The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE Court of Appeal yesterday affirmed the conviction of Dwight Major, who was found guilty of several drug related offences over a decade ago.

In 2001, Major was charged with conspiracy to import 16 kilos of cocaine and conspiracy to possess the drugs contrary to the Dangerous Drugs Act. Two years later in May 2003, he was convicted of one count of conspiring to import cocaine and another count of conspiring to possess the same with the intent to supply.

At the time, the prosecution made an application under section 9 of the Proceeds of Crime Act to seize his assets. However that matter was not ruled on until November 2007 and the magistrate then sentenced Major to five years in prison pursuant to the conviction under the Dangerous Drugs Act.

According to court documents, Major later appealed his conviction and sentence on the grounds that the magistrate “breached” his rights under Article 20 of the Constitution when she “continued to preside” over his case despite a decision of a Supreme Court justice who ordered that the matter be heard by another magistrate.

Major also argued the magistrate failed to allow a fair trial within a reasonable time by failing to pass sentence upon him until four and a half years after he was convicted.

Yesterday, Justices Sir Michael Barnett, Jon Isaacs, and Roy Jones dismissed his appeal after ruling that “no miscarriage of justice” occurred in the case.

In his judgement, Sir Michael noted the magistrate could not “recuse herself on the basis alleged by the appellant after the Court of Appeal had directed her to complete the matter.” He also said someone seeking to appeal their conviction could not rely upon jurisdiction as a ground of appeal unless they intended to raise the “jurisdictional objection before the magistrate herself.”

“There is nothing before this panel to indicate that after the ruling of this court in September, 2002 did the appellant raise any objection to the jurisdiction of the magistrate to complete this matter,” he stated.

“Relative to the grounds of delay, the combined effect of sections 9 and 12 (Proceeds of Crimes Act) obliges a magistrate to delay sentencing pursuant to a conviction until the determination of the section 9 application. The language of section 9 is clear: ‘A person shall, in addition to any penalty prescribed by any law for that offence, be liable at the time of sentencing in respect of that conviction to have a confiscation order made against him relating to the proceeds of drug trafficking’. Before a confiscation order can be made, the procedure under section 12 must be complied with by the prosecution, defendant and the court. There is an inherent delay between conviction and sentencing under this procedure.”

Likewise, in his judgement, Justice Isaacs noted that “unlike the Supreme Court”, magistrates did not have the “statutory authority to backdate a sentence so that the sentence could take effect before the date of conviction.”

“Section 186(2) of the Criminal Procedure Code provides that authority to a justice of the Supreme Court,” he explained. “The sentences imposed by the magistrate could not commence on a date prior to November 12, 2007. I am unable to perceive any injustice inuring to the appellant in the circumstances if the sentences were not quashed. He had been convicted of serious drug offences and was deserving of the court’s condign punishment. The terms of imprisonment imposed by the magistrate were not unduly harsh or severe. In the premises, this would have been an appropriate case for the application of the proviso to section 15(2) of the Court of Appeal Act because no miscarriage of justice has actually occurred.”

Major was also extradited to the United States in 2008 to serve time for another offence. He has completed that sentence.