SYKES...if there is a long gap between crime, detection, arrests, and trial, it doesn’t matter because the person will be hedging their bets, because wrongdoers are risk managers (Llewellyn Wynter)
Playing the court system
Chief justice warns criminals might hedge bets on delays for case dismissal
WHILE Chief Justice Bryan Sykes believes some criminals might seek to play the system and use court delays to have their cases dropped, Director of Public Prosecutions (DPP) Paula Llewellyn says these instances are not common and measures are in place to prevent the manipulation of the justice system.
At least one defence attorney has countered that while defendants might seek a dismissal due to delays, it’s not a tactic to exploit the system but a necessary measure when a fair trial is impossible due to the delays.
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In fact, the defence attorney, Alexander Shaw, emphasised that defendants ultimately want their day in court to clear their names.
Addressing the issue of delays and lawyers requesting that cases be dismissed due to their client’s constitutional right to a fair trial within a reasonable time being breached, the chief justice said the surest way to control crime is early detection, a speedy trial, and punishment if an individual is guilty.
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“It really doesn’t matter how severe the penalty is. If there is a long gap between crime, detection, arrests, and trial, it doesn’t matter because the person will be hedging their bets, because wrongdoers are risk managers like everybody else, so they are going to weigh out the options,” Sykes told the Jamaica Observer. “The longer the cases take to be tried, the criminal may well say it is worth the risk, so we have to shift the balance now to let the criminal realise that this is a high-risk activity, you will be called quickly, and the trial will take place in short order and if the evidence is there, you will be convicted and punished accordingly.”
Sykes pointed to the matter involving dancehall artiste Vybz Kartel, whose real name is Adidjah Palmer, as one that, among other things, highlighted the length of time between the end of the trial and the production of the transcript.
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“The Court of Appeal is signalling, not deciding but signalling, that they are going to be taking the whole question of delay a bit more seriously and scrutinise it a bit more closely, which really means we have to improve our processes, get the trials on, but we also have to resolve some underlining things,” he said.
The chief justice shared that, in discussion with the minister of justice, they have come to the realisation that the circuit system is “no longer adequate”.
“It is not that it was a bad system, but it has run its course in terms of the volume of cases and the complexity of the cases. Certainly, when I started to prosecute, the director as well, most of the cases in the rural circuit would be wounding cases and unlawful wounding or wounding with intent, and so on.
“Now, you have very serious, complex murder cases in just about every parish, and the courts go out, even for a four-week circuit, we really talking about 20 working days — and the expectation is that the judge is to try cases, do case management for other cases, deal with bail applications and all of the things that go along with the running of the circuit — [this] is indicating that that methodology can’t work anymore,” Sykes told the Sunday Observer.
Instead, the chief justice is suggesting that there be regional centres where you have a court.
“For example, in St Ann, and you [are] taking cases from St Mary and from the adjoining parishes; so you have the judge there sitting continuously, because it is important for the citizens to understand that unless we do that, the question of controlling crime and criminality is going to become an even more acute problem for this reason,” said Sykes.
The issue of backlogs in the court system has been prevalent in the media in recent times, with other Caribbean countries and England expressing difficulty clearing the volume of cases before courts.
According to both Minister of Justice Delroy Chuck and the chief justice, Jamaica has made significant progress in clearing cases before the court.
The justice minister, in his sectoral presentation last year, shared that approximately 98 per cent of cases are completed within 24 months, and close to 90 per cent of all cases are tried and completed within 12 months.
However, despite this improvement, there are still matters which have been dragging on for years.
One such case is that of dancehall artiste Munga Honorable, who will return to the Supreme Court on April 30 to answer to a murder charge in connection with the 2017 slaying of Cleveland Smith.
The deejay is represented by attorney Christopher Townsend, who told Observer Online, that even after seven years, the prosecution’s file remains incomplete so full disclosure is yet to be made to the defence team.
Townsend stated that he wants the case to be dismissed because his client’s constitutional rights had been breached due to the “inordinate amount of time” the case had been languishing before the courts.
“My client’s constitutional right to trial within a reasonable time has been breached. A reasonable time is an average of five years, but at this stage, after seven years, without full disclosure, how can we now trust that we can even rely on this information that remains outstanding?” Townsend asked.
He called for the DPP’s office, the judiciary, and the Bar to make a decision.
“We have to dump some cases that have been before the court for an inordinate amount of time. In a mature democracy, why can’t we dispense justice in a reasonable time? We have to dispose of matters,” Townsend said.
Llewellyn, addressing the matter of delays, shared that they are often outside of the prosecution’s control.
She said that the issue can arise from a myriad factors, such as problems within State agencies and fear among witnesses who do not want to testify or have moved on with their life. She added that, in some cases, witnesses move to another country or location and lose touch with the investigative officer or the officer resigns, and it is difficult to rebuild the connection.
While noting that Jamaica has a strong witness protection programme, the DPP said that many witnesses are not willing to be enrolled in the programme and disrupt their lives. Llewellyn stated that unless there is adequate witness care, there will be problems keeping witnesses engaged.
In some instances, she said State agencies who conduct DNA tests or analysis on computers or electronics for evidence are understaffed and have a high turnover rate, so these reports can take months.
The DPP said, too, that sometimes the prosecution is willing to continue a case without the evidence if it will take time to get the analysis conducted. However, the defence might be adamant that they need the analysis to plead their case, so the matter is delayed.
She further noted that delays are not just on the side of the prosecution.
“Sometimes the prosecution is ready, the witnesses are available, and you will have some defence counsel who, in a very smart and astute way we’ve had some defendants, too, who play the system,” she told the Sunday Observer.
Llewellyn recalled one instance in which a man, charged with the murder of six, delayed a case for more than 10 years by switching his attorney multiple times.
“When we checked it, there had been about 80 times that the matter had come before the court with like about 30, if not more, trial dates. He had changed about eight or nine defence attorneys and when it dropped in my lap as DPP, I said it’s gonna stop here and we were able to try the case, and even the attorney in the case wanted to withdraw, but the judge didn’t give him permission to withdraw,” she shared.
The DPP noted that while calls for dismissal of a case due to delays and breaches of a client’s constitutional right to a fair trial within a reasonable time are not common, there are some defence attorneys who have been trying to make submissions to judges. However, she said that the days when a case is centred around the rights of the defendant are over.
“The rights of the victim are also critically important, so a victim also deserves to have their day in court, so it’s a fine balance that the court, the judge and the prosecuting authorities have to dance, and what will happen if an attorney makes a submission to say that the case should not be allowed to convene, the threshold is very high.
“The law leans in favour, even with the prospect of a possible breach of constitutional rights… of the matter being ventilated, which is why you still have a situation where, though you may have delays, a case is not statute-barred,” Llewellyn explained.
She said that when an application is made, the prosecution will then respond by inviting the judge to look at the record of the case “because, for example, on most occasions the prosecution was ready and the defence attorney was not ready, then clearly you can’t then come and turn around and ask us to dismiss when you put yourself in that situation and putting the trial in jeopardy by not being ready to come and say that five years have passed and six years have passed, the matter should not proceed”.
“Each case has to be assessed on its particular set of facts, and I can assure you that any application that is made by the defence, it will be robustly dealt with by prosecuting counsel and the other side who will also make sure that the file is very well researched and a very detailed report is put together, and submissions are made and it relates to what happened on each day the matter was before the court,” the DPP added.
Defence attorney Shaw, countering claims that criminals might hedge their bet on having their case thrown out due to delays that result in a breach of their rights, said that devising a strategy to delay until a witness becomes frustrated is not necessarily achievable by the defence counsel, because there are systems in place to prevent it.
He noted that while a defence team might call for a dismissal due to delays, it is ultimately because their client’s right to a fair and timely trial has been breached and not because they are trying to exploit the system.
“When you are asking for a witness to recall an event that happened five, six, seven years ago, his or her memory may not enable him or her to recall exactly what happened and how it happened,” said Shaw.
He added that the delay can also affect a defendant, where a witness on their end may no longer be available and cripple their strong defence. He further noted that delays can lead to a defendant being in custody for years, which is an inconvenience for them.
“You really can’t blame any one party. As defence attorneys, yes, we’re going to make a lot of noise…We’re going to be opposed to a trial going on after such a long period because it violates the defendant’s constitutional right to trial within a reasonable time, but the purpose of trial within a reasonable time is to safeguard the fairness of the procedure,” Shaw explained.
He added that, ultimately, defendants want their day in court.
“If it is that you have a strong defence and you want your case to be tried, you want your day in court, and every time you go to court and your matter is put off for whatever reason, you become frustrated because now you won’t get the chance for your matter to be tested on its merit.
“If somebody told a lie on you and you want a day in court to confront them and say, ‘Listen, you were lying because I wasn’t there,’ or you have evidence to show where you were at but you never got that chance to clear your name properly, you don’t just want a formal verdict of not guilty because the witness did not show up and they don’t want to continue with it. You want to test the case. You want to ensure that your story is ventilated properly and is considered,” said Shaw.
A view of Jamaica’s Supreme Court in Kingston
