‘That is foolishness’

An ex-hotel worker who was robbed of four years of his life after he was wrongfully convicted on gun and wounding charges has rubbished the proposed amendments to the Bail Act, barring persons on murder and gun charges from getting bail as “foolishness” and is asking the Government to go back to the drawing table.

Minister of Legal and Constitutional Affairs Marlene Malahoo Forte, a former judge, sparked widespread controversy on Tuesday when she made the disclosure during her Sectoral Debate presentation.

“If you on a murder charge, you cannot be at large, and if you on a gun charge, you cannot be at large,” the minister said.

But 32-year-old Kemoy Kesto, whose 10-year sentence on illegal possession of a firearm, unlawful wounding and assault was quashed by the Court of Appeal last month four years into his sentence, said that that proposal is faulty as it does not recognise the presumption of innocence.

“That is foolishness. You are innocent until proven guilty, and furthermore, when you nuh get nuh bail, it come in like you on a sentence for something weh you never do. For instance, me get a sentence for something me never do, plus before the sentence, I was on bail for six years. Imagine if me never get bail. Ten years [would be] missing out of my life,” he reasoned.

Kesto was arrested in December 2012 after a taxi man identified him as a passenger who had attacked him with a gun and who he had managed to injure in his forehead with his chopper.

The complainant had pointed out Kesto to the police after he went to the hospital with an injury to his forehead, which he had sustained while playing football.

Although he had volunteered to give a blood sample so that investigators could use DNA tests to clear him of the accusation, the police failed to submit the blood samples from the complainant’s chopper and within the motor car.

CONSIDER LONG WAIT

In May, the Appeal Court found that judicial error and prosecutor negligence had resulted in him being convicted and overturned his sentence.

Besides ignoring an individual right to bail and presumption of innocence as provided by the Constitution, Kesto said the proposed amendments do not consider the long wait that an individual has to go through in pursuit of justice.

“Anybody can fabricate a lie and you a go then behind bars for a long while and you case affi go try, and that a go tek more time,” he said.

“As in my case, anything can happen to anybody, so I think who come up wid da plan deh to take away the bail must go back to the drawing table ... because that is ridiculous,” he further contended.

Kesto, who before his arrest had been gainfully employed in the hotel sector, said he was still traumatised by his incarceration and rued how it had prevented him from being there for his daughter, who was born while he was in jail.

Janoy Nelson, a 25-year-old construction worker, had spent a year in custody before he, too, was eventually freed on gun charges after the main witness in his case was discredited.

Like Kesto, he urged caution, noting that a number of factors must be considered in granting bail, including the strength of the evidence and whether a person is deemed a threat to society.

The court, Nelson said, should be allowed to assess each case based on its own circumstances.

“I am not saying that if somebody is wrong dem must get right, but sometimes people will tell lie and try to set up persons, so the system must know how to deal with dem things. The minister must come out with a system that is fair,” he told The Gleaner.

He recalled that in his case, the complainant reported that Nelson had chased him down and fired a gun at him, but the story did not hold up in court.

However, Nelson said that while some persons are innocent, some are indeed guilty, and so not everyone should get the same privilege of being on bail.

Kesto and Nelson’s matters are among a slew of cases reported in the media in which persons who have spent years in custody or on bail were eventually freed as a result of insufficient evidence, failure to locate witnesses, or after police officers or key witnesses gave false evidence.

A 32-year-old bearer who had spent a year in custody was last year freed of gun charges after it was borne out in court that two inspectors who gave testimony at his trial had lied to the court. Up to press time, Senior Superintendent Stephanie Lindsay, head of the police’s Corporate Communications Unit, was unable to confirm whether any disciplinary actions were taken against the officers.

Malahoo-Forte’s comment has also left many persons in the legal fraternity bewildered, but during an interview on Radio Jamaica’s ‘Beyond the Headlines’ yesterday, she shied away from saying exactly what is contained in the draft of the revised act, asking for persons to wait until it is tabled.

“I know that we have gone down the road of trying to make special provision for persons on murder charge, and we have the benefit of the court reaction, the society reaction, but in spite of what we feel, I think we can all agree that we have a particularly abnormal problem with murder in this country, and the Government is seeking to address it from various angles,” she argued.

While adding that she understood the opposing views, the minister stressed that the current Bail Act regime was not being disturbed but that aspects were being clarified and amplified, with new things set to be added, including electronic monitoring.

The minister said that she was also aware of the attempts that were made in 2010 to amend the law and the court ruling pertaining to the Adrian Nation case that followed, which voided the amendment.

Lawyers who spoke with The Gleaner questioned her statement in light of the ruling, which found that the amendments seek to restrict persons who are charged with serious crimes to entitlement to bail after 60 days and that a requirement for them to convince the court that they are worthy of bail violated the Constitution.

The judge found then that the power to determine bail resided with judges and not lawmakers.

When contacted, attorney-at-law Norman Godfrey, who had represented the claimant in that landmark case, said: “I think the Constitutional Court had settled that matter.

“It is my view that it would be a breach of the constitutional right to bail, and the case of Nation and Wright spoke eloquently to that because the issues are basically similar, and that was struck down by the court.”

He recalled that the court had not looked favourably at the 60-day restriction bail and underscored that an individual, regardless of the charge, is entitled to bail, and any person who seeks to deprive him of that right must show just reason why he should be deprived of his liberty.

But Godfrey said: “This is even worse because this is not saying that there is a timeline within which an application may be made. This is saying there shall be no bail, so it goes further than that amendment.

“To my mind, if you are saying someone who is charged with murder or gun charge is not entitled to bail, is that a presumption of innocence or a presumption of guilt?” he asked.

The attorney further noted that the Bail Act in its current form is working effectively.

Attorney-at-law Tamika Harris shared similar sentiments, noting that the minister needs to reacquaint herself with the Constitution, the Charter of Fundamental Rights, and the Nation and Wright case.

“I also think she needs to support her announcement with empirical data,” said Harris. “We would benefit from the data to tell us how many persons are indeed convicted and are sentenced? How many persons have spent five, six years only to be released after being found guilty by a judge or a jury or after the prosecution offers no evidence?

“How can we give back those persons their six years of not interacting with their family or six years of not properly developing themselves as there is no proper programme in a detention centre? How can we justify that as a civilised nation?” she asked.

Further, she said that the vast majority of persons on bail do not reoffend, and it is unfortunate that the Government is comfortable with the good-suffering-for-the-bad approach to citizens’ liberty.

tanesha.mundle@gleanerjm.com