No case to answer after 2½ years in jail

A man held behind bars for more than 2½ years on cannabis charges has been set free after the Supreme Court ruled that his constitutional rights had been breached.

Assistant Justice Delroy Duncan ordered the retrial of Dennis Robinson be stayed after he found the defendant’s right to a fair hearing within a reasonable time had been breached by repeated delays.

But the retrial of his co-accused — Rebecca Wallington, who was on bail for the period Mr Robinson was in custody — will go ahead.

Mr Robinson and Ms Wallington were arrested on November 15, 2016 and charged with the possession of 418.7 grams of cannabis. Ms Wallington was charged also with simple possession of 4.93 grams of the controlled drug.

Mr Robinson, who had been released on licence by the parole board not long before his arrest, was recalled and put into custody until the matter could be resolved.

Both denied the charges against them in February 2017, with Shawn Crockwell hired to serve as their lawyer.

Their trial was due to start in June 2017, but the trial was set back and Victoria Greening replaced Mr Crockwell as counsel.

The trial was set back repeatedly, with trial dates in October 2017 and January 2018 being passed before the trial began in Magistrates’ Court on May 31, 2018.

The last of the evidence was heard the next day, but closing statements were not heard until July, with the decision to be handed down in August.

Magistrate Archibald Warner said he would release a judgment in October after a delay, but on October 5 he recused himself from the case because of a conflict.

A retrial before a new magistrate, Khamisi Tokunbo, was set for January 2019, but before it was heard, lawyers for the defendant raised constitutional concerns that the delay had breached the rights of the defendants.

Mark Pettingill, who represented the defendants with Ms Greening, argued Mr Robinson had been in custody for longer while waiting for his trial than he would have been had he been convicted and sentenced.

Mr Pettingill said Mr Robinson would have faced a maximum sentence of about 12 months, but Tanaya Tucker, for the Attorney-General’s Chambers, said an appropriate sentence would be between 18 months and two years.

When the Supreme Court hearing began in May, Mr Robinson had already been in custody for two years and six months.

While Ms Wallington was not in custody, it is argued her bail conditions had affected her life, too.

“Although on bail, she has been unable to visit her young daughter in the UK or have surgery overseas on her back,” Mr Pettingill said.

Mr Justice Duncan, who presided over the Supreme Court hearing, said in his September 13 judgment that the case did not appear to be complex.

He said the timeline of events did not suggest the plaintiffs or their counsel attempted to delay the trial.

He found that Mr Robinson and Ms Wallington had suffered an “unreasonable delay” in their prosecution and their right to a fair trial within a reasonable time had been broken.

In the case of Ms Wallington, he said: “Although the anxiety she has suffered pending the outcome of her charges is a relevant factor of prejudice, such prejudice as she has experienced can be mitigated in the remedy the trial court can impose at the conclusion of the criminal proceedings — for example, by way of reduction of sentence.

“For this reason, despite my decision that [Ms Wallington]’s constitutional right to a fair trial had been breached, I do not order that her retrial be stayed or discontinued.”

But Mr Justice Duncan found that the more than two years that Mr Robinson had served behind bars made his case different.

He said the breach could not be rectified by a reduced sentence if Mr Robinson was convicted.

Mr Justice Duncan said: “In my view, the traditional remedies are not sufficient to address the situation [Mr Robinson] faces.

“I accept Mr Pettingill’s submission that expedition of the trial and reduction of sentence cannot compensate for the fact that he has been in custody for two years and seven months for a matter for which he would traditionally have been released on bail.”

UPDATE: An earlier version of this story used the name of “Rebecca Watlington” instead of “Rebecca Wallington”. We apologise for the error.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases. As we are legally liable for any libellous or defamatory comments made on our website, this move is for our protection as well as that of our readers.

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