I need to clear my record

Dear Mrs Macaulay,

had a case in the Morant Bay RM court. I was accused of misappropriation of funds. I went to court from 2001 to 2004 and the court always put it off because the prosecution was never ready and there was no evidence. The case was dismissed sine die. I did not know I was to go back to court to finally dismiss the case, so I just moved on with my life. Now I am abroad and realise that I have to get my record clear. I contacted a lawyer there but the court house burnt down in 2007 and the records were destroyed so the lawyer said he could not do anything without the file. He charged me $30,000 and said he would send a letter to inform my lawyer here that the records could not be located due to damage in the fire. I sent the money and he sent a letter stating that I still have a case pending but the records were destroyed in a fire which burnt down the court house. The lawyer replied to him and asked him if he could get a letter from the court and he said I am to get it from the court. How can I get a letter from the court to state that the records have been destroyed? I thought a lawyer would have provided some help, but he just took my money.

It is unfortunate that you were not aware that when a criminal case is adjourned (not ‘dismissed’) sine die, you must apply to the court for it to be re-listed when the prosecution does not do so, and apply for the matter to be dismissed for want of prosecution.

The application must be supported by an affidavit in which you relate the facts of your case, the charge, the date of your first appearance, and all subsequent dates of appearances (mentions and/or trials) and what occurred. Most especially, you must relate what happened and what was stated on the last date and the reason for the statement and the order that was made. This would be ‘adjourned sine die’. This must be clearly stated both in your application and in greater detail in your Affidavit in Support of it and the date this occurred. You see, the resident magistrate considering your application needs to be given as much as you can remember in order to base his or her decision to grant your application or not.

As you must see from the above, a letter about your file and others being destroyed would not suffice to assist you to clear your record of this outstanding charge, because an application must be made to the court which had jurisdiction over your case to dismiss it. In my view, the proper course of action should be as I have stated by way of the application as I have stated to the Morant Bay Resident Magistrate’s Court .

In my view, the court in Morant Bay would be best informed about the fire in 2007 which destroyed the building and its case files, and it is the proper court, according to law, to which you should make your application for a final determination of the trial of the offences for which you were charged and the trial of which was adjourned sine die.

This you must do. I am sorry that the lawyer you retained and paid some money to did not assist you in that regard, and I suggest that you retain another lawyer to act for you and to prepare and to make the application on your behalf. You were last in court some time in 2004, so clearly the prosecution is not in any position to proceed with their adjourned prosecution, and justice demands that the matter be concluded. Indeed, it is your fundamental human right not to have a criminal charge hanging over your head indefinitely. It must be concluded one way or the other. However, it is unfortunately up to you to apply to the court to get the matter finally resolved by a clear “dismissal of the charge for want of prosecution”.

So once your application and your affidavit in support containing all the facts which you have at your disposal have been filed, the court at Morant Bay must act to ensure that the matter is determined finally upon your application. Please try to remember the specific date of your last appearance in court in 2004. The matter of the fire is more within the court’s knowledge than it is within any other person or institution, save perhaps the Fire Brigade. Please put the matter in the hands of the court with proper legal representation, as it is the only way you can clear your record of the charge(s). Good luck.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

DISCLAIMER:

The contents of this article are for informational purposes only and must not be relied upon as an alternative to legal advice from your own attorney.