Evon Jack v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brooks P
• Judgment Date: 04 October 2021
• Neutral Citation: JM 2021 CA 103
• Docket Number: SUPREME COURT CRIMINAL APPEAL NO 74/2013

[2021] JMCA Crim 31

IN THE COURT OF APPEAL

BEFORE:

The Hon Mr Justice Brooks P

The Hon Miss Justice Straw JA

The Hon Miss Justice Edwards JA

SUPREME COURT CRIMINAL APPEAL NO 74/2013

Evon Jack

and

R

Terrence Williams instructed by John Clarke for the appellant

Mrs Tracy-Ann Robinson and Dwayne Green for the Crown

Written submissions by counsel for the Attorney General

Brooks P

1 On 30 July 2021, at the conclusion of the hearing of Mr Evon Jack's application for leave to appeal against his conviction, and appeal against sentence, the court, decided that it was not possible to have a fair review of Mr Jack's conviction. It, therefore, ruled as follows:

• “1. It is declared that the right of the applicant under section 16(7) of the Constitution of Jamaica, to be given a copy of the record of the proceedings made by or on behalf of the court, has been breached.

• 2. It is declared that the right of the applicant under section 16(8) of the Constitution of Jamaica, to have his conviction and sentence reviewed by a superior court within a reasonable time has been breached by the excessive delay between his conviction and the hearing of his appeal.

• 3.

  • a. the application for leave to appeal against conviction is granted and the hearing of the application is treated as the hearing of the appeal;

  • b. the appeal is allowed;

  • c. As redress for those breaches of his constitutional rights in these circumstances the convictions are quashed, the sentences are set aside and a judgment and verdict of acquittal is ordered for each count on the indictment.”

2 At that time the court promised to provide reasons for its decision and this is in fulfilment of that promise.

Introduction and grounds of appeal

3 Mr Jack was convicted on 17 May 2013 for sexual offences against a child. As a result of the convictions, he was sentenced on 14 June 2013 to serve concurrent terms of imprisonment at hard labour, as follows:

The offences were said to have been committed on 6 May 2011.

• a. 15 years for carnal abuse;

• b. five years for buggery; and

• c. two years for indecent assault.

4 Mr Jack applied for leave to appeal against his convictions and sentences. A transcript of the trial judge's summation to the jury was delivered to this court in November 2019. A single judge of appeal reviewed the transcript and refused Mr Jack's application for leave to appeal against convictions. The learned single judge of appeal, however, granted him leave to appeal against his sentences.

5 As was his right, Mr Jack renewed his application for leave to appeal against his conviction. His originally proposed grounds of appeal against his conviction were:

• “(1) Misidentity by the Witness: — That the prosecution witnesses wrongfully identified me as the person or amoung [sic] any persons who committed the alleged crime.

• (2) Unfair Trial: — That the evidence and testimonies upon which the Learned Trial Judge relied on for the purpose to convict me lack facts and credibility thus rendering the verdict unsafe in the circumstances.

• (3) Lack of Evidence: — That the prosecution failed to present to the [jury] any ‘concrete’ piece of evidence material, forensic, DNA or scientific evidence to link me to the alleged crime.

• (4) Miscarriage of Justice: — That the Court wrongfully convict [sic] me for a crime I knew nothing about.” (Emphasis and underlining as in original)

6 Over eight years after his conviction, the transcript of the evidence, which was adduced at his trial, has not been produced. All that has been produced to this court, as emanating from the trial, is the transcript of the trial judge's summation to the jury.

7 As a result of the failure to produce that transcript, Mr Jack, in his renewed application, has supplemented his original proposed grounds of appeal with other grounds, which he sought leave to argue. Those supplemental grounds complain about the fairness of the appellate process, and breaches of his constitutional right to a review of his conviction within a reasonable time.

8 During the course of the application for leave to appeal, Mr Jack also sought leave for permission to adduce his affidavit, filed on 30 April 2021, as fresh evidence, before the court. The court granted the application and considered the affidavit, except for certain portions, which, for various reasons, were ruled inappropriate for these purposes.

The prosecution's case

9 In light of the decision that the court has made in this case, it is unnecessary to provide more than a broad outline of the prosecution's case against Mr Jack.

10 The child's evidence, as gleaned from the summation, is that on 6 May 2011, at about 10:00 pm, she went to the bathroom of the house, in which she lived with her mother, to use the toilet. While there, Mr Jack, who lives in the same yard, approached her and spoke to her. She walked out of the bathroom but he pulled her back in, turned off the light and assaulted her. When he was finished, he told her not to tell anyone, for if she did, he would go to prison and she would have to go to “Council”. The following day he spoke to her in the yard outside the house and asked her if she wanted to do it again. He also asked her if she had told anyone.

11 On 11 May 2011, she spoke to her guidance counsellor at school. As a result of that discussion the child's mother was called into the school. Both the mother and the guidance counsellor gave evidence as to what the child said to each of them, although there is some uncertainty as to whether the reports were made on separate occasions. The evidence was admitted on the basis that the child's statements to them constituted a recent complaint.

12 There were some discrepancies and inconsistencies in the prosecution's case that would have had to have been carefully assessed by the jury.

The case for the defence

13 Mr Jack gave an unsworn statement in which he denied interfering with the child. He said that he went home that evening, gave a hot dog to the child, and two to her mother, cooked dog food, and left the premises. He said that he did not return home until 11:00 pm. He called a witness to testify as to his good character. The child's mother also said, in evidence, that Mr Jack was kind.

The delay in the hearing of the appeal

14 The delay in having the appeal heard was not restricted to issues with the record of the evidence. The transcript of the summation also had difficulties. The summation that was produced is said to be a combination of the court reporter's notes as well as some notes from the trial judge's notebook, because of deficiencies in the former. The transcript of the evidence at the trial has not been delivered because the court reporter who took those notes left the service without producing them. There were also technical difficulties in recovering the material from the recording media. The full transcript will never be available.

The submissions

15 Mr Williams, appearing in this court for Mr Jack, supplemented those proposed grounds of appeal with the complaints that the delay in having Mr Jack's appeal heard, and the failure to produce the transcript of the evidence adduced at the trial, amounts to an abuse of the process of this court. That abuse, Mr Williams submitted also resulted in a breach of Mr Jack's constitutional right to a review of his conviction within a reasonable time. Learned counsel submitted that the absence of the transcript of the evidence prevents this court from conducting a fair assessment of Mr Jack's conviction. The only appropriate remedy for the constitutional breaches and the abuse of process, Mr Williams urged, is to quash the convictions and sentences and to enter a judgment and verdict of acquittal.

16 Mrs Robinson, for the Crown, argued that the transcript of the trial judge's summation provides a sufficient record to enable this court to deliberate and decide on the validity of Mr Jack's conviction. The transcript, learned counsel submitted, shows a careful summation, which accurately identified the relevant issues for the jury, and correctly communicated to the jury the relevant law relating to each of those issues. Those issues included, learned counsel submitted, identification, credibility, recent complaint, discrepancies, inconsistencies, alibi and good character. Mrs Robinson contended that the sentence for carnal abuse was longer than it should properly have been, but argued that the conviction should not be disturbed.

17 The court had the benefit of written submissions from the Attorney General, who was not able to have counsel appear at the hearing of the application for leave to appeal. The Attorney General argued that this court is not the correct forum for treating with the issue of redress for breaches of constitutional rights. The appropriate procedure, the submissions assert, is an application to the Supreme Court, pursuant to section 19(1) of the Constitution. Additionally, the submissions continued, in the event that the court found that there was inordinate delay, quashing the conviction is not the appropriate remedy.

The analysis

18 The essential backdrop to the analysis of Mr Jack's complaints is a reference to the subsections (1), (7) and (8) of section 16 of the Constitution of Jamaica. Section 16 is part of the chapter of the Constitution called, “the Charter of Fundamental Rights and Freedoms” (‘the Charter’).

19 Section 16(1) of the Charter speaks to the right to a hearing within a reasonable time. It states:

“Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”

The term “hearing” has been accepted as incorporating, not only trials, but also postconviction proceedings. That interpretation was established even before the promulgation of the Charter. The Privy...