Sat | Nov 27, 2021

Fighting for integrity

Convicts file lawsuits over excessive delays in appeal process

Published:Sunday | March 21, 2021 | 12:33 AMLivern Barrett - Senior Staff Reporter
Terrence Williams
Terrence Williams
John Clarke.
John Clarke.
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Jonathan Anderson* was convicted in 2015 for a number of traffic breaches he insists he did not commit.

But the convictions in the Traffic Court for unlicensed motor vehicle, unlawful use of licence plates, and not having motor vehicle insurance meant Anderson, then a police constable, was facing dismissal from the Jamaica Constabulary Force (JCF).

The charges surround a used motor car he purchased in Manchester in 2008 and left with his mechanic in St Andrew to repair.

According to Anderson’s account, after the repairs were completed, an employee at the mechanic shop attached a licence plate to the car and drove it to the JCF base at Up Park Camp, where he left it for him to retrieve.

The former constable said he was apprehended when he went to get the vehicle and jailed for several days before he was formally charged, even after he explained how it got there and provided proof that he was the owner.

With his “integrity”, career and a newly acquired house – purchased through the National Housing Trust (NHT) – on the line, Anderson retained an attorney to challenge the convictions in the Court of Appeal.

“I decided that whatever legal means I have to address that, I want to take that forward,” he said, recounting that he was fined a total of “nearly $12,000”.

Six years later, the appeal has not been heard because the judge’s notes or the transcript of the trial has not been delivered to Anderson or his attorney John Clarke.

The trial, he said, was presided over by then Resident Magistrate Calys Wiltshire, who has since been promoted to the Supreme Court.

Parish Court judges, previously referred as resident magistrates, have a duty, once a litigant gives notice of appeal, to produce from their notes details of what transpired during the trial and the basis on which they arrived at their decision.

“He (Clarke) applied for the transcript and up to today, we can’t get a transcript,” Anderson told The Sunday Gleaner in an interview on Friday.

400 appeals filed

The Sunday Gleaner, citing court figures, reported two weeks ago that over 400 appeals filed in the last four years challenging rulings handed down by the Jamaican high and parish courts have been stalled because of the absence of transcripts and judges notes.

Between 2016 and February 22 this year, a total of 311 transcripts were still outstanding from the high courts and 67 judges’ notes were not produced by the parish courts, the figures revealed.

The convictions, Anderson said, were cited in a 2015 letter from the Office of the Police Commissioner, which notified him that it would be recommending his dismissal from the JCF. He was dismissed in January of this year.

“For me, it’s not even so much the financial burden and all that, it is more about integrity for me,” he said, disclosing that he has now fallen behind on his payments to the NHT and could lose his home.

“Mentally, it has been very traumatising. I can’t even find words to explain. I feel like I was kangarooed in a court.”

The former constable is one of four convicted persons who have filed landmark lawsuits in the Supreme Court challenging, among other things, the constitutionality of the inordinate delays in the production of transcripts by Jamaica’s clogged judicial system.

The constitutional motions were filed by Clarke and Terrence Williams, an ex-prosecutor and former commissioner of the Independent Commission of Investigations, as part of a joint initiative with the human-rights advocacy group, Stand Up for Jamaica.

Outstanding transcripts

The number of lawsuits could increase as the attorney disclosed that they have located nearly a dozen inmates in the prison system who have reached their release date, but must remain in prison because their appeals are being held up by outstanding transcripts.

Under the Judicature (Appellate Jurisdiction) Act, time spent in custody awaiting the hearing of an appeal does not count towards the sentence imposed on a convicted person unless it is so ordered by the Court of Appeal.

According to legal experts, this provision, coupled with the delays in getting transcripts, presents a conundrum for inmates across the penal system who maintain their innocence and opt to exercise their constitutional right to challenge their convictions.

The dilemma arises when an inmate completes the sentence imposed by the trial judge without getting the transcript and must decide whether to remain behind bars until the document is ready or abandon the appeal and go home.

“We want to, with these constitutional motions, look at the section of the law which causes them to be in that dilemma,” Williams told The Sunday Gleaner, explaining the rationale for the lawsuits.

“We want to look at it from two aspects – whether it is a reasonable provision as it is being acted on now, and whether, fundamentally, somebody can be in prison for a sentence but some of the time is not counted towards his sentence.”

Further, Clarke said the lawsuits seek to have the Constitutional Court determine a reasonable time within which transcripts should be produced.

“We are saying that the length of time [taken to produce transcripts] is unreasonable and that it is in breach of the constitutional right in relation to a fair hearing within a reasonable time,” he argued.

“At the Parish Court level, we have the 14-day period [for the delivery of judge’s notes], which is built within the act, but at the Supreme Court, there is no time period stated in the act.”

Jerome Dixon’s daughter was almost five years old in 2011 when he was convicted and sentenced to 15 years in prison for wounding with intent.

She was eight months old when the 17-year-old Dixon was initially taken into custody.

After sentencing, he immediately appealed his conviction, insisting that he had nothing to do with the incident that led to his incarceration.

After a decade in prison, Dixon became eligible for early release last month. With his appeal still on hold because of the unavailability of the transcript, Clarke said his client was presented with a choice.

“He was given the option to change his pursuit of the appeal and he would get a chance to go home,” the attorney said.

“His daughter ... [grew] up believing that her father is a ‘prison bud’ and he wants to be able to go home and tell her that ‘No, the court found me not guilty’.”

Dixon said bonding with his now 14-year-old daughter has been tough, but acknowledged that he has to take the blame for that.

“She come in like she no know me. Me even a talk to har an she jus a look inna me eye. She don’t even call me Dad and dem likkle thing deh … and if me carry har go shopping she don’t even tell me thanks,” he said.

“Me haffi put all a di blame pan me because … me nuh deh deh fi har.”

Dixon was released on bail last month to await the outcome of his appeal, and up to Friday, his transcript was still not ready.

Name changed.*

livern.barrett@gleanerjm.com