Court apologises to prisoner over decadelong transcript delay

The Court of Appeal has offered a public apology to a prisoner whose constitutional rights were breached while spending 10 years in prison awaiting the full transcript of the proceedings of his sentencing hearing.

The court described the matter as an “egregious delay” and granted two declarations that Dwight Campbell’s constitutional rights were breached.

The delay in obtaining transcripts for cases being appealed has been a serious problem that the Court of Appeal has often frowned upon and has left lawyers complaining bitterly about the injustice to appellants.

Campbell had pleaded guilty on February 4, 2013, to the murder of Rosan Jordan, who was shot in the face and the back of the head on May 19, 2009, in Newlands, St Catherine.

On February 6, 2013, Campbell was sentenced to life imprisonment and was ordered to serve 15 years behind bars before becoming eligible for parole.

He appealed the sentece on grounds that it was excessive and that the judge did not temper justice with mercy in light of his guilty plea.

When the appeal came up for hearing earlier in December, Campbell was granted permission to abandon it.

Attorney-at-law Oswest Senior-Smith, who represented Campbell, was granted permission to argue one ground of appeal that Campbell’s constitutional rights were breached by the delay in getting the transcript.

On January 21, last year, the Court of Appeal received only a part of the transcript of proceedings before the Circuit Court. They were the notes of the proceedings held on February 4, 2013, the indictment, and the appellant’s antecedent report.

The judges said the question as to whether it was open to the court to convert Campbell’s sentence of life imprisonment to a determinate one to reduce the sentence of life imprisonment for the breaches of Campbell’s constitutional rights was explored, though not in full-depth submissions before the court.

“We noted that neither the research of counsel nor the court unearthed a decision in which such a step was taken by the court,” the judges said.

The court made inquiries into whether Campbell had been in pre-sentence custody in order to take that into account in determining what redress would be best suited, but it said that the fact that Campbell was in custody for two separate murder matters at the same time made it challenging to attempt a separation of the time spent in pre-sentence custody.

“Importantly, we also took into account counsel’s instructions from his client, which he emphasised were ‘very particular’ that he did not wish to challenge the sentence that the court imposed on him. It did appear, as the Crown has deduced, that the applicant has no difficulty with the sentence. In all the circumstances and in light of the matters highlighted above, we did not believe that this was an appropriate case in which to undertake serious consideration of such a ground-breaking course of action.

“In light of all the above the court concluded that the most appropriate redress in the instant case is for this court to publicly acknowledge and apologise to the applicant for the egregious delay in the hearing of the appeal and the failure to produce the full transcript of the sentencing hearing,” the court ruled.

The sentence is to be reckoned as having commenced on February 6, 2013, when Campbell was sentenced.

Two declarations were granted by the court, comprising Justice Nicole Foster-Pusey, Justice Marcia Dunbar-Green and Justice Georgianna Fraser.

“It is declared that the right of the applicant under section 16(7) of the Constitution to be given a copy of the record of proceedings within a reasonable time after judgment, has been breached; and

“It is declared that the applicant’s right under section 16(8) of the Constitution to have his sentence reviewed by a superior court within a reasonable time has been breached by the excessive delay between his sentencing and the hearing of the appeal,” the court said.

Senior-Smith, in commenting further on the case, said: “Indeed, it was another distressing example of delay in the production of the requisite transcript.

“It is a watershed decision as the Court of Appeal has, by this judgment, underlined that even where the appellant’s instructions to counsel may be to apply to abandon the appeal, if there are constitutional infractions, the court can still make pronouncements concerning such breaches,” he told The Sunday Gleaner last week. “The court, in this case, recognised that this appellant may not have been the most ‘anxious of appellants’, but has categorically adumbrated that in a more appropriate case, an even more ‘ground-breaking course of action’ could be forthcoming.”

Senior-Smith has made an urgent call for the State to address this longstanding issue of absent transcripts, many of which remain unavailable several years after a conviction.

“We should expect that 2024 will herald a sea change in this regard,” he said.

Senior Deputy Director of Public Prosecutions Kathy-Ann Pyke and Crown Counsel Sean Nelson, who appeared for the Crown, had submitted that the delay in producing the transcript was a breach of Campbell’s constitutional rights.

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