Chester Hamilton v Commissioner of Police

• Jurisdiction: Jamaica
• Judge: Dukharan JA,Harris JA
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] JMCA Civ 35
• Docket Number: SUPREME COURT CIVIL APPEAL NO 96/2011
• Court: Court of Appeal (Jamaica)
• Date: 31 July 2013

Between

Chester Hamilton

Appellant

and

Commissioner of Police

Respondent

[2013] JMCA Civ 35

Before:

The Hon Mrs Justice Harris JA

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

SUPREME COURT CIVIL APPEAL NO 96/2011

JAMAICA

IN THE COURT OF APPEAL

JUDICIAL REVIEW - Police officer - Whether the decision of the Jamaica Constabulary Force to reassign the claimant was oppressive

Harris JA

1 I have read in draft the judgment of my sister Phillips JA and agree with her reasoning and conclusion. I have nothing to add.

Dukharan JA

2 I too have read the draft judgment of my sister Phillips JA and agree.

Phillips JA

3 This is an appeal from the decision of Brooks J (as he then was) given on 2 August 2011 where he ordered that:

• 1. The Fixed Date Claim Form not having been accompanied by an affidavit at the time that it was filed was a nullity.

• 2. The claim was dismissed.

• 3. Leave to appeal was granted.

• 4. Costs were to be agreed or taxed and paid to the respondent.

4 The appeal relates to judicial review proceedings, where the appellant, having obtained leave from Daye J to make a claim for judicial review, filed a fixed date claim form within the time required by the rules, and served the same within the time required by the rules but together with the affidavit which had been filed in support of the application to obtain leave. The affidavit had not been refiled subsequent to obtaining the order of Daye J.

The proceedings in the court below

5 The ex parte notice of application for leave to apply for judicial review was filed on 4 November 2009 and sought leave to apply for judicial review of the decision of the Jamaica Constabulary Force (the Force) set out in Force Orders dated 14 May 2009 and bearing serial no 3232, which informed the appellant that he was to cease performing duties with the Criminal Investigation Branch and that he was reassigned to general duties with effect from 18 May 2009.

6 The application was based on several grounds, inter alia, that the decision constituted an arbitrary and oppressive exercise on the part of the respondent, who hadacted in breach of natural justice and the Force's regulations. The order, it stated, was required for the fair and just disposal of the matter, pursuant to the overriding objective, and on the basis that the application had been filed in time. Additionally, if leave was refused, the appellant claimed, he would suffer substantial prejudice and it would be detrimental to the relevance of the Force's grievance procedure and policy and its statutory regulations.

7 The affidavit in support of the application was sworn to by the appellant, and he deposed that he had been a member of the Force for over 14 years, having been first assigned to the Kingston East Division, where he started out in the guard room doing general police duties as a constable. In 1998 he joined the Criminal Investigation Branch as an aide and was appointed full detective in 1998. In 2005 he was promoted to the rank of detective corporal. He stated that he had received, by weekly Force Orders bearing serial number 3249 and dated 10 September 2009, commendation for efficient and dedicated service in respect of his ‘zeal, energy and initiative displayed considerably beyond the average in the performance of duty for … 2008’. He averred that since his engagement with the Force he had performed his duties impeccably and taken his job seriously. In fact, by letter of 16 February 2009, which he exhibited to the affidavit, he had been approved to act in the position of sergeant. He referred to the Police Service Regulations 1961 to confirm that appointments are made by the Police Service Commission pursuant to the criteria set out in the regulations, for example, giving preference to those members who have manifested, ‘superior intelligence and efficiency in the performance of their functions’.

8 He stated that it therefore came as a surprise to him when he received the letter of 14 May 2009, indicating that he had been reassigned from performing duties with the Criminal Investigation Branch to general duties. He instructed his attorneys to act on his behalf, and was initially informed by the respondent, in response to a letter from the attorneys, that the matter was receiving attention, and that he would receive further communication from the office. That communication came in the form of a letter dated 8 September 2009, which is the crux of this matter, and which I will therefore set out in its entirety.

September 8, 2009

‘No. 7024 D/Corporal Chester Hamilton c/o Kingston Western Division

Re-assignment to ordinary duties

You are hereby notified that you are no longer deemed suitable to continue to perform C.I.B duties and is [sic] therefore reassigned to ordinary duties with immediate effect.

This results from your handling of the investigation of the matter involving the carnal abuse and subsequent abduction of Jhaneel Gouldbourne, in which Constable Rushan Hamilton is implicated, which is deemed to be unprofessional. This is in addition to your poor work attitude as assessed by previous supervisor, D.S.P i/c of Crime, Kingston Eastern Division.

Your poor handling of this matter necessitated the reassignment of the case to another investigator.

In light of the foregoing, you have lost the confidence of the organization in performing in the capacity of a member of the C.I.B and steps are being taken to assess your suitability for continued service with the organization.

You may respond to this notice within seven (7) days of receipt of same.

[Sgd.]

Assistant Commissioner of Police

Administration.’

9 The appellant further averred that it was clear that this letter suggested unprofessional conduct on his behalf, which he denied. He set out what he recalled of the matter which had been referred to specifically. He indicated that he had received a report in October 2008 about a girl missing in the Harbour View area. He said that he had conducted his investigations and thereafter produced a report. The matter was then taken over by Inspector Davis, being of superior rank to him in the Force. Searches, he said, were conducted but the girl had not been found. He was asked to proffer charges against one Rachel Roberts, but he was of the view that there was not sufficient evidence to do so, and he confirmed this at the Office of the Director of Public Prosecutions by consultation with Mr Dirk Harrison, a deputy director of public prosecutions. He subsequently advised the inspector of this, who took the file from him, indicated that if he was not comfortable with what was in the file, he should ‘let his conscience be his guide’, which he therefore thought was the end of the matter. Charges were, however, subsequently laid against the said Rachel Roberts, he said, but the matter was dismissed for lack of evidence.

10 He further deposed that the decision to re-assign his duties had caused him embarrassment, financial loss, and had affected his prospects for further promotion in the Force. He had not been given an opportunity to answer the charges laid against himbefore the Force Orders were published. His colleagues, he said, viewed him as if he had been involved in unlawful conduct.

11 On 22 February 2010, Daye J made the following orders, which have not been challenged:

• ‘ i. Leave granted to apply for judicial review.

• ii. Fixed Date Claim Form to be served on the Respondent within fourteen (14) days of the date hereof.

• iii. First hearing to be held on 15 ^th June, 2010 at 3:30 p.m., for half (1/2) hour.’

12 The fixed date claim form was filed on 8 March 2010, the 14 ^th day after the order of Daye J. The orders sought were as follows:

• ‘1. An Order of Certiorari to quash the decision of the Respondents to demote the Applicant from the rank of Detective Corporal to the rank of Corporal and transfer the Applicant from the Kingston Eastern Division to the Kingston Western Division as per letter dated September 9 [sic], 2009.

• 2. An Order of Mandamus directed to the Respondents [sic] to compel the Respondents [sic] to reinstate the Applicant in the position of Detective Corporal so that he can perform his duties and receive his full salary.

• 3. Costs and Attorneys-at-law [sic] costs of this Application.

• 4. Such further and other relief as this Honourable Court may deem just.’

13 The grounds of the claim focused on the breach of the principles of natural justice, in that the appellant claimed that he had not been made aware of any complaint against him, nor had he received any warning about his alleged conduct norhad he been given an opportunity of a hearing in relation to any allegations which had been made against him.

14 As indicated in paragraph [4] herein, the fixed date claim form was served at the Office of the Commissioner of Police, with the affidavit of the appellant which had been filed in support of the application for leave to apply for judicial review, referred to at paragraphs [6] to [9] herein, within 14 days of the order of Daye J, namely 8 March 2010. Evidence of the service of the documents was given by way of the affidavits of Miss Nesseine Mardner and Mrs Denise Senior-Smith, sworn to on 29 July 2011.

15 At the first hearing of the fixed date claim form before Brooks J (as he then was), note was taken of the service mentioned above, and the fact that no affidavit had been filed with the fixed date claim form. Although submissions were made to distinguish this case from others, the learned judge indicated that he was bound by the dictum of Harris JA in Orrett Bruce Golding and the Attorney General of Jamaica v Portia Simpson Miller SCCA No 3/2008, delivered 11 April 2008, and he made the orders set out in paragraph [3] herein.

The appeal

16 On 9 August 2011 the appellant filed the notice of appeal and an amended notice on 20 June 2012. There were...