Stephen Francis v R

• Jurisdiction: Jamaica
• Court: Court of Appeal (Jamaica)
• Judge: Brown, J.A.
• Judgment Date: 25 July 2025
• Neutral Citation: JM 2025 CA 56
• Year: 2025
• Docket Number: Criminal Appeal No. 82/2014

Stephen Francis

and

R

Williams, J.A.; Simmons, J.A.; Brown, J.A.

Criminal Appeal No. 82/2014

Court of Appeal

Appearances:

Oswest Senior-Smith for the appellant.

André Wedderburn, Mrs. Dainty Davis and Kemar Setal for the Crown.

Brown, J.A.

1 This appeal challenged the sentences imposed by the trial judge and complained that they were manifestly excessive. The appellant also sought constitutional redress in the form of a reduction of the sentences for alleged breaches of his right to be provided with the record of the trial proceedings and to the hearing of his appeal within a reasonable time.

2 On 8 July 2023, we heard the appeal and, after due consideration, we made the following orders:

• “1. The appeal against sentence is allowed.

• 2. It is hereby declared that the right of the appellant under sections 16(1) and 16(8) of the Constitution of Jamaica to be afforded a fair hearing within a reasonable time has been breached by the excessive delay between the date his sentence was imposed and the hearing of his appeal.

• 3. It is hereby declared that the right of the appellant under section 16(7) of the Constitution of Jamaica to be given for his own use, within a reasonable time after judgment, a copy of the proceedings made by or on behalf of the court, has been breached by the excessive delay in the production of the transcript of the notes of evidence and summation.

• 4. The sentence of 15 years' imprisonment for illegal possession of firearm is set aside. A sentence of six years and 10 months' imprisonment is substituted therefor, credit of one year and two months having been given for time spent in pre-trial custody and a reduction of two years having been granted for the breaches of the appellant's constitutional rights.

• 5. The sentence of 15 years' imprisonment for robbery with aggravation is set aside. A sentence of eight years and 10 months' imprisonment is substituted therefor, credit of one year and two months having been given for time spent in pre-trial custody and a reduction of two years having been granted for the breaches of the appellant's constitutional rights.

• 6. The sentences are to run concurrently and are to be reckoned as having commenced on 25 July 2014, the date on which they were imposed and are to run concurrently.”

3 On that date, we promised to put our reasons in writing. We now fulfil that promise.

BACKGROUND

4 The appellant was tried by a judge alone (‘the learned judge’) on an indictment which charged him in consecutive counts for the offences of illegal possession of firearm and robbery with aggravation, in the High Court Division of the Gun Court, between 19 May and 13 June 2014. He was found guilty on both counts. On 25 July 2014, the learned judge sentenced the appellant to concurrent terms of 15 years' imprisonment on each count.

THE TRIAL

5 The prosecution's case was that, on 2 June 2012, the appellant was the driver of a motor car being operated as a taxi. The complainant boarded his taxi at the Portmore bus stop, in Half Way Tree, for him to take her to Three Miles. He drove off with her as the sole passenger. A short while after he drove off, he stopped at a location and picked up a man, whom he greeted in a friendly manner, according to the complainant. The man sat in the back, he passed a firearm to the appellant, and they held up and robbed the complainant of a camera and the contents of her handbag. Her handbag contained, amongst other things, a dress, an unspecified amount of cash and a cellular telephone. The complainant later jumped from the taxi whilst it was in motion.

6 The complainant made a report to the police. The appellant was seen shortly after driving the same taxi. He was apprehended and searched by the police. During the search, two cellular phones were taken from his pants pocket, one of which belonged to the complainant. When cautioned in relation to the offences, the appellant denied robbing the complainant.

7 The appellant gave sworn evidence at the trial, and he gave a different account from the complainant as to what transpired. Based on his account, both he and the complainant were the victims of a man posing as a passenger, who brandished a gun when he tried to collect his fare. This man, he said, instructed him where to go, and he complied, because the man had a gun.

THE APPEAL

8 On the date he was sentenced (27 August 2014), the appellant applied for leave to appeal against his sentence only. His application for permission to appeal was considered and granted by a single judge of this court on 27 September 2022.

9 Before us, the appellant applied for and was granted permission to abandon the original grounds of appeal and to argue in substitution two supplemental grounds against sentence. The supplemental grounds argued were:

• 1. The appellant's right under section 16(1), 16(7) and 16(8) of the Jamaica Constitution have been abrogated.

• 2. The imposed sentences were manifestly excessive.

10 The appellant sought the following orders:

• (A) Constitutional redress.

• (B) That his sentence be reduced.

• (C) Such further and other relief that this Honourable court deems just.

THE FRESH EVIDENCE APPLICATION

11 On 28 July 2023, the appellant filed an application to adduce fresh evidence in support of his appeal and for constitutional redress. The fresh evidence was contained in an affidavit filed along with the application, in which the appellant outlined the delay in having his appeal heard, because the transcript was not produced until 2022 and the consequences that flowed or the prejudice that resulted.

12 We granted the application to adduce fresh evidence and reviewed the affidavit evidence. The contents of the affidavit will be summarised immediately below.

SUMMARY OF AFFIDAVIT EVIDENCE

13 In his affidavit, the appellant stated that the sentence was imposed on 25 July 2014, and he began serving his sentence. However, he considered the sentences to be overly long, and so, on 27 August 2014, he applied for permission to appeal the sentences principally on the basis that they were harsh and excessive.

14 He averred that, since that time, he has been awaiting the hearing by this court in relation to the sentences imposed. The hearing was, therefore, in abeyance until 2022, when the transcript of the trial was produced. During those approximately eight years (2014 to 2022), he experienced agony, according to his affidavit.

15 He labelled the eight years to produce the transcript as “egregious delay” and complained that no credible reason had been advanced for it. He averred that his right to receipt of the transcript of the trial was “trampled” and his entitlement to a fair hearing within a reasonable time was breached. This, he asserted, had unfairly and adversely impacted his potential early release from incarceration, and also severely prejudiced his welfare.

16 He complained that although he upskilled and acquired certification in anticipation of resuming a reformed life with his children and family, the delay deprived him of the potential early resumption of family life and reintegration into society. He went on further to assert that the inexplicable wait was inordinate, oppressive, unreasonable and caused him excruciating anxiety and concern, resulting in impairment of his well-being. He sought redress on the basis that he has suffered incertitude for that number of years.

GROUND 1

17 Ground one concerned a claim for breaches of his constitutional rights pursuant to subsections (1), (7) and (8) of section 16 of the Charter of Fundamental Rights and Freedoms (‘the Charter’) to have his appeal heard within a reasonable time.

APPELLANT'S SUBMISSIONS

18 The appellant argued that there was an eight-year delay between his sentencing and the provision of the notes of evidence and summation. The appellant contended that the sentences imposed were manifestly excessive and that the delay in the provision of the transcript of the trial egregiously impacted his constitutional guarantees. It was also submitted that the lapse was inexcusable and irreconcilable.

19 The appellant relied on the cases of Orville Watson v. R [2023] J.M.C.A. Crim. 25, Evon Jack v. R [2021] J.M.C.A. Crim. 31 and Melanie Tapper v. The DPP [2012] U.K.P.C. 26 in support of this ground.

20 In oral submissions, the appellant pointed out that this ground is a separate basis for the reduction of his sentence from the bases argued in ground 2. It was submitted that the appellant had provided adequate evidence that his constitutional right for the sentence imposed to have been reviewed by this court within a reasonable time has been abrogated by the inordinate delay of eight years, due to the unavailability of the transcript. The appellant sought a reduction in his sentence as the remedy for this breach and the opprobrium of the excessive delay.

CROWN'S SUBMISSIONS

21 The Crown conceded that the applicant's rights under sections 16(7) and (8) of the Charter had been breached.

22 Having conceded that there was a breach of the appellant's constitutional rights, the Crown focused on the remedies available and, in particular, the power of this court to quash the conviction. The Crown argued that the cases of Watson v. R and Evon Jack v. R are distinguishable, as the transcripts produced in those cases were incomplete, and this court had concluded that crucial aspects of the trial necessary for its assessment were absent, and so the convictions were quashed and no re-trial was ordered, in both cases.

23 The Crown cited Brooks, P.'s judgment in Evon Jack v. R, where he cited the Privy Council's decision in Tapper v. DPP and highlighted the principle established in that case that the quashing of a conviction would not be the normal remedy for even a case of extreme delay. The court's attention was also drawn to Brooks, P.'s reference to a passage from Attorney General's Reference...