Albert Diah v R
| Jurisdiction | Jamaica |
| Judge | Phillips JA,F Williams JA,Brooks JA |
| Judgment Date | 16 March 2018 |
| Neutral Citation | JM 2018 CA 60 |
| Docket Number | PARISH COURT CRIMINAL APPEAL NO 4/2015 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA Crim 14
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice Brooks JA
THE HON Mr Justice F Williams JA
PARISH COURT CRIMINAL APPEAL NO 4/2015
Oswest Senior-Smith for the appellant
Richard Small and Miss Yanique Taylor for the respondent
Miss Althea Jarrett instructed by the Director of State Proceedings appearing amicus curiae
Miss Kathy Pyke and Mrs Denise Samuels-Dingwall instructed by the Director of Public Prosecutions appearing amicus curiae
Mr Albert Diah (a Deputy Superintendent of Police) was charged and convicted of failing to comply with a lawful requirement of the Independent Commission of Investigations (INDECOM), and obstructing INDECOM in the exercise of its functions. He was sentenced on each count to a fine of $400,000.00 or six months imprisonment at hard labour in default thereof. The information was laid by Mr Dave Lewin (an INDECOM investigator), and Mr Diah was prosecuted by INDECOM's legal representative. He has now appealed his conviction and sentence on the basis that the Commissioner of INDECOM (the Commissioner) and his investigative staff, had no power to prosecute him without a fiat from the Director of Public Prosecutions (DPP). He further challenged his conviction and sentence on the basis that the learned Parish Court Judge utilised prejudicial material in her deliberations; failed to properly appreciate his defence having regard to section 13 of the Constabulary Force Act and section 22 of the Independent Commission of Investigations Act 2010 (the Act); and that the sentence imposed by the learned Parish Court Judge was manifestly excessive.
On 29 August 2013 at about 4:05 am, a shooting occurred in the Macca Tree area, Windsor Heights, in the parish of Saint Catherine, allegedly between police and gunmen. During that incident, a female was shot and killed and a firearm recovered from the scene of the shooting. INDECOM was informed of this incident and thereafter, Mr Phillip Anderson, a forensic examiner of INDECOM, visited the Central Village Police Station in the parish of Saint Catherine at about 7:20 am the same day. Detective Sergeant Carl Morris, the initial investigating officer in the said fatal shooting, gave Mr Anderson seven firearms, which included six police service firearms and the firearm recovered from the scene of the incident. Mr Diah later took possession of the said firearms, and it was alleged that when he was asked to return them to an INDECOM investigator so that they could be photographed and packaged by an INDECOM investigator, in the presence of the initial investigator, Mr Diah refused, save and except the firearm recovered at the scene of the shooting, which he gave to Mr Anderson. Based on instructions given to Mr Diah by his superior, Senior Superintendent of Police Colin Pinnock, Mr Diah escorted the six police firearms to the Government Forensic Laboratory (the lab) in the parish of Kingston, that same day, where they were tested and returned to him. The firearms were retested the following day on 30 August 2013, by INDECOM, based on a request by Mr Floyd McNabb, Director of Complaints at INDECOM, to Mr Diah.
On 20 November 2013, Mr Diah was summoned for the offences of: (i) obstructing INDECOM in the exercise of its functions contrary to section 33(b)(i) of the Act, in that he, “without lawful justification or excuse, obstructed [INDECOM] in the exercise of its functions in that, he terminated [INDECOM's] access to weapons relevant to [INDECOM's] investigations of an incident”; and (ii) failing to comply with a lawful requirement of INDECOM contrary to section 33(b)(ii) of the Act, in that he, “without lawful justification or excuse, failed to comply with a lawful requirement of [INDECOM], in that, he disobeyed a requirement to produce weapons relevant to [INDECOM's] investigations that were in his possession or control”.
His trial for those offences commenced in July 2014, in the Saint Catherine Parish Court, holden at Spanish Town, before Her Honour Miss Anne-Marie Nembhard. At the beginning of Mr Diah's trial, a preliminary objection was made on his behalf that INDECOM's legal representative, Mr Richard Small of counsel, ought to have obtained a fiat from the DPP in order to commence a prosecution against Mr Diah, since it was only the Clerk of the Courts and counsel from the office of the DPP that had such authority. Counsel for INDECOM responded to this objection. The learned Parish Court Judge ruled, inter alia, that the issue as to whether INDECOM had the power to prosecute was settled in The Police Federation and Others v The Commissioner of the Independent Commission of Investigations and Another [2013] JMFC Full 3, and so rejected the preliminary objection.
Mr Small called six witnesses for the prosecution. The first witness was Sergeant Alrick Morrison who testified that on 29 August 2013, he received information about the incident, and passed the said information to INDECOM as a part of the Jamaica Constabulary Force's (JCF) standard operating procedure. He was not cross-examined. The second witness was Mrs Peta-Gay Boyd-Davis, the secretary for the forensic department of INDECOM and the call operator for the Call User Group cellular phone. She testified that on 29 August 2013, she received a call from the police relating to the said incident, and she referred the matter to INDECOM's chief investigator, Mr Dave Lewin, and its chief forensic examiner, Mr Lauren Campbell. She too was not cross-examined.
Mr Phillip Anderson, a forensic examiner from INDECOM and the third prosecution witness, testified that on 29 August 2013, he received information about the fatal shooting in Central Village. He arrived at the Central Village Police Station at about 7:20 am, and he spoke to Detective Sergeant Morris who identified himself as the initial investigator of the said incident, and who later handed over seven firearms to him. He further stated that Sergeant Morrison introduced him to the officers involved in the shooting, and the hands of those officers were swabbed for gunshot residue. He then saw the firearms that were handed to him, being taken away by Mr Diah, and he “went to him and told him that it was my duty to package the firearms in the presence of the initial investigator”. He also told Mr Diah that “[t]he sealed package containing the firearms should be handed back to the initial investigator”. Mr Anderson indicated that Mr Diah responded saying that “he would not allow any civilians to handle police firearms and he would not hand them to me”. Mr Anderson further testified that the following exchange took place:
“79. …I asked him since he was not handing the police firearms to me if it would be possible that I can package the alleged recovered firearm. That firearm was handed to be by Albert Diah. Kevon Stephenson, an investigator for [INDECOM] and Mr. Lauren Campbell, chief forensic examiner for [INDECOM], also spoke to Mr. Albert Diah.
80. I heard both Kevon Stephenson and Mr. Lauren Campbell saying that the firearms should be packaged by [INDECOM].
81. Mr. Diah was objecting to handing the firearms to us in a boisterous manner.
82. I saw him putting the firearms in the back of an SUV. I cannot recall if it was in the trunk or on the backseat.
83. I saw the firearms in his hand.
84. [INDECOM] requires the firearms to be packaged into a firearm box and sealed in the presence of the police initial investigator. The boxes should also be labeled before they are handed to the initial investigator.
85. The seal is signed by the person packaging the firearms. In this case it was me. The packaged, sealed and signed evidence box is photographed. When the firearm is placed inside of the box the firearm is fixed to the box using a tie strap. The firearm inside of the box is photographed to show the serial number and the type of firearm. A glove should always be on anybody's hands who handle such firearms.
86. Q: What is the purpose of this procedure for the fixing of the gun, photographing etc? A: The purpose is to protect the integrity of the firearms. To ensure that parts of the firearms are not changed which can give a different ballistic output. The firearms were then handed to the initial police investigator for transmission to the Government Forensic Lab.
87. INDECOM's presence is required when the Government Forensic Lab analyst is opening the box containing the firearm.”
Under cross-examination, Mr Anderson said that when he arrived at the Central Village Police Station, all seven firearms were being tagged by a member of the JCF. He swabbed three hands, and while doing so, the seven firearms were on a table behind him. He stated that the firearms were exhibits, and that he had been given custody of those exhibits, but he agreed that he had not been exercising proper custody of the exhibits when they were placed behind him out of sight. Mr Anderson, in further cross-examination, agreed that in August 2013, he had no licence or permit to handle firearms.
The fourth prosecution witness, INDECOM's chief forensic examiner and former member of the JCF, Mr Lauren Campbell, testified that on 29 August 2013, he received information about the incident from Mrs Boyd-Davis, and he contacted Mr Anderson and gave him certain instructions. He further indicated that while at the Central Village Police Station the following occurred:
“110. Mr. Diah was leaving the station building carrying six (6) firearms. I spoke to him. I called out to him to get his attention first. I introduced myself to him as Lauren Campbell, Chief Forensic Examiner at INDECOM. I then asked him if the weapons that he was carrying were those that the officers involved in the shooting used in the operation. He answered. He said yes.
111. I then told him that there is a...
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