FEAR­FUL CON­VICTS

Long de­lays in tran­script prepa­ra­tion frus­trat­ing ap­peals process

Jamaica Gleaner - - NEWS - Bar­bara.gayle@glean­erjm.com

THE LONG delay in notes of ev­i­dence be­ing sent from the Supreme Court to the Court of Ap­peal is hav­ing an ad­verse ef­fect on the jus­tice sys­tem, and is even forc­ing some ap­pel­lants in cus­tody to aban­don their ap­peals against con­vic­tions and sen­tences.

The pris­on­ers fear that if they lose their ap­peals, then that is the time when their sen­tences will com­mence.

But court re­porters who are re­spon­si­ble for the prepa­ra­tion of the tran­scripts say it is not their fault that the ap­peals are be­ing held up.

“There is an acute short­age of court re­porters in the depart­ment and so most of our time is spent in court,” one of the court re­porters told The Sun­day Gleaner.

They also pointed out that there were many prob­lems in the depart­ment that were not be­ing ad­dressed. It was dis­closed that within the last 12 months, eight court re­porters re­signed and those va­can­cies are yet to be filled. In ad­di­tion to the short­age of staff, some of the court re­porters re­vealed that they did not have the nec­es­sary tools, such as lap­top com­put­ers, to do the job. They said most of the com­put­ers were not work­ing.

“All we are hear­ing is that there are no funds, and sug­ges­tions were even made re­cently for us to use our money to pur­chase the SD cards [ex­ter­nal mem­ory cards] to be placed in the com­put­ers to store in­for­ma­tion. We are even forced to take home work to help to ex­pe­dite ap­peals,” one re­porter said.

The de­lays have sparked sharp crit­i­cisms from the ap­pel­late judges on many oc­ca­sions.

“Out­ra­geous” was how the Court of Ap­peal – com­pris­ing its pres­i­dent Jus­tice Den­nis Mor­ri­son, Jus­tice Marva McDon­ald-Bishop and Jus­tice Paulette Wil­liams – said last year Septem­ber in the case of Ta­fari Wil­liams, who waited for eight years and did not get the tran­scripts of his trial in the Gun Court.

Shel­don Pusey, 30 – who was con­victed in March 2009 and sen­tenced to 15 years im­pris­on­ment for man­slaugh­ter aris­ing from the death of 64-year-old for­mer trade am­bas­sador Peter King – was given per­mis­sion by the Court of Ap­peal in July to aban­don his ap­peal. King’s body had a to­tal of 30 chop and stab wounds and Pusey, who was charged with the mur­der, said in his de­fence at his trial that he was at King’s home when King drugged him and at­tempted to sodomise him and he stabbed him. He was con­victed of the lesser of­fence.

EARLY RE­LEASE

Pusey said, in his ap­pli­ca­tion, that al­though he had valid grounds of ap­peal, he had al­ready served al­most a half of his sen­tence. He said had he been serv­ing his sen­tence, he would be el­i­gi­ble for early re­lease in a cou­ple of years. Pusey’s ap­peal had come up for hear­ing in Fe­bru­ary 2011, but the tran­script of the ev­i­dence was in­com­plete. It was only com­pleted in Jan­uary this year and by then Pusey took the de­ci­sion not to pur­sue his ap­peal. Pusey said, in his af­fi­davit, that his sen­tence was closer to com­ing to an end and he pre­ferred to avail him­self of time spent in cus­tody and ob­tain an early re­lease.

The Court of Ap­peal granted Pusey per­mis­sion to aban­don his ap­peal and directed that his sen­tence should run from the date of his sen­tence in April 2009.

Last week, at­tor­ney-at-law Jacque­line Cum­mings said that when the Ju­di­ca­ture (Ap­pel­late Ju­ris­dic­tion) Act came into ex­is­tence, ap­peals at that time took three months to be heard.

Cum­mings had ar­gued on ap­peal that Sec­tion 31 (1) of the Ju­di­ca­ture (Ap­pel­late Ju­ris­dic­tion) Act stated that while the ap­peal was pend­ing “time does not count as part of any term of im­pris­on­ment”. She im­plored the court to al­low Pusey to ben­e­fit from time served, fol­low­ing the prin­ci­ples es­tab­lished by it in the case of Ta­fari Wil­liams.

At the same time, at­tor­ney-at-law Robert Fletcher, who rep­re­sented Ta­fari Wil­liams, said when he heard of his client’s plight last year, he went to the prison, spoke with him and then de­cided to rep­re­sent him. Wil­liams, who was sen­tenced in Septem­ber 2007 to a to­tal of 12 years for il­le­gal pos­ses­sion of firearm and shoot­ing with in­tent, wanted to aban­don his ap­peal as he had been wait­ing for eight years and the tran­script of his trial was not ready.

Fletcher ex­plained that the rule states that when an ap­pel­lant aban­dons his ap­peal, it is treated as a dis­missal of his ap­peal but “the catch is that your sen­tence is go­ing to start on the date of aban­don­ment”. He said Wil­liams could lose the eight years that he was in cus­tody and then start serv­ing the 12-year prison term at the time of the aban­don­ment.

TREAT­MENT

He also said there was a dif­fer­ent treat­ment for those in cus­tody await­ing ap­peals than from those who were ac­tu­ally serv­ing sen­tences. For in­stance, per­sons in cus­tody await­ing ap­peals were not given tasks to do or par­tic­i­pate in cer­tain pro­grammes in prison.

Pris­on­ers are usu­ally given one-third time off their sen­tences for good be­hav­iour, but Fletcher said ap­pel­lants in cus­tody can­not go home, even if

they have spent twothirds of the sen­tence in cus­tody. The mat­ter has to be dealt with by the Court of Ap­peal, once an ap­peal has been filed.

“Some in­mates have been com­plain­ing that the tran­scripts were tak­ing for­ever to reach the Court of Ap­peal. Cit­i­zens who are the fam­ily of the clients don’t be­lieve that the ap­peals take that long, and that it is the lawyers who are hold­ing it up. They very of­ten go to the Court of Ap­peal to find out if the lawyers are re­ally telling lies, and they are shocked to find out that it is the sys­tem hold­ing it up,” Fletcher said.

He de­scribed the Court of Ap­peal as more ef­fi­cient than the Supreme Court, and said he was dis­ap­pointed that it was be­ing ham­pered in dis­pos­ing of ap­peals be­cause of the short­age of court re­porters at the Supreme Court. He is call­ing for the num­ber of court re­porters to be dou­bled so that tran­scripts can be pre­pared ex­pe­di­tiously. Fletcher, af­ter fil­ing an aban­don­ment of ap­peal for Wil­liams, was suc­cess­ful in the court or­der­ing that the sen­tence should run from the date when it was im­posed. In hand­ing down its de­ci­sion, the court said, “The up­shot of all of this is that, in the ab­sence of a di­rec­tion from the court, the sen­tence of an ap­pel­lant is deemed to be­gin to run as from the date upon which his ap­peal is de­ter­mined, and not be­fore.” Com­ment­ing fur­ther, the court said, “In this re­gard, the dan­ger of po­ten­tial in­jus­tice to ap­pli­cants/ap­pel­lants aris­ing from not only de­lays in the pro­duc­tion of the tran­scripts of their tri­als but also the some­times un­avoid­able de­lays in the ac­tual hear­ing of ap­peals, is not a new one.” The court re­ferred to nu­mer­ous re­quests sent by the Reg­is­trar of the Court of Ap­peal for the tran­scripts in Wil­liams’ case, and said “By any stan­dard, the delay of eight years in pro­duc­ing the tran­scripts of the ap­pli­cant’s trial in the Gun Court can only be de­scribed as out­ra­geous.” The court stressed that there was no sug­ges­tion that any part of the delay was at­trib­ut­able to any fault of the ap­pel­lant.

RIGHTS DE­NIED

“Up to the date of this judg­ment (Septem­ber 23, 2015), de­spite sev­eral re­minders, the tran­script has still not been re­ceived in the reg­istry of this court,” the court dis­closed.

“The re­sult of this is that he has been de­nied his right to a fair con­sid­er­a­tion of his ap­pli­ca­tion for leave to ap­peal,” the court held.

The court said it was plain from the af­fi­davit that Wil­liams filed that he re­mained con­cerned to es­tab­lish his in­no­cence but was mo­ti­vated by a de­sire to re­join his fam­ily, rather than to pur­sue an ap­peal that had no clear end in view.

Some in­mates have been com­plain­ing that the tran­scripts were tak­ing for­ever to reach the Court of Ap­peal.

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