Months have passed since the lawyers for Sam Hinds Jnr and Bishnarine ‘Sanjay’ Persaud appealed their sentences but dates for their hearings are yet to be set.
The Full Court, which will hear Hinds’ matter, and the Court of Appeal, which will hear Persaud’s matter, are not to be blamed as neither court has been furnished with the records of the magistrate court’s proceedings. Given the lengthy period which has passed, there has been a clear violation of what is outlined in the Summary Jurisdiction (Appeals) Act and this raises concerns about the continued violations being committed by court clerks.
Sections 7, 8 and 13 of the Act clearly outline what ought to occur with respect to court records to be used in appeal matters and the transmission of same to the higher courts.
According to Section 7, “ Immediately on receiving a notice of appeal or notice of the grounds of appeal, or on any security being given, the clerk shall make an entry of the fact and the time of the receipt in a record book to be kept for that purpose, and shall inform the magistrate of the fact.”
Section 8 goes on to explain that, “(1) On compliance by the appellant with the requirements of sections 4 and 5, the magistrate shall draw up a formal conviction or order and a statement of his reasons for the decision appealed against.
“(2) The statement shall be lodged with the clerk, who shall forthwith, and at latest within twenty-one days of the receipt thereof, prepare a copy of the proceedings including the reasons for the decision, and when the copy is ready he shall notify the appellant in writing and, on payment of the proper fees, deliver the copy to him.
“(3) The appellant shall, within fourteen days after receipt of the notice, draw up a notice of the grounds of appeal in Form 3, and lodge it with the clerk and serve a copy thereof on the opposite party. Section 4(2) shall apply to a notice of the grounds of appeal.”
Further, Section 13 states, “(1) Within seven days of the notice of the grounds of appeal being lodged the clerk shall transmit to the Registrar a copy of the record, duly certified under his hand, consisting of the complaint or information and plea, or the plaint and defence, as the case may be, the notes of evidence taken in the cause and the adjudication, the formal conviction or order, the notice of appeal if it is in writing, and the notice of the grounds of appeal, the recognisance, if any, all documentary exhibits and all other documents connected with the cause, including the magistrate’s statement of his reasons for the decision.
“(2) On receipt of the copy of the record as above, the Registrar shall notify the appellant in writing of the fact, and the appellant shall, within ten days of the notice, prepare and lodge with the Registrar three additional copies of the record for the use of the Court at the hearing of the appeal, and thereupon the Registrar shall enter the appeal in the list for hearing.”
Lawyers for Hinds and Persaud gave notice of appeal shortly after they were sentenced on October 23, 2015 and October 9, 2015, respectively, in the Georgetown Magistrate’s Court.
As a consequence, Persaud, who was sentenced to 58 months for causing the death of a cyclist by dangerous driving, was refused bail by Magistrate Judy Latchman after his lawyer made an application on his behalf. He then went to the then acting Chief Justice Ian Chang and that too failed. Justice BS Roy of the Court Appeal later heard the application and granted bail in the sum of $500,000, after his lawyer cited what he said was his client’s life-threatening illnesses.
Hinds Jnr was almost immediately released on $50,000 bail by Magistrate Annette Singh after being sentenced to two months imprisonment for unlawful wounding of his sister-in-law.
Hinds, son of former Prime Minister Samuel Hinds, was found guilty of threatening and wounding his sister-in-law Tenza Lane months before, but there were extensive legal deliberations over the sentencing.
Following inquiries recently, Stabroek News was told that the magistrate’s court records regarding Persaud’s case were only last week sent to the High Court Registrar. The records will then have to be sent to the Court of Appeal, which will be hearing the matter since Persaud had faced an indictable charge, which was disposed of summarily.
A source close to this case insisted that the delay in the transmission of the records was the fault of the Magistrate’s Court. According to the source, this adds further frustration to the parties involved as when the records reach Court of the Appeal a date will be set only after consultation among the judges.
Stabroek News was told that sometimes it is simple things that cause the situation to continuously occur and the delays in appeals being heard have become a trend in Guyana.
“They (the clerks) have to compile all the notes of evidence and exhibits; that everything is done at the Magistrate’s Court and forwarded to the registrar. When it goes to Court of Appeal, those records then have to be checked to ensure that they are in order and once everything is in order, notice for the first hearing will be sent out,” the source explained.
The source stressed on the lengthy delays in the sending of court records to the Court of Appeal so that appeal matters could be heard quickly. Because of these delays, matters are not heard within a reasonable time, resulting in a backlog.
With regards to Hinds’ appeal, Stabroek News was told that the records have not reached the office of the Chief Justice and, therefore, no date has been set. Since Hinds’ matter was a summary one, it has to be heard by Full Court. It is in this regard that the records would have to be sent to the Chief Justice’s office. If necessary, the matter can be taken to the Court of Appeal if the results are not satisfactory. If Hinds had not appealed his sentence, he would have already served his time behind bars.
Meanwhile, a legal source, who preferred to remain unnamed, said that the Clerks of Court continue to flout what is outlined in the law. The source said that the shortage of staff or a heavy workload cannot be used as an excuse for violation of the law. According to the source, if these are the issues which are affecting the transmission of court records to the Court of Appeal, then the onus is on the judiciary to rectify the situation immediately.
It was noted that this is the main reason why appeals take years to be called for the first time and this is an unfair and unjust situation.
“Under the legislation, the clerk has 21 days to do this then he must notify the appellant that the records are ready,” the source said, while adding that after uplifting the records the appellant has 14 days to file the grounds on which he is appealing the magistrate’s decision.
