Retrial ordered for woman who allegedly damaged housing scheme gate
The Court of Appeal has ordered a retrial for Nordia Duhaney who was convicted in February 2021 for malicious destruction of property to the main gate and barrier at the Coral Spring Village Housing Scheme in Trelawny.
The events leading to damage of the gate stemmed from Duhaney's alleged nonpayment of maintenance fees.
She was placed on probation for 18 months, but the probation was stayed pending the outcome of her appeal.
A retrial was ordered on Friday because the court found that although the notes of evidence were available, they do not include a statement in summary form of the now deceased parish judge's findings of fact on which the appellant's verdict of guilt was founded.
The court issued advice to parish judges that those who record notes of evidence and summary of findings of facts digitally, rather than in notebooks, should ensure that they are immediately turned over to the clerk of the courts at the end of the hearing. The court said “if an oral judgment is recorded, this should be immediately transcribed and preserved in the court's office.”
In ordering a retrial, the court said in all the circumstances, it was led to the conclusion, in agreement with the submissions of attorney-at-law Hugh Wildman, who represented Duhaney, that her conviction must be quashed.
Duhaney is the owner of a dwelling in the housing scheme.
She had objected to paying a maintenance fee and contended that she did not buy into a strata housing scheme and there was no strata registered on the title for her property.
On the day of the incident, Duhaney was informed that a guest was there to see her but she had to go to the gate to let her in because she owed maintenance fees. It is being alleged that Duhaney became furious and when she went to the gate on January 17, 2018 she began to lift the barrier vigorously, causing damage to it.
The gate is the property of the citizens' association and the damage is estimated at $367,000.
Duhaney has denied the allegations and said a man was assisting her to lift the barrier and he remarked that it was once again not working. She then pushed the barrier aside and realised that the arm was bent.
Wildman argued that the association was not a legal entity and was not capable of bringing a charge against Duhaney. He argued further that the judge erred in failing to appreciate that Duhaney, as fee simple owner of land within the housing scheme, was entitled to free access to and from her property.
He also said that she was entitled to use necessary force to remove any obstruction that was impeding her and her guest from accessing the property.
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