The Court of Appeal came into being at the time of independence. The judges of this court exercise great care in reviewing the decisions of the lower courts and tribunals, against which complaints are made. We give reasons for all of our decisions, and invite the public at large to inform themselves of these reasons by accessing them on the website of the court. An informed public helps in the building of a strong nation.[http://courtofappeal.gov.jm/]
The Jamaican Judiciary takes special pride in arguing for its independence and rightly so. An independent judiciary is one of the last bulwarks the average citizen has against tyranny from the Government and injustice across the board.
Just in case a lower court gets it wrong the founders in their wisdom created the Appellate court as a second chance for another look, this time generally comprising of a three-member panel or more in some countries.
And in case they get it wrong in the opinion of the petitioner their is a final court of adjudication, in Jamaica’s case the Privy counsel In England.
Even as we celebrate the ventilation the tiered system of justice provides the petitioner, more and more nowadays, we are left to wonder whether the idea of a Judiciary which really does not answer to the voters is the correct way to go?
Sure the court says it follows a strict code of conduct.
But does it?
Let’s face it, people run afoul of the law, and yes when we fall we deserve a chance at redemption.
Over the years we have had just cause to wonder at the actions of the Jamaican court system, as it relates, not just to its attitude to the people’s cases before it, but as it relates to convicted felons who must pay their debt to society.
More and more the courts have usurped the will of the people,through the handing down of ridiculously low sentences for violent crimes or have lowered the sentence imposed by lower courts or worse.
Rather than adjudicate the courts seemed to have taken on the role of Defense counsel to some defendants.
Defendants who commit violent assaults on other human beings, or even on animals deserve to feel the full brunt of the nation’s laws.
It goes without saying then, that defendants who rape and murder have willfully and premeditatedly decided to violate their victims in the most egregious ways imiginable.
It is incredibly difficult for police to identify and arrest perpetrators of violent criminals due to a litany of factors.
On the rare occasions that they do manage to identify suspects and amass enough evidence to go to trial, there are other issues which militate against a conviction, not the least of which is a court system which grants inordinate amounts of adjournments to defense lawyers which helps inexorably to clog up the system and delay justice.
When cases slowly weave their way through the system to a conclusion which ends in a guilty verdict, it helps to give a morale boost to police and prosecutors who work to bring these cases.
More importantly, it gives some measure of closure to victims and their families who have been violated by defendants.
Those verdicts and the accompanying fair sentences are pillars of the democratic and safer societies all of us crave.
We hope that stiff sentences act as a deterrent to future criminals and gives those sentenced time to think about the pain they have caused others and the harm they have brought onto society.
THESE ARE THE ACTIONS OF THE COURTS WHICH ARE UNHELPFUL TO JAMAICA’S CRIME PROBLEM.
A man who raped a woman three times while holding her hostage inside her home for three terrifying hours has had his 40-year sentence slashed by 16 years.
The Court of Appeal, in a ruling handed down last Friday, ordered that Neville Barnes, 44, should instead serve 23 years and 10 months in prison for the June 2005 attack.
October 2, 2012 – the day the 40-year sentence was imposed – should be regarded as the date Barnes began serving his reduced prison term, the court also ordered.
The ruling provided disturbing details about the attack, during which the victim said Barnes told her: “I know what I am doing is wrong, but is just suh it guh in Jamaica.”
According to court documents, the woman testified during Barnes’ trial that she was awakened by a man entering her bedroom. She said that because her bedside lamp was turned on, she observed that the shirtless man was wearing a pair of navy-blue casual shorts and a pair of briefs drawn “half across his face”.
She gave evidence that her ordeal lasted for three hours and that the man, who she later pointed out to police investigators as Barnes, had sexual intercourse with her three times in different positions without her consent. He assaulted her and stole $3,000 before leaving, she said.
The court documents, which cited transcripts of the closed-door trial, revealed that at one point during her ordeal, the woman asked Barnes why he was raping her. “Because I choose you,” she said he responded.“The applicant (Barnes) commanded her to give him good loving like she gives her boyfriend. He also commanded her to say words to him in effect requesting him to have rough intercourse with her,” the ruling by the appeal court detailed.
“He demanded that she say the words louder when she did not do so loudly enough for him. He also asked her if she wanted him to impregnate her (using less forensic language),” it continued.
Further, the document revealed that Barnes asked the woman if anyone had ever performed oral sex on her and whether she wanted him to do it. “At some point, he also forced, or tried to force, his tongue into her mouth,” the document said.
He was charged with burglary, rape, and indecent assault arising from the attack and, by unanimous verdict, was found guilty of all three offenses following a trial in September 2012.
Barnes was sentenced by the High Court judge Marjorie Cole-Smith to 10 years in prison for burglary, 40 years for rape, and three years at hard labor for indecent assault.
However, Barnes, through his attorneys, challenged the convictions and sentences on the grounds that the presiding judge erred in her direction to the jury on the procedural fairness of the identification parade and that the 40-year term for rape was “manifestly excessive”.
The Court of Appeal, in explaining its decision, noted that the length of the victim’s ordeal and the fact that she was raped three times made the lowest starting point of 15 years in prison “inapplicable”. “We find a starting point of 18 years to be appropriate,” the court found.
The three-member panel added a further 15 years, citing the aggravating features of the case, including the trauma endured by the victim and the fact that Barnes had a previous conviction.“It is not unreasonable to infer that the whole experience must have caused the virtual complainant severe psychological trauma, although not much physical violence was used in this case,” the judges wrote, explaining the proposed sentence of 33 years in prison.
Barnes was credited with the seven years and two months he spent in custody awaiting trial and two years for the fact that there was no physical violence during the attack.[http://jamaica-gleaner.com/article/lead-stories/20190325/rapist-has-40-year-sentence-slashed]
This writer has systematically called for mandatory minimum sentences for violent offenses against the person.
Mandatory minimum sentences for certain violent crimes removes from wobbly judges the discretion to supplant the laws with their own feelings.
The Appellate court is supposed to hear the cases before it but is not obligated or required to change verdicts particularly if there have been no breaches of conduct by police and prosecutors.
The sentence of the lower courts is supposed to stand if there are no improprieties or new evidence from the accused.
Barnes, through his attorneys, challenged the convictions and sentences on the grounds that the presiding judge erred in her direction to the jury on the procedural fairness of the identification parade and that the 40-year term for rape was “manifestly excessive.”
That was a subjective argument which the defense had every right to make, but it does not mean that the trial judge was wrong in the sentence she handed down.
Barnes was credited with the seven years and two months he spent in custody awaiting trial and two years for the fact that there was no physical violence during the attack.
The three-judge panel demonstrated some common sense when they credited the defendant with time served. They also demonstrated common sense when they concluded that the length of the victim’s ordeal and the fact that she was raped three times made the lowest starting point of 15 years in prison “inapplicable”. “We find a starting point of 18 years to be appropriate,” they argued.
Then their rationale fell apart.
Barnes was credited with two years for the fact that there was no physical violence during the attack.
I wonder how either of, or all three of those judges would like to have their homes invaded by assailants who rape them not once, not twice, but three times before leaving?
The idea that a judge, much less three judges, could all be so intensely dunce to the fact that the absence of other forms of violence on a rape victim does not negate the egregious violence rape does to the body and soul of victims.
It is incomprehensible to understand how any judge could utter those words, much less make that argument at the appellate level for reducing the sentence of a convicted serial rapist.
The physical harm rape does to its victims is only a small party of the other issues victims are left with psychologically, mentally, emotionally and yes the idea that they may be impregnated by their assailant or worse, given an incurable venereal disease.
The Appellate court could simply have left well enough alone. Instead, it chose to interfere with the verdict the learned trial judge imposed on a deserving serial rapist.
But that was nothing compared to the fact that the Appellate court does not believe rape in and of itself is intrinsically violent act.