so long," Codlin told The Sunday Gleaner last week.

 

NO CONTEST

 

He said once there was no defence, he would have applied for judgment and had the case set down for assessment of damages.

According to Codlin, to be told at the last minute that there was no contest must be regarded as cruel.

Codlin explained that the case had to go to trial because the defendant admitted part of Tapper?s claim but had objected to some parts of the claim.

The lawyer said Tapper faced unnecessary misery and stress while waiting for such a long time for the civil case to be heard.

"She lost her job, had sleepless nights, and was shunned by her professional colleagues and social friends," said Codlin.

The criminal case involved 37-year-old Omar Brown, of Yallahs, St Thomas, who was charged eight years ago with double murder . He was freed last month on a no-case submission after a two-and-a-half-week trial.

Defence lawyers Hensley Williams and Taunache Hamilton, in making the no-case submission in the St Thomas Circuit Court, referred to the poor investigation by the police.

They pointed out that although Brown was held within the same day he was accused of shooting two men in Yallahs, no identification parade was held and there was no swabbing of his hands for gun powder residue or trace levels of it.

Williams described the trial as a waste of resources, pointing out that the sole eyewitness, who was also the sole eyewitness in two different murder cases, was discredited during cross-examination. He said the witness even admitted under cross-examination that she was a 'professional' witness.

According to Williams, the weeding out of similar cases from the court list could save time and resources. He explained that Brown had spent seven years in prison on a gun charge and it was after his release that he was tried for the double murder.

In Tapper's case, she was charged jointly with Winston McKenzie in 1997 with conspiracy to defraud Kingston businessman Bentley Rose of $7 million.

On July 6, 1998, a nolle prosequi was entered in the Corporate Area Resident Magistrate's Court (now Parish Court) dropping the charge, and Tapper was told by the judge that she was free to go.

While some distance from the courtroom, the prosecutor instructed the police to take her back into custody and take her to the Home Circuit Court where a Voluntary Bill of Indictment was preferred for the same offence for which the nolle prosequi was entered.

Tapper complained that when she was taken to the Home Circuit Court she was placed in a cell near to some male prisoners who expressed desires to be intimate with her.

She said she was further humiliated during the bail hearing when the judge remarked that she was lucky the prosecution was not opposing bail because she would have been locked up over the weekend.

 

COURT PROCESS ABUSED

 

A motion was filed by Tapper and McKenzie in 1998 seeking redress from the Constitutional Court. On February 8, 1999, the court ruled that the entry of the nolle prosequi and the presentation of the Voluntary Bill of Indictment amounted to "an abuse of the process of the court, a deprivation of the protection of the law and a contravention of the Constitution".

The Constitutional Court stayed proceedings on the voluntary Bill of Indictment and sent back the case to the Resident Magistrate's Court for trial. The court described the case as unique as the circumstances leading up to the final act by the then director of public prosecutions (DPP) was unprecedented.

"It seemed clear," the court said, "that the then DPP was misled by the prosecutor into making strange extra-judicial moves to have the resident magistrate removed from trying the case because of certain comments made in court."

It was the finding of the court that the applicants were on bail which had not been revoked and there was no process in the hands of the police to sanction their arrest when the prosecutor instructed them to arrest the applicants after the nolle prosequi was entered.

The court ruled that Tapper and McKenzie were entitled to redress in the form of damages to be assessed at the completion of the criminal trial because of their arrests.

Tapper and McKenzie were convicted of the offence of conspiracy to defraud, and when they appealed, their prison sentences were set aside. They were given suspended sentences because of the four-year delay in the preparation of the notes of evidence for the hearing of the appeal.

Last month, Tapper's claim for damages was heard by a civil jury in the Supreme Court. The jury assessed damages and awarded $10 million in compensatory damages for false imprisonment. She was also awarded $4 million in exemplary damages as the acts committed against her were "arbitrary and oppressive". The jury awarded legal costs as well as interest on the $14 million.