Commissioner, Independent Commission of Investigations v Director of Public Prosecutions

• Jurisdiction: Jamaica
• Judge: Wolfe-Reece, J
• Judgment Date: 22 October 2020
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2019CV04288
• Date: 22 October 2020

[2020] JMSC Civ 205

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISON

CLAIM NO. SU2019CV04288

Between

Commissioner, Independent Commission of Investigations

Applicant

and

Director of Public Prosecutions

Respondent

Mr. Richard Small & Ms. Krystle Blackwood for the Applicant

Mr. Adley Duncan, Deputy Director of Public Prosecutions (Ag.) & Mrs. Nikeisha Young Shand, Crown Counsel instructed by the Director of Public Prosecutions for the Respondent

ADMINISTRATIVE LAW — Judicial Review — Application for Leave to apply for Judicial Review — Review of a decision made by the Director of Public Prosecutions — Whether there is a reasonable prospect of success — Sections 1(9) and 94 of the Constitution of Jamaica

IN CHAMBERS

Wolfe-Reece, J

INTRODUCTION

1 On November 4, 2019 the Applicant, the Commissioner of the Independent Commission of Investigations (INDECOM) filed a Notice of Application for leave to apply for Judicial Review of a decision of the Director of Public Prosecutions (DPP) not to prosecute Deputy Superintendent Alfred McDonald for the offences of Murder and Misconduct in a Public Office. The Applicant is also seeking to review the DPP's decision not to charge Corporal Kirk Adlam for Attempting to Pervert the Course of Justice, which arose from an incident which resulted in the fatal shooting of Jamar Walford.

2 The application was supported by the Affidavit of Makiedah Messam filed on the same date. The specific Orders being sought are as follows:

• (a) An order of Certiorari quashing the ruling of the Respondent of October 8, 2019 not to charge:

  • 1. Deputy Superintendent Alfred McDonald for Misconduct in Public Office; and

  • 2. Corporal Kirk Adlam for Attempting to Pervert the Course of Justice

• (b) An Order of Certiorari quashing the decision of the Respondent of October 8, 2019 not to charge Deputy Superintendent Alfred McDonald for Murder

• (c) An Order of mandamus directing the Respondent to cause:

  • 1. Deputy Superintendent Alfred McDonald to be charged for Misconduct in Public office and Murder; and

  • 2. Corporal Kirk Adlam to be charged for Attempting to Pervert the Course of Justice

• (d) A Declaration that there is a prima facie case against:

  • 1. Deputy Superintendent Alfred McDonald for the offence of Misconduct in Public Office and Murder; and

  • 2. Corporal Kirk Adlam for the offence of Attempting to Pervert the Course of Justice

• (e) A Declaration that in the instant case, the Respondent erred in the purported application of the case law in arriving at her decision;

• (f) A Declaration that failure to charge:

  • 1. Deputy Superintendent Alfred McDonald for the offence of Misconduct in Public Office and Murder; and

  • 2. Corporal Kirk Adlam for the offence of Attempting to pervert the Course of Justice,

  breaches the procedural obligations implied by virtue of the constitutional guarantee of the right to life; and

• (g) An Order extending time within which to apply for Judicial Review pursuant to Part 56.6(2) of the Civil Procedure Rules, if in the event that this Honourable Court finds that the time limit has been exceeded in the circumstances.

Background

3 On the 27 ^th May, 2016 at approximately 7:00 am members of the Jamaica Constabulary Force went on a joint operation in Denham Town, Kingston. This operation was led by Superintendent Alfred McDonald, and the team comprised of at least four other officers, namely Constable Duwayne Kelly-James, Corporals Kirk Adlam, Rhamone Scott, and Gregory South.

4 At the end of the operation Mr. Jamar Walford was found fatally shot. The statements collected disclose that Mr. Walford was first shot and injured by Corporal Gregory South at a premises situated at 70 Bond Street, Kingston. However, when he ran to an adjoining premises, he was fatally shot by Corporal Rhamone Scott. The police officers are not denying that they shot Mr. Walford but they contend they did so in self-defence as he was armed with a firearm and fired gunshots at them in an effort to escape detention.

5 The Applicant did an investigation and collected several witness statements from civilians who were present during the operation. These witnesses state that at all material times during this operation Mr. Walford was unarmed. They also contend that Mr. Walford was in his room which he occupied, when the police officers entered the room and shot him. The Applicant's investigation also revealed that the Taurus 9mm pistol serial number B64182 containing four (4) live 9mm rounds, that the police alleged was recovered from Mr. Walford, was the same firearm recovered by the police from a previous operation led by DSP Alfred McDonald on April 28, 2016.

6 On conclusion of the Applicant's investigation and in line with the agreement between the Office of the Director of Public Prosecutions (ODPP) and the Applicant's office the file was sent to the DPP for a ruling to be made by her. The Applicant recommended that the following charges be laid against the officers.

• 1. Corporal Rhamone Scott for Murder

• 2. Corporals Gregory South & Dwayne Kelly-James for Wounding with Intent

• 3. Corporal Kirk Adlam for Attempting to Pervert the Course of Justice and;

• 4. Deputy Superintendent Alfred McDonald for Misconduct in a Public Office

7 The DPP by way of a letter dated August 13, 2018 ruled as follows;

• 1. Constable Duwayne Kelly-James & Corporal Gregory South be charged with Wounding with Intent

• 2. Corporal Rhamone Scott be charged with Murder

• 3. Recommendation that strong disciplinary proceedings be instituted against DSP Alfred McDonald and Corporal Kirk Adlam

8 The Applicant approached the DPP to reconsider her decision. After a face to face meeting and discussions between the Applicant and the Respondent, the Respondent indicated that she would further reconsider the matter. On October 8, 2019 the DPP indicated in writing that she stood by her ruling of August 13, 2018. This has led the Applicant to seek the leave of the Court to apply for Judicial Review of the Respondent's decision not to prosecute.

9 The Applicant's grounds in support of the Application are outlined as follows;

• a. “That the Respondent erred in law in deciding not to prosecute Deputy Superintendent Alfred McDonald and Corporal Kirk Adlam for Misconduct in a Public Office, Murder and Attempting to Pervert the Course of Justice;

• b. That the Respondent erred in law in her interpretation of Michael Adams and Frederick Lawrence v R [2002] UKPC No. 14 of 2001

• c. That the Respondent's decision not to prosecute the aforementioned officers was irrational;

• d. That the Respondent erred in failing to adequately consider, or misconstrued the elements of the offence of Misconduct in Public Office;

• e. That the Respondent erred in failing to adequately consider, or misconstrued that inferences of culpability could be drawn from the evidence;

• f. That the Respondent acted contrary to and/or failed to pay sufficient regard to the guidelines prescribed in “the Decision to Prosecute: A Jamaican Protocol”;

• g. That the decision not to charge breaches the procedural obligations implied by virtue of the constitutional guarantee of the right to life;

• h. That there is no adequate alternative form of redress available to the Applicant;

• i. That the Respondent has been adversely affected by the decision of the Applicant;

• j. That the application for Judicial Review is in the public interest and the Applicant possesses expertise in the matter;

• k. That the application has been made within the time limit but, in the event the time limit for the filing of this Claim has been exceeded, the Claimant hereby makes an application for leave to extend time within which to apply for Judicial Review as:

  • (i) the delay in pursuing Judicial Review has not been serious or significant;

  • (ii) there is a good reason for the delay in the pursuit of Judicial Review, in that:

    • [1] the Applicant explored alternative remedies as provided for in a Record of Agreement between the Respondent, the Jamaica Constabulary Force, and the Applicant dated the 29th day of March, 2018 for a reconsideration of her decision in the matter; and

    • [2] the delay in seeking of Judicial Review is explained by the Respondent's failure to promptly reply to written requests and submissions made at a meeting on the 16 ^th day of May, 2019.

  • iii. that the Respondent and third parties have not been prejudiced by the delay in seeking leave to apply for Judicial Review, and there would be no unfairness to the Respondent or Third Parties;

  • iv. that the refusal of the relief is likely to cause substantial hardship to, or substantially prejudice the rights of persons, and would be detrimental to good administration and the administration of justice;

  • v. that should the Court find that there was undue delay, time should be extended nevertheless;

  • vi. that the issues involved in the proposed Judicial Review application are important as the case involves a breach of the procedural obligations attendant upon the constitutional guarantee of the right to life;

  • vii. that there is a good arguable case, and reason to believe that there is a strong prospect of success given that this is a case involving an error and misapplication of law by the Respondent;

  • viii. that the public interest requires that the Application for Judicial Review be permitted to proceed;

  • ix. that the aforementioned grounds amount to good and sufficient reasons to grant an Order extending time, if required;

• (I) It is within the power of the Court to grant the relief sought; and

• (m) That it is just and equitable for the Court to grant the orders as prayed.”

10 Both parties provided the Court with detailed written submissions which were extremely helpful. I have read them in detail and though I may not refer to every point raised I have taken the...