Wed | Aug 4, 2021

Hundreds of appeals in limbo - Outstanding judges’ notes, court transcripts hobble process

Published:Sunday | March 7, 2021 | 12:20 AMLivern Barrett - Senior Staff Reporter

Nearly 400 appeals filed in the last four years challenging rulings handed down by Jamaica’s high and parish courts have stalled because of the absence of transcripts.

Between 2016 and February 22 this year, a total of 311 transcripts and 67 judges’ notes were outstanding from the high courts and the parish courts, respectively, according to figures compiled by Court Administration Division (CAD).

For the High Court, the transcript is the official record of the trial and is produced by a court reporter. In the parish courts, judges have a duty, once a litigant gives notice of appeal, to produce from their notes a document setting out what transpired during the trial and the basis on which they arrived at their decision.

Citing prevailing case law, legal experts say persons convicted of a criminal offence in the parish courts stand a “very good chance” of having their convictions tossed out by the Court of Appeal in cases where the judges’ notes and findings of fact are not produced.

The Office of the Director of Public Prosecutions has also acknowledged publicly that it would be hard-pressed to oppose such appeals.

Since 2016, a total of 166 appeals have been filed in nine of the 13 parish courts islandwide, according to the figures released by CAD.

However, the court services agency disclosed that up to February 22 this year, judges’ notes were submitted in 95 cases.

Information from the parish courts in St Thomas, Portland, St Ann and St Elizabeth “will become available at a later date”, CAD said.

And there was no indication whether any of the delinquent judges remain in the parish courts system or have been promoted to higher courts.

The Kingston and St Andrew Parish Court’s Criminal Division was the worst, CAD figures show. It received 40 appeals over the four-year period, but judges’ notes have not been delivered in 32 cases.

St James and St Catherine were next, with judges’ notes outstanding in 15 and 11 cases, respectively, of the 35 appeals filed at each court.

The Manchester, Hanover and Westmoreland parish courts had no cases of undelivered judges’ notes.

“What happens very often in the parish courts is that the judges move from one parish to another parish, the [appeal] application comes in and the clerk doesn’t tell the judge that her decision has been appealed and that her notes is needed,” said attorney Jacqueline Cummings, former president of the Jamaican Bar Association, summing up the issues in the second-tier court system.

“And the case remains in abeyance until his lawyer follows up on it.”

Another attorney charged, too, that there are parish court judges who do not take notes during a trial

“So, once we see that, we just file an appeal if it is a guilty verdict and wait them out then we go to the Court of Appeal,” the attorney told The Sunday Gleaner on the condition of anonymity.

The importance of judges’ notes was underscored in the recent decision of the Court of Appeal to quash the conviction of Michael Francis.

Francis, a deportee, pleaded guilty to 20 counts of fraud-related charges in 2007, but was freed last year because of “egregious errors” by the presiding judge, then Senior Resident Magistrate Judith Pusey, and the fact that his case file was missing for more than a decade.

Pusey, now a High Court judge, admitted that “unfortunately, no note was made of what transpired in court on arraignment”, according to the Court of Appeal judgment.

“Bearing in mind the circumstances of this case, it is important to emphasise the duty of a parish court judge to note clearly what transpires before the court when a defendant pleads guilty,” the Appeal Court said.

CAD, which was responding to questions from The Sunday Gleaner, did not provide a breakdown of the outstanding transcripts from the high courts.

Court reporters, who have faced criticisms for the pile-up of transcripts, painted a dire picture of their department.

STAFFING ISSUES

A chronic staff shortage and malfunctioning equipment, they said, have made their working conditions difficult.

As an example, one scribe told The Sunday Gleaner that a number of stenographic machines in the court system have been out of service “for years because there is no one in the island who can fix them”.

“The only reason there is not a real crisis is because we are able to use the machines of persons who have left the department,” said the court reporter, who requested anonymity because they are not authorised to speak publicly.

The court reporter said this is compounded by a shortage of laptop computers and a reliable printer, which is essential to the production of transcripts.

They complain, too, that the understaffing leaves them very little time to focus on producing the transcripts.

“There used to be two court reporters assigned to a court each day, but with the staff shortage, only one person is now assigned, which means that the court reporter has to be in court every day,” said another employee.

“In days gone by when two persons were assigned to a court, then half of the day would be spent doing note-taking in court while the rest of the day would be spent preparing transcripts,” the employee explained.

The courts reporters charged that they are overburdened with the additional responsibility of proofreading notes of evidence and collating them “because they have no one to do it”.

“This is really putting a strain on us.”

They acknowledged that they are now being trained by a Canadian expert to collate transcripts electronically and believe this will make the process easier.

livern.barrett@gleanerjm.com