Regrettable breach of rights

Despite an eight-year wait for the production of the transcript of his trial for shooting, the Court of Appeal ruled last week that Jerome Palmer’s acknowledgements in abandoning his appeal meant the appeal was not prejudiced by the delay and so he could not get a reduction in his sentence.

The court however ruled that the delay caused a breach of his constitutional rights and offered a public apology to Palmer.

Attorney-at-law Keith Bishop, who represented Palmer, said yesterday that “the recent public acknowledgement by the Court of Appeal in this matter, that the constitutional right of Jerome Palmer has been breached when his appeal was not heard within a reasonable time is yet another recognition by our courts that the Charter of Rights must be taken seriously and that judges are now willing to recognise and acknowledge those Charter Rights as fundamental rights that are inalienable.

“By extension, the transcripts of evidence must be prepared and delivered to the Court of Appeal within a reasonable time as innocent persons are likely to be prejudiced by the delay in delivering transcripts.”

Palmer, on Christmas Day 2012, chased and shot a man in Jones Town, St Andrew. When the man fell, Palmer stood over him, fired other shots at him, and then robbed him of his gold chain and pendant valued at $150,000.

The complainant was hospitalised, and after being discharged, made a report to the police. In February 2013, he pointed out Palmer during a video identification parade.

Palmer said in his defence at his trial that he had not attacked the complainant. He complained that while he was in custody, a policeman took his photograph.

He was convicted on May 20, 2014, and subsequently sentenced to 15 years’ imprisonment for illegal possession of firearm, 20 years for wounding with intent, and 12 years for robbery with aggravation. The sentences were to run concurrently.

He filed grounds of appeal on May 28, 2014, contending that he was wrongfully identified, there was lack of evidence, unfair trial, and miscarriage of justice because he was convicted for a crime he did not commit.

The transcript of the trial, for use in the application of his appeal, was received by the Court of Appeal on June 16, 2022.

When the appeal came for hearing, Bishop informed the judge that he had been instructed by Palmer to abandon the appeal against conviction but to proceed with the appeal against sentence. Bishop declined to advance submissions that the sentence was excessive but argued that there was no indication that the trial judge deducted the one year and four months that Palmer spent on pre-sentence remand before he was sentenced.

In regard to the delay of the transcript, Bishop submitted that “in light of the eight-year delay and the clear acknowledgement and acceptance that there has been a breach of the appellant’s constitutional right to a hearing within a reasonable time, the sentence should be reduced by between two to four years”.

Crown Counsel Donette Henriques submitted that it would be unreasonable to submit that the eight-year delay, due to the late production of the transcript, was acceptable. She contended that the remedy for unreasonable post-conviction delay, which was entirely attributed to the State, should not automatically result in a reduction of sentence. Henriques pointed out that the appellant presented no affidavit evidence alleging actual prejudice occasioned by the delay.

On the issue of the convictions, the court said it agreed with counsel for the appellant and counsel for the Crown that there was no merit in the original grounds of appeal filed against conviction.

Palmer received a reduction in sentence of one year and four months for the time he spent on pre-sentence remand. The court said that in keeping with well-established authority, the appellant was entitled to full credit.

Appropriate redress

The court, comprising Justice Jennifer Straw, Justice David Fraser, and Justice Kissock Laing, after ruling that Palmer’s constitutional rights were breached by the eight-year delay of the transcript, queried what redress should be afforded to him.

“It is now settled law that where there is a breach of a defendant’s constitutional right to a fair hearing within a reasonable time, caused by excessive delay, that the defendant is entitled to appropriate redress. Quite rightly, in our view, counsel for the Crown has acknowledged that the delay in the appellant’s appeal coming on for hearing, occasioned by the eight-year wait for the production of the trial transcript, constitutes a breach of the appellant’s constitutional right to have his convictions and sentences reviewed by a superior court within a reasonable time. This is so as the reasonable time guarantee extends to all stages of the adjudication process. While there is agreement between the parties that there has been a breach, there is divergence regarding the appropriate redress.”

In the written judgment, the court emphasised that it was acknowledged by the appellant and his counsel, and determined by the court, that the convictions were safe and the sentences were not manifestly excessive, therefore, the conduct of the appellant’s appeal was in no way prejudiced by the delay in the production of the transcript.

The court said it agreed with the submissions by Henriques for the Crown that in the circumstances of this case where actual prejudice had not been demonstrated, reduction of sentence for delay would be unjustified. A public acknowledgement of the breach was indicated by the court as the remedy.

“It is hereby acknowledged, with regret, that the right of the appellant under 16(8) of the Constitution of Jamaica to have his convictions and sentences reviewed by this court, within a reasonable time, has been breached by the excessive delay between his convictions and sentencing and the hearing of his appeal,” the court said.

Attorney-at-law Jamoi Pinnock appeared with Bishop for the appellant, and Crown Counsel Debra Bryan appeared with Henriques for the Crown.

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