All Woman

Expunging a criminal record

Margarette Macaulay

Monday, August 25, 2008    

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Dear Mrs Macaulay,

I was arrested and charged for assault which I did not commit. I pleaded not guilty and the matter was sent to court.

I was later found guilty even though there was no medical report to prove the assault and fined $10,000 or six months in jail. I paid the fine, but I would like to know, would a record be made and if yes, is there a process I can go through to get it expunged?

Dear Convicted Person,

Thank you for your letter. It is unfortunate that you were convicted for an offence which you say you did not commit. A medical report is not a vital piece of evidence in determining the guilt or innocence of a person accused of an assault. It is at best corroborative of the Complainant's evidence and may be helpful in weighing what kind of sentence ought to be imposed for the offence following a finding of guilt. You might therefore have been lucky that no medical report was available or not as the case may be.

The evidence needed for the verdict is that of the Complainant with a witness if any, in support, and you in your defence with or without a witness in support of your evidence. Oral evidence on oath is the best evidence.

If the Complainant was examined medically after the assault, you could have requested that a subpoena be issued on your behalf for it to be produced for you to use and rely on in your defence. You would have to have known that the medical report differed from the evidence given by the complainant. This would prove that the evidence given by the Complainant was untrue, that consequently that person should not be believed. This could lead to an acquittal. But, you say you did not assault the person, so you supposedly could not know about the injuries.

Anyway, you were convicted and you obviously did not appeal against your conviction, so it stands.

You did not say when you were convicted, but I assume that it was recently. This is very relevant to the answer to your question. You see the relevant law specifies the type of sentences and the length of time which must pass in order to fall within it's ambit.

The relevant law is The Criminal Records (Rehabilitation of Offenders) Act 1988 and subsequent amend-ments thereto. This law applies to your circumstance because your sentence was a fine of $10,000.00 or six months imprisonment. This being an alternate prison term to the fine means, as specified in the Act, that the term of imprisonment is disregarded and only the fine is relevant.

If it was not a disregarded term, you would still fall within the operation of the Act but your period of rehabilitation required would be greater.

So, as your relevant sentence is only the fine, the Act requires that the period of rehabilitation of three years must have passed from the date the sentence was imposed before you can qualify to apply for your conviction to be expunged from the Criminal Records Office in Jamaica.

If three years have passed since you were convicted and sentenced, (if not you must wait out this period) and you do not in this period suffer any further conviction for another offence, you can to the Criminals Records (Rehabilitation of Offenders) Board at the Ministry of Justice. You have to get the application form from the ministry and you will need an up-to-date Police Record with your fingerprints to accompany the form. In it you will have to insert all the details of your conviction, the court you were tried in and your sentence.

You will have to also name some referees also well as other particulars required of you. The ministry officials will explain all that you require, but your statutory period must have expired as I said for your application to be accepted. I hope the position is clear to you now.

Good luck.

Margarette May Macaulay is an attorney-at-law and a women's and children's rights advocate. Send questions and comments via email to allwoman@jamaicaobserver.com or fax to 968-2025.

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