Zacca: Court of Appeal recordings not required by Privy Council
Court requests not met
Appellants have complained to The Royal Gazette about not being able to obtain audio and transcripts from the Court of Appeal. Heres what they were told after filing their requests:
l Former civil servant LeYoni Junos asked for two recordings of appeal hearings last year and was told by administrative officer C Lynell Simmons in a June 30, 2011 e-mail: Court of Appeal recordings are not available to anyone, as ordered by the president of Court of Appeal. It is just not provided.
Ms Junos replied: The recordings of my last two appeals before the Court of Appeal were provided to me on payment of monies, without any issue or reference to any such order or policy.
Can you please send me a copy of the order of the president or practice direction which has suddenly restricted the availability of the recordings to the parties? This seems to be most irregular.
Ms Simmons replied: It is not an irregular practice for Court of Appeal hearings not to be recorded and, if recorded, not to be provided to parties or the public. If you received any Court of Appeal recordings, it was provided in error.
The president ordered the system to be turned off during session.
l Businessman Dilton Robinson, after requesting a court recording, was told by Ms Simmons in an e-mail dated September 1, 2011: Disks and transcripts of the Court of Appeal hearings are not provided and are used for court purposes only, as directed by the president.
Mr Robinson asked: Under what authority or rule has the president issued this directive? Also, what reason has he given for such a directive? Ms Simmons replied: You dont understand. The answer to your question has been given as far as possible.
She wrote in a later e-mail: I have been instructed that you were in attendance on the day(s) in question and heard all that the justices had to say. There is no need for any clarification of what took place in the courtroom.
l Litigant Robert Moulder requested CDs from the Court of Appeal and was told by Ms Simmons in an e-mail on October 20, 2011: As you were notified previously, the president has said that Court of Appeal recordings are not to be transcribed.
l Larry Marshall Jr, of anti-conscription group BAD, was told a recording was not made of a hearing he was involved in last November.
Charlene Scott, registrar of the courts, wrote in an e-mail dated November 16, 2011: There were no recordings of the hearing that took place on November 7 and, as a result, no disk can be made for the same.
Asked by Mr Marshall Jr if there was a written transcript available, Ms Scott replied: The answer to your question is no. I repeat the contents of the email which pertains to both written and audio transcripts.
Ms Scott later told this newspaper: The Court of Appeal hearing was not recorded, as per the presidents instructions. The president makes a decision on how to run his court.
The judges note is the official record, unless otherwise indicated. It is the president's discretion as to whether there will a recording or not. There is no law I can refer to; just that it is a given that all judges can decide how best to run their respective courts.
The president of the Court of Appeal has spoken out about why he has ordered proceedings in his courtroom not to be recorded, despite it being standard practice in the UK.
Edward Zacca, in a joint statement with Charlene Scott, the registrar of the courts, told The Royal Gazette that transcripts of Court of Appeal hearings were not required by the Privy Council, so appellants wanting to appeal decisions in the higher court were not at a disadvantage.
The statement said: Since 2010, there were 94 appeals listed and the Court of Appeal has heard 88 appeals. Of those, approximately nine appeals were taken by the appellant to the Privy Council.
No recordings or transcripts were ever requested by the Privy Council for the hearing that would take place before them. The absence of a recording of the hearing of the appeal does not in any way affect or hinder the hearing before the Privy Council.
This newspaper has previously reported complaints from appellants who have been unable to get audio or transcripts from hearings they were involved in at the Court of Appeal.
We also reported that the Court of Appeal in the UK follows a practice direction that proceedings will be tape recorded unless the judge directs otherwise.
Press officers at the Judicial Office in London said it was standard practice for hearings there to be recorded and for transcripts to be made available for a fee.
Former civil servant LeYoni Junos, businessman Dilton Robinson and members of Bermudians Against the Draft were all told by Court of Appeal staff in Bermuda that their hearings were either not recorded or were recorded but tapes and transcripts would not be provided.
A fourth complainant, Robert Moulder, shared with this newspaper an e-mail sent to him from an administrative officer at the court after he asked if it was possible to obtain transcripts.
The officer, in a message dated October 20, 2011, told Mr Moulder: The president has said that Court of Appeal recordings are not to be transcribed.
Mr Moulder, who is embroiled in a long-running legal battle with neighbours in Sandys over a piece of land and a right of way, said it made no sense that he couldnt obtain a transcript of hearings he was involved with which were recorded on the available CourtSmart system.
What we have is a totally unfair system, alleged Mr Moulder, who has been representing himself in court. He claimed those who represent themselves, rather than instructing a lawyer, are treated differently by the court system.
The statement from Mr Justice Zacca and Ms Scott said: It is not correct to say that there are recordings in the Court of Appeal to be transcribed.
As the final court of jurisdiction on this Island, unlike the Supreme Court, which hears oral evidence, the Court of Appeal hearings are not recorded.
If there is an appeal to the Privy Council, and leave is granted, the only documentation from the [court] registry forwarded to the Privy Council is a copy of the record of appeal that was before the Court of Appeal and the judgment of the court.
Nothing else is required by the Privy Council. Counsel provide their own submissions to the Privy Council.
The statement continued: If the public wishes to attend a Court of Appeal hearing, they are welcomed. Except for an in camera (in private) hearing, there is nothing stopping anyone from attending and listening to the various deliberations argued before the Court of Appeal.
Appellants/respondents can make their own notes against the submissions provided by the opposing side.
The Islands Court of Appeal sits three times a year and hears appeals from the Supreme Court. Its decisions can only be overturned by the Privy Council in London, which is Bermudas highest court of appeal.
Mr Justice Zacca and Ms Scott said appellants or respondents needing audio discs from Supreme Court hearings could request them before their case reached the Court of Appeal.
Former Governor Sir Richard Gozney previously told this newspaper it was not mandatory for Appeal Court cases to be recorded in Bermuda.
Attorney General Kim Wilson declined to comment, while Chief Justice Ian Kawaley said: Under the Court of Appeal Act 1964, the president of the Court of Appeal lays down the procedure to be followed by that court.
This newspaper asked Bermuda Bar Council president Delroy Duncan to comment on the issue on behalf of the Islands lawyers but he did not respond to e-mails and telephone calls.