Appeal Court denies application for return of boat on which cocaine was found

The Court of Appeal in refusing to grant orders for the return of a boat that was confiscated after cocaine was found on it,  has expressed regret that 17 years have passed since the applicant took steps to overturn the order.

The delay was due to non-production of records in the Kingston and St Andrew Parish Court since January 2007.

In refusing the application, the court upheld a preliminary objection by Crown Counsel  Donnette Henriques and Afreya Cox that the application should have been brought under the Judicature (Appellate Jurisdiction) Act (JAJA) instead off the Dangerous Drugs Act.

Mark Archer, the owner of the boat, had filed an appeal for an expedited hearing in August 2023 against the forfeiture order made in the Parish Court in 2007.

Orders were made by the Court of Appeal on December 4, 2023 for the court administrator at the parish court to cause the clerk of the court to transmit to the court before December 18, 2023 the relevant documents for Archer's matter to be heard expeditiously.

The boat, known as the Dolphin Lady, which is a 60-foot trawler fishing boat, was searched by the police with the assistance of the Jamaica Defence Coast Guard in February 2005. A bucket with eight parcels of cocaine was found on deck. Eight men were on board at the time and one of them admitted that the packages belonged to him.

All the men were subsequently arrested and charged, but seven of them were freed after the man who admitted that the packages belonged to him pleaded guilty in court.

On February 17,  2005, Archer, through his attorney Ernest Davis, applied in the parish court for the release of the boat and its cargo of fish weighing 6,000 pounds. Archer stated that he did not know that drugs or anything illegal were on the boat. The application was heard in the Kingston and St Andrew Parish Court and was refused on February 21, 2005.

After one of the eight men pleaded guilty to drug charges on March 30, 2005, the parish judge signed a forfeiture order under the Dangerous Drugs Act. The order indicated that the application for forfeiture of the boat was made on behalf of the Crown by the Clerk of the Court.  Archer made another  application in April 2005 for the revocation of the order but it was refused on January 5, 2007.

“It is to be regretted that some 17 years have passed since the applicant embarked on his quest to overturn the order of the Resident Magistrate so that the vessel can be released. It is truly egregious that this delay was largely occasioned by the non-production of the record of proceedings in the court below,” the court lamented.

The court pointed out that the application before the court was for the hearing of the application to be treated as the hearing of the appeal so that the Dolphin Lady can be released. 

“There is no proper appeal before us and as such we have no choice but to refuse the application," the court comprising Justices Paulette Williams, Evan Brown and Kissock Laing ruled last month.

The attorneys for the respondents argued that Archer had brought his application under the wrong law and had not properly invoked the jurisdiction of the court for the matter to be heard and determined. 

It was further submitted that the  applicant was not a defendant before the court for the offences that engendered the application under section 24(2) of the Dangerous Drugs Act and, therefore, lack standing to make an application pursuant to section 293 of the Act. They further argued that the application should instead have been brought under section 29 (1) of the JAJA.

Attorneys-at-John Clarke and Isat Buchanan who represented Archer had argued that the applicant was not a convicted person nor was he seeking the exercise of His Majesty's mercy and thus could not seek to have the matter referred to the Court of Appeal by virtue of the provision of the JAJA. The attorneys argued that based on the special statutory jurisdiction of the resident magistrate (now parish judge) the applicant would have an interest in the boat and if aggrieved by the final order or judgment he could  apply pursuant to section 293 of the Dangerous Drugs Act.

The court referred to the case of Bertram Sears versus the DPP which is a case similar to Archer's in which a petition to the Governor General was referred to the Court of Appeal for a re-hearing under section 29(1) of the JAJA.  The relevant section gives the Governor General the authority to refer petitions to the Court of Appeal.

In refusing the orders sought, the court encouraged the applicant “ to move expeditiously to take the necessary steps to properly approach this court.”

-Barbara Gayle

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