‘16 years in hell!’
- Never-ending wait for court records leaves breadwinner’s family in turmoil - Advocates take on several cases to remedy long wait for justice
A fisherman whose boat was forfeited to the Government in 2005 by order of a lower court judge has been forced to wait 16 years to appeal that ruling. That’s because the legal challenge he filed on January 17, 2007 in the Kingston and St Andrew...
A fisherman whose boat was forfeited to the Government in 2005 by order of a lower court judge has been forced to wait 16 years to appeal that ruling.
That’s because the legal challenge he filed on January 17, 2007 in the Kingston and St Andrew Parish Court was never forwarded to the Court of Appeal in the 14 days stipulated by law, court documents have revealed.
Gerrard Linton, a police constable who has been on suspension without pay since he was convicted in 2015 of fraud-related charges, is in a similar bind.
Eight years after his convictions, Linton is still waiting for the Kingston and St Andrew Parish Court to dispatch his case to the country’s second-highest court so that he can attempt to clear his name.
The Judicature (Resident Magistrates) Act stipulates, in Section 299, that parish courts have a maximum of 14 days after they receive notice of an appeal, to forward a record of the case to the Registrar of the Court of Appeal.
This means that the appeal filed by the 55-year-old fisherman, who did not want his name published, should have reached the Court of Appeal on January 31, 2007.
Linton’s case should have been transferred by mid-April 2016.
Both men revealed, in separate interviews last week, that their lives have been ravaged financially and mentally by the long wait to have their appeals heard.
“Is like 16 years in hell! My whole family went into turmoil because the boat was the lifeline of the family,” the fisherman told The Sunday Gleaner.
Linton, a married father of two children, has had to rely on odd jobs “here and there” to help his wife provide for the family.
WHAT THE LAW MANDATES
The record of a case, according to Section 291 of the Judicature (Resident Magistrates) Act, should include the date and place of the trial as well as the notes of evidence the presiding judge relied on to arrive at a ruling.
“Each such record shall be carefully preserved in the office of the Clerk of the Courts and an alphabetical index shall be kept of such records,” the law mandates.
The Kingston and St Andrew Parish Court has failed to produce the records of both cases, including the judges’ notes of evidence, the men charged in a new application made directly to the Court of Appeal for a hearing of their cases.
The judges who presided over both cases, identified in court documents as Martin Gayle and Simone Wolfe Reece, have since been promoted to the High Court.
Both cases underscore the “wanton breach” of the law by those who are supposed to be upholding the law without any consequences, one senior attorney lamented, citing the Judicature (Resident Magistrates) Act.
“One of the real concerns is that there seems to be no penalty so a judge in 2023 can do the same thing and be promoted, while another appellant will have to wait another 16 years before his case is heard,” said the attorney, who did not want to be named.
The attorney said unlike other countries across the globe, Jamaica does not have a system to hold judges accountable for “judicial misbehaviour”.
“When there are allegations of misbehaviour involving lawyers, there is an avenue by which the aggrieved party can have that matter determined by a quasi-judicial body. But when there are complaints of judicial misbehaviour, usually that is the end of the matter in our country,” said the attorney.
The Court Administration Division (CAD) did not respond to questions submitted by The Sunday Gleaner last Thursday seeking to ascertain the number of judges’ notes that are outstanding; the number of appeals that are on hold because of outstanding records; and whether there is a system in place to track these cases.
“The response to your request is being prepared; however, we are unable to provide the information today,” CAD said in an email response on Friday.
“We are working assiduously to have same sent soonest.”
JUSTICE MINISTER SURPRISED
Between 2016 and February 2021, a total of 67 judges’ notes were outstanding across all 13 parish courts islandwide, according to data disclosed by the CAD to The Sunday Gleaner.
A total of 166 appeals were filed in nine of the 13 parish courts over the four-plus years covered by the data, but judges’ notes were only submitted for 95 cases. The CAD did not provide data for the parish courts in St Thomas, Portland, St Ann and St Elizabeth.
The Criminal Division of the Kingston and St Andrew Parish Court had the worst record, failing to produce judges’ notes in 32 of the 40 appeals filed in four-plus years, according to the CAD data.
Noting that Chief Justice Bryan Sykes has responsibility for the operations of the parish courts, Justice Minister Delroy Chuck said he was “surprised” to learn that some are delinquent in producing transcripts.
“The parish courts are performing well and efficiently, certainly in the past four or five years,” Chuck told The Sunday Gleaner on Friday.
The justice minister blamed the “delinquency” on “previous inefficiencies” at the parish court level, but said the issues should be addressed urgently.
The St Catherine fisherman recounted that his boat, with the capacity for up to 70,000 pounds of fish, was confiscated in May 2005 after a crew member, without his knowledge or consent, concealed a quantity of drugs on board.
The vessel, which is registered in his sister’s name, was returning to Jamaica from St Andres Island in Colombia – where he had a lucrative fishing contract – when it was stopped by the Coast Guard near Port Royal.
The crew member, the fisherman said, admitted that he was acting alone and was subsequently convicted and sentenced to five years in prison.
The 55-year-old insisted that he was never charged with any offence, but said that following an application by the Office of the Director of Public Prosecutions, then-magistrate Gayle ordered that the boat should be forfeited to the State.
“The judge said he is not giving me back the boat because I’m a good person, but I know some bad people,” he recounted of the 2007 ruling, which was made under the Dangerous Drugs Act.
A typical sojourn at sea would last 10 days and yielded a catch of at least 50,000 pounds of fish “and they weren’t giving me less than US$100 [per pound] at the time,” noted the St Catherine-based fisherman of his profitable business.
“We would make at least two trips every month. So, we were making good money, very good money.”
Since the loss of his boat, the St Catherine native said his life has taken a downward spiral.
He said both his parents have died and his sister – the registered owner of the boat – has been placed in a mental institution.
The fisherman said he tried to replace his lost wages by raising goats, but immediately faced another crushing setback.
“Gunman come and tek 150 one time,” he said. “Only God knows how me survive. Sometimes when me cook on a Sunday, me no cook again till Thursday. It’s the worst hell; it’s a life of hell.”
He had harsh words for the judicial system, saying, “I never believed that in my own country, I would experience something like this.”
The fisherman produced several letters that were written to Chief Justice Sykes and Gayle to have the issue resolved, but said he never got a response.
“I have completely lost confidence in the court system,” he bristled.
FORGED INSURANCE COVER NOTE
Linton’s conviction stemmed from a forged insurance cover note he presented at Police Traffic Headquarters in Kingston, in 2014, as he attempted to retrieve a motor car registered to him.
The police constable insisted that he was unaware that the document was forged, explaining that it was obtained from someone who was employed to the insurance company named on the cover note.
“But apparently at the time, he was no longer with the insurance company,” he said.
It was subsequently confirmed that the document was forged, but Linton said he was allowed to leave the station without criminal charge to try and find the person from whom the cover note was sourced.
Linton said on his sixth return to the station to report that he could not find the person, he was arrested on four fraud-related charges. He was convicted on two counts – uttering forged documents and conspiracy to defraud – and sentenced to fines totalling $130,000.
He was suspended without pay following the September 2015 conviction.
“Sometimes my wife has to pay the bills and then me say, ‘Alright, me we try and ketch up next month’. So, it has been impacting me financially in a negative way,” he told The Sunday Gleaner.
The failure of the parish court to produce the records of his case amounts to “gross negligence”, the suspended cop asserted.
GROUP SEEKING JUSTICE FOR MANY
Both cases are part of a project being undertaken by a group of attorneys and human rights lobbies to assist citizens whose appeals are being delayed because of chronic delays in the production of transcripts.
The group included attorneys Terrence Williams, former commissioner of the Independent Commission of Investigations; John Clarke; and Celine Dedrick, as well as Jamaicans for Justice and Stand Up For Jamaica.
“We are concerned by the systemic problems apparent from the more than 30 appeal cases in which persons are waiting on their day for justice,” Clarke said during a Sunday Gleaner interview.
There is a similar backlog of transcripts in the High Court.
Clarke acknowledged that delays of more than 16 years are not typical, but said it should never happen, and suggested that lawmakers re-examine the legislation to “avoid the harsh realities or miscarriage of justice occasioned by the delays in this case”.
In what is shaping up to be a test case, he has filed an application asking the Court of Appeal to determine whether the delays amount to a breach of the men’s fundamental rights, and if so, the appropriate remedies.
He also wants the Court of Appeal to order the Kingston and St Andrew Parish Court to produce the records for both cases.
No date has been sent for the hearing of the application, but a ruling in favour of the two men could trigger dozens of similar applications.