The Appeal Court on Friday refused to disturb the conviction and sentence of a man serving life for a 2011 murder and said it would only apologise for breaching his constitutional rights due to a six-year delay in the appellate process.

The man, Dwayne Smith, otherwise called Chad, was found guilty of of the murder of Clive Palmer following a 2019 jury trial in the Home Circuit Court and sentenced to life imprisonment with eligibility for parole after a minimum of 20 years.

According to the evidence led during the trial, in August 2011 Smith, along with another man, went to a house at McCook’s Pen in St Catherine where Palmer lived. Palmer, who was sitting under an apple tree in the yard at the house among a group of four men, was shot dead by Smith. Two main witnesses identified Smith as the perpetrator. The prosecution also presented medical evidence and evidence from police.

Attorney John Clarke, representing Smith during his appeal, held that his client’s conviction should be quashed, arguing that, among other things, the trial judge erred in admitting hearsay evidence, which was not subjected to cross-examination; therefore, leading to an unfair trial and that the trial judge erred in not withdrawing the case from the jury in light of the weaknesses which existed in the visual identification evidence.

Furthermore, Clarke contended that the trial judge failed to grant his client a remedy by way of reduction of sentence for breach of his constitutional right to a fair hearing within a reasonable time.

However, the Appeal Court panel comprising President Justice Marva McDonald-Bishop, Justice Evan Brown, and Justice Lorna Shelly-Williams dismissed the arguments for Smith’s conviction to be quashed and said, “We conclude that there is no legal basis upon which the verdict of the jury can be disturbed, and so the conviction is safe. Leave to appeal conviction must, therefore, be refused.”

The judges said while “it is a fact that the learned trial judge failed to indicate the methodology by which he arrived at a minimum term of 20 years before parole eligibility, the circumstances of this murder case were that it was committed in the presence of several people, during the night, at the dwelling house of the deceased, and with the use of a firearm which was not recovered”.

“This was a home invasion. There is also the fact that this type of crime is prevalent in society. Having considered the range of sentences for murder of this nature and the learned trial judge’s indication that he was minded to sentence the applicant to a minimum term of 30 years before eligibility for parole, but instead sentenced him to a 20-year minimum term before eligibility for parole, it cannot be said that the sentence was manifestly excessive,” they said.

“Regarding the applicant’s complaint that he is entitled to a reduction in sentence for breach of the reasonable time guarantee in the trial and appellate process, we find no merit in these grounds of appeal,” the judges of the Appeal Court stated.

Regarding the issue of pre-trial delay, the panel said, “At no time during the trial did the applicant assert that his right to a trial within a reasonable time had been breached. Therefore, the learned trial judge did not consider any constitutional breach in sentencing the applicant. However, this omission does not render the sentence impeachable, as the applicant has not presented any positive case to show that any delay at trial was entirely or predominantly the fault of the State. Therefore… the reduction of sentence for pre-trial delay must fail.”

The judges, in pointing out that the issue regarding breach of the reasonable time guarantee became a live one in the appellate process, admitted that “the six-year period between the conviction and the disposal of the application before this court is unacceptable and is accepted to be in breach of the reasonable time guarantee”.

Smith, who was convicted in June 2019, filed his application for leave to appeal in November 2019. It was considered by a single judge of appeal in 2022, following the receipt of the transcript in September 2022, three years later. The application was finally heard in 2025. The case spent six years in the appellate process.

The Appeal Court, while acknowledging the breach, said it was not sufficient to let Smith off the hook.

“The applicant has, however, clearly benefited from the generosity of the learned trial judge when imposing sentence by an overall credit of seven years for time spent on pre-trial remand, plus a further reduction of three years. Of those additional three years discounted by the learned trial judge, half of the period [being one year and six months] would be sufficient as a remedy for the delay in the disposition of his case before this court. This is so because any reduction to which he would be entitled, if he were to be granted a reduction, would not have exceeded one year and six months, in keeping with the relevant authorities from this court that generally a delay of four years would justify a reduction of one year,” the panel declared.

“Therefore, this court will grant no further reduction in his sentence, but will instead publicly acknowledge the breach of the reasonable time standard due to delay in the appellate process and tender an apology for the breach.

“Ground 6 also fails to the extent that it posits that the sentence imposed by the learned trial judge is inappropriate because there should be a reduction in the sentence due to delay. Accordingly, there is no legal basis to disturb the sentence imposed by the learned trial judge, and so the application for leave to appeal sentence must also be refused,” the Appeal Court judges stated.

“Consequently, the court makes the following order: The application for leave to appeal conviction and sentence is refused; the sentence is to be reckoned as having commenced on 28 June 2019, the date it was imposed in the Home Circuit Court. The court acknowledges that the applicant’s constitutional rights to have his appeal considered by this court within a reasonable time, pursuant to sections 16(1) and 16(8) of the constitution, have been breached and sincerely apologises for the breach,” the panel ruled.