Five-year delay in case transcript for buggery convict egregious breach of constitutional rights, says Court of Appeal

The Court of Appeal has frowned on the five-year delay in which Demitri Clarke, a rugby coach of a Kingston address, who was sentenced to seven years' imprisonment, had to wait before receiving the full transcript of his trial so that his appeal could be heard.

“In the circumstances, it was indisputable that the cumulative effect of the delay in the preparation and production of the full transcript was egregious and in breach of the appellant's constitutional right to a hearing of his appeal within a reasonable time.

“Ultimately, the delay in the production of the full transcript meant that the appellant had served a substantial portion of his sentence and the date for his early release was within days of the hearing of the appeal, although the fact that he was an appellant meant that the sentence was not deemed to have commenced.”

Reduced Sentence

The court, in agreeing with attorney-at-law Oswest Senior-Smith that Clarke's constitutional right was breached, reduced the sentence by one year and ordered that the sentence of six years' imprisonment at hard labour should commence on November 23, 2018, the date the sentence was imposed.

Senior-Smith pointed out that the full transcript was produced on February 16, 2023, five years and three months after the trial.

A prisoner is usually given a one-third reduction in sentence for good behaviour.

Clarke was convicted in November 2018 by a Home Circuit Court jury of buggery.

He was sentenced to seven years' imprisonment.

Trial evidence 

Evidence was given at the trial that one Saturday in 2015 he invited a primary school boy to rugby training at the North Street campus of Kingston College.

After training, Clarke told the boy to go upstairs and then sexually molested the boy.

The boy's mother took him to the Elletson Road Police Station in February 2017 where they both made statements.

The boy was taken to a doctor and a medical examination revealed that the anus had an old well-healed scar fissure.

Fissures result from the stretching of the anal mucosa beyond its normal capacity.

The doctor maintained under cross-examination that the signs from her findings collectively pointed to sexual contact and it was unlikely that the use of an unclean inanimate object could have resulted in the development of warts she had seen in the area.

The appellant, in his unsworn statement,  denied the allegations and stated that he was neither a homosexual, a bisexual, or a paedophile.

He said he was convinced the allegations were brought against him because he had a dispute with the boy's father.

He said he was the one who asked the pastor of his church to “spark an investigation in the matter” and within a few weeks after he was charged.

Denied

The Court of Appeal found that there was no merit in the grounds of appeal challenging the conviction.

The court ruled further that Justice Stephanie Jackson-Haisley made no error in her summation to the jury.

Senior-Smith had argued that the conviction should be quashed because the delay in receiving the transcript was a breach of Clarke's constitutional right to have his appeal heard within a reasonable time.

The court said there was no basis to accede to the request that the conviction should be quashed for that reason.

Justice Patrick Brooks, President of the Court of Appeal, Justice Paulette Williams, and Justice Nicole Simmons heard the appeal.

Senior Deputy Director of Public Prosecutions Kathy-Ann Pyke and Crown Counsel Dwayne Houston argued that the conviction should be upheld.

They conceded that the delay in getting the transcript had breached Clarke's constitutional rights.

- Barbara Gayle

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