Court of Appeal rejects request for return of boat on which cocaine was found | News

The Court of Appeal, in refusing to order the return of a boat which had been confiscated after the discovery of cocaine on board, regretted that 17 years had passed since the applicant took steps to quash the order .

The delay was due to the non-production of records at the Kingston and St Andrew Parish Court since January 2007.

In dismissing the application, the court upheld a preliminary objection from Crown attorneys Donnette Henriques and Afreya Cox that the application should have been made under the Judiciary (Appellate Jurisdiction) Act (JAJA) instead as well as the Dangerous Drugs Act.

Mark Archer, the boat’s owner, had filed an appeal for an expedited hearing in August 2023 against the confiscation order made in the parish court in 2007.

Orders were made by the Court of Appeal on December 4, 2023 for the Court Administrator of the Parish Court to require the Court Clerk to transmit to the court by December 18, 2023 relevant documents for the Archer case to be heard quickly.

The boat, known as Dolphin Lady, a 60-foot fishing trawler, was searched by police with the assistance of the Jamaican Coast Guard in February 2005. A bucket containing eight packages of cocaine was found on the boat. bridge. Eight men were on board at the time and one of them admitted that the packages belonged to him.

All the men were later arrested and charged, but seven of them were released after the man who admitted the packages belonged to him pleaded guilty in court.

On February 17, 2005, Archer, through his attorney Ernest Davis, petitioned the Parish Court for the release of the boat and its cargo of fish weighing 6,000 pounds. Archer said he didn’t know drugs or anything illegal was on the boat. The application was heard at Kingston and St Andrew Parish Court and was refused on 21 February 2005.

After one of the eight men pleaded guilty to drug-related charges on March 30, 2005, the parish judge signed a forfeiture order under the Dangerous Drugs Act. The order noted that the application to forfeit the boat was made on behalf of the Crown by the court registrar. Archer filed another request in April 2005 for the order to be revoked, but it was denied on January 5, 2007.

“It is regrettable that some 17 years have passed since the applicant embarked on a process to quash the order of the Resident Magistrate so that the vessel could be released. It is truly glaring that this delay was largely due to non-production of the record of the proceedings before the court below,” the court lamented.

The court pointed out that the application before the court was that the hearing of the application should be treated as the hearing of the appeal so that the Dolphin Lady could be released.

“There is no proper appeal before us and, as such, we have no choice but to refuse the application,” the court comprising Justices Paulette Williams, Evan Brown and Kissock Laing.

Counsel for the respondents argued that Archer filed his motion under bad law and failed to properly invoke the court’s jurisdiction to have the matter heard and decided.

It was further submitted that the applicant was not a defendant before the court for the offenses which gave rise to the application under section 24(2) of the Dangerous Drugs Act and that he therefore did not have standing to make an application under section 293 of the Act. They further argued that the application should have been filed under section 29(1) of the JAJA.

Lawyers for John Clarke and Isat Buchanan who represented Archer had argued that the applicant was not a convicted person nor was he seeking to exercise Her Majesty’s mercy and therefore could not request that the case be returned to the Court of Appeal by virtue of the availability of the JAJA. The lawyers argued that, based on the special statutory jurisdiction of the Resident Magistrate (now Parish Judge), the plaintiff would have an interest in the boat and that if aggrieved by the order or final judgment, he could make an application under section 293 of the Dangerous Drugs Act.

The court referred to the case of Bertram Sears v DPP, a case similar to that of Archer in which an application to the Governor General was remitted to the Court of Appeal for a rehearing under section 29(1) of the JAJA. The relevant section gives the Governor General the power to refer applications to the Court of Appeal.

In denying the requested orders, the court encouraged the plaintiff “to promptly take the necessary steps to properly address this court.”

-Barbara Gayle

Follow The Gleaner on X and Instagram @JamaicaGleaner and on Facebook @GleanerJamaica. Message us on WhatsApp at 1-876-499-0169 or email us at [email protected] or [email protected].