Coroner of Kingston & St Andrew and Attorney General of Jamaica v Dionne Holness

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 18 September 2006
• Judgment citation (vLex): [2006] 9 JJC 1802
• Court: Supreme Court (Jamaica)
• Date: 18 September 2006

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV 00999/2005

BETWEEN

DIONNE HOLNESS

CLAIMANT

AND

THE CORONER OF KINGSTON AND ST. ANDREW

FIRST RESPONDENT

AND

THE ATTORNEY GENERAL OF JAMAICA

SECOND RESPONDENT

JUDICIAL REVIEW - Coroner's inquest

1 Coroners Inquiry — S. 21 Alternative Remedy — Independent Evidence —Leaving Available Verdicts — Jury Selection

Campbell J

2 (1) A Coroners Inquest was held by His Honour Mr. Patrick Murphy, sitting with a jury in the Coroners Court for the Corporate Area, between the 8 ^th December 2004 and the 10 ^th day of January 2005. The inquest was to enquire into circumstances touching the death of Dwayne Graham, a 20 year-old male of 57 Waltham Park Road in the parish of Kingston.

3 (2) The Inquisition, sworn to by the jurors stated that Graham died on the 19 ^th June 2003 at the intersection of Euspeut Avenue and Waltham Park Road, as a result "of multiple gunshot wounds and that his death was as a result of justifiable homicide and no one was criminally responsible."

4 (3) On the 11 ^th April 2005, Dionne Holness, businesswoman of 57 Waltham Park Road, the mother of the deceased, applied for judicial review pursuant to Part 56 of the Civil Procedure Rules 2002, as "a person with sufficient interest in the subject-matter of the application." She sought a Writ of Certiorari to quash the verdict of the jury and an order for Mandamus to compel the Coroner of Kingston to hold another inquisition touching and concerning the death of her son.

5 (4) The Attorney General applied to have Ms. Holness' application for judicial review struck out on the ground that she had failed to seek leave and that the Attorney General of Jamaica was not a proper party to the proceedings. A Change of Attorney was filed on the 11 ^th November 2005. On 28 ^th November 2005 the new attorneys amended Ms. Holness' application by applying for leave to apply for judicial review.

6 (5) On the 27 ^lh March 2006 Mr. Justice King refused the application for leave and gave as his reason that "The Coroners Act provides an alternative form of redress which is currently being pursued." The proceedings before this Court were therefore made pursuant to Section 21 of the Coroners Act.

7 S. 21 of Coroners Act, as an Alternative Remedy to Judicial Review

8 (6) It is well to note that judicial review is a collateral challenge and not an appeal. Where Parliament has therefore uno flatu provided an alternative statutory remedy, that remedy should be pursued before judicial review is permitted. Judicial review is a remedy of "last resort."

9 (7) In R (on an application by JD Wheatherspoon plc) v Guilford Borough Council [2006] EWHC 815 (Admin), the Defendant submitted that the application for judicial review before the Court should be dismissed for failure to pursue the alternative remedy. The Defendants' submissions were supported by the authorities of R v Chief Constable of Mersevside Police ex parte Claverlev (1986) 1 All ER 257 and R v Secretary of State of Home Department, ex parte Swati (1986) 1 All ER 717. In his judgment of Weatherspoon, Beatson J, at para 87, said;

"Many other cases also refer to the principle that judicial review is a remedy of 'last resort' ( R v Hammersmith and Fulham LBC, ex parte Birkett [2002] UKHL 23, [2002] 3 All ER 97, [2002] 1 WLR 1593 at para 42, per Lord Steyn) or a 'long stop' ( R v Takeover Panel, ex parte Guinness plc [1990] 1 QB 146, 177–178, [1989] 1 All ER 509, [1989] 2 WLR 863, per Lord Donaldson MR)."

10 (8) A vital issue for consideration in determining whether judicial review or the alternative remedy is the preferred course, is the adequacy of the alternative remedy in addressing the concerns raised by the Applicant In R (on an application by JD Wheaterspoon plc) [Supra] at para 90, Beatson J said:

"The test of whether a Claimant should be required to pursue an alternative remedy in preference to judicial review is the 'adequacy', 'effectiveness' and 'suitability' of that alternative remedy: see ex parte Cowan, R v Devon CC, ex parte Baker [1995] 1 All ER 73 at 92, 91 LGR 479, 11 BMLR 141. In R v Leeds CC, ex parte Hendry (1994) 6 Admin LR at 443 it was said that the test can be boiled down to whether 'the real issue to be determined can sensibly be determined' by the alternative procedure and in R v Newham LBC, ex parte R [1995] ELR 156 at 163 that it is whether 'the alternative statutory remedy will resolve the question at issue fully and directly.'"

11 (9) The grievance that Ms. Holness harbours are the perceived defects in the Coroners Inquest, which are particularised in the affidavit of Tasha Rodney, Attorney-at-Law, where at para 11 she states;

In written submission to the Court I asked the judge to;

Read into evidence the reports of the independent pathologist, Dr. Odunfa.

Allow an expert to explain Dr. Odunfa's complicated report Allow counsel to address the jury regarding the applicable law; and Advise the jury that one of the conclusions that they can arrive at is that both constables are criminally responsible for Dwayne's death. I exhibit hereto marked TR1 the said written submissions.

12 The Coroner read into evidence Dr. Odunfa's report but refused all my other requests.

13 The Coroner did not offer an explanation for his refusal.

14 I have attended Coroners Court regularly over the last nine months and I have noticed that the Coroner uses a number of jurors repeatedly.

15 I have seen the jurors on the panel in Dwayne Graham inquisition on many other panels before.

12 (10) The alternative remedy contained in Section 21 of the Coroners Act, provides as follows:

(1) Where a judge of the Supreme Court upon application made by an interested person or by or under the authority of the Director of Public Prosecutions, is satisfied either

• (a) That a Coroner refuses or neglects to hold an inquest which ought to be held, or which he has been directed by the Director of Public Prosecutions to hold; or

• (b) Where an inquest has been held by a Coroner that by reason of fraud, rejection of evidence, irregularity of proceedings insufficiency of inquiry, or any other circumstances or considerations, whether similar to the foregoing or not, it is necessary or desirable in the interest of justice, that another inquest should be held.

  The judge may order an inquest to be held touching the said death, and may, if he thinks it just, order the said Coroner to pay such costs of an incident to the applicant as he thinks just, and where an inquest has already been held may quash the inquisition on that inquest.

13 (11) Before this Court, attorney for the Applicant submitted that, "If the learned Coroner had granted Counsel's application, there is a real likelihood that a different verdict could have been reached."

14 (12) What is sought is a new inquiry at which it will be open to the jury, after "proper" directions, to find either or both police officers criminally liable for her son's death. To my mind Section 21 adequately and effectively provides for this remedy. Section 21 (b) covers the areas normally allowed for judicial review. In the Council of Civil Service Unions v Minister for the Civil Service (1985) AC 375 Lord Diplock formulated a classification for judicial review, at page 410 he says, "The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety.'" The learned law lord had also forecasted that, "That is not to say that further development on a case by case basis may not in the course of time add further grounds." Proportionality, as a fourth head, may very well have arrived as evidence of that development. The claim here is to the illegality of the...