Coroner of Kingston & St Andrew and Attorney General of Jamaica v Dionne Holness
| Jurisdiction | Jamaica |
| Judge | HARRISON, P. , K. HARRISON, J.A. , McCALLA, J.A: |
| Judgment Date | 23 November 2007 |
| Neutral Citation | JM 2007 CA 65 |
| Judgment citation (vLex) | [2007] 11 JJC 2302 |
| Date | 23 November 2007 |
| Court | Court of Appeal (Jamaica) |
CORONERS - Order for new inquest - Appeal
This is an appeal from the decision of Campbell, J., on 18 th September 2006 in which he ordered that in the interest of justice a new inquest be held and that the Coroner pay the costs of the application before the Court.
I have read the draft judgment of Harrison, J.A., in this matter. I agree with his reasoning and conclusion. These are my comments.
The relevant facts are that His Honour Mr. Patrick Murphy, Resident Magistrate, presided as Coroner, with a jury, at the Coroner's Court for the Corporate Area between December 2004 and January 2005 to enquire into the death of one Dwayne Graham. As a consequence, on 10 th January 2005, an inquisition issued by the Court found that the deceased met his death on 19 th June 2003, as a result of multiple gunshot wounds in circumstances of justifiable homicide and no one was criminally responsible.
Dionne Holness ("the respondent"), his mother, being an "interested party", made an application in 2006, under section 21 of the Coroners Act (as amended), for an order that another inquest be held. The grounds in support of the application are —
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(i) The Coroner refused to allow the applicant's attorney-at-law to address the jury;
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(ii) the Coroner refused to allow an expert to be called to explain the findings of the independent pathologist which was read into evidence to the jury;
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(iii) the Coroner failed to instruct the jury that they could have found both police officers guilty on the principle of common design; and
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(iv) the Coroner used the same set of jurors which he used repeatedly in other inquests.
Campbell, J., decided the issues in (i), (ii) and (iii) in favour of the appellants, but found that the jury selection process was flawed and ordered that a new inquest be held. He said at page 15 of the record:
"There was nothing random or indiscriminate about the jury selection process. The process that maintained was repeated, regular and convenient. Convenience and justice are oftentimes not companions. This flawed selection process is aggravated by the involvement of agents of the State, being involved in the killing of the deceased.
The defect in the selection process makes it desirable in the interest of justice that another inquest should be held. The Court is of the view that the new inquest should be held by the Coroner of an adjoining parish. The Coroner should pay the cost of the applicant at this hearing, and of the Coroners Inquest."
This appeal arose as a consequence.
The grounds of appeal are:
"(a) The Learned Judge wrongly applied Section 18 of the Jury Act in his interpretation of section 11 (1) of the Coroners Act, on the basis that the Coroners Act must be read in conjunction with the relevant provisions of the Jury Act, when there was no requirement to do so.
(b) The Learned Judge erred in arriving at a decision that the jury selection process was flawed when there was no evidence before the court to support such a finding.
(c) The Learned Judge, in arriving at his decision failed to take into account factors which were relevant, and in particular failed to consider:
i. The inevitability/likelihood of a new inquest returning the same verdict;
ii. The public interest and expense involved in conducting a new inquest;
iii. The effect that the holding of a new inquest would have on the good administration of justice;
iv. Whether it is still possible to hold a fair inquiry into the facts, having regard to the lapse of time since the holding of the first inquest;
v. The broad purpose of an inquest and the extent to which, if at all, a new inquest will further those purposes.
(d) The Learned Judge wrongly exercised his discretion in awarding cost (sic) against the Coroner in circumstances where there was no finding of misconduct on the part of the Coroner."
The respondent filed a counter-notice of appeal. The grounds read:
(a) the learned judge erred in law in failing to rule that it was improper for the Coroner to have read to the jury the post mortem report of the independent pathologist, Dr. Odunfa, without it being submitted through another pathologist (or witness);
(b) the learned judge erred in law in failing to rule that it was improper for the Coroner to have read to the jury the post mortem report of the independent pathologist, Dr. Odunfa, without having an expert explain its contents to the jury;
(c) the learned judge erred in law in failing to rule that the Coroner ought, in the absence of another independent pathologist, to have examined the government pathologist, Dr. Seshaiah, on the various discrepancies between the post mortem report of Dr. Seshaiah and the post mortem report of Dr. Odunfa;
(d) the learned judge erred in law in failing to consider whether, as a result of the failure to have another pathologist explain the contents of the post mortem report of Dr. Odunfa and/or to explain the discrepancies between the two post mortem reports to the jury, there was a sufficient inquiry."
The principal question involved in this appeal is, was the method employed in the selection of the jury flawed, in relation to the statutory provisions of the unamended section 11(1) of the Coroners Act ("the Act"). Section 11(1) reads:
"11.-(1) Upon receipt of the medical and police reports the Coroner shall, except under the circumstances herein-after mentioned, as soon as practicable, issue his warrant for summoning not less than five nor more than thirty good and lawful persons to appear before him at a specified time and place, there to enquire as jurors touching the death of such person as aforesaid." (Emphasis added)
The institution of Coroner, described as the "ancient office of coroner" in early English legal history, probably existed from the 12 th century. The coroner, initially, sat as a judge at trial of cases, held inquests and also functioned as an agent of the Crown in matters of revenue collection. Later in time, the coroner only retained his duties of presiding at inquests into the deaths of persons, described as sudden, suspicious or unnatural deaths. It is an inquisitorial process.
Section 6 of the Act reads:
"6. Where a Coroner, or Justice, or officer or sub-officer of Constabulary in charge of a parish is informed that the dead body or part thereof, of a person, is lying within the jurisdiction of such Coroner, or Justice, or within the parish of which such officer or sub-officer is in charge, and there is reasonable cause to suspect that such person has died, either a violent, or an unnatural death, or has died a sudden death, of which the cause is unknown ... or that such person has died in prison, or in such place, or under such circumstances, as to require an inquest in pursuance of any law, it shall be lawful for such Coroner ... in his discretion, to direct a ... post mortem examination of the dead body."
The statutory provisions which governed the selection and composition of the Coroner's Court, contained in section 11(1) of the Act, and are restricted to the power of the Coroner to —
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(a) issue his warrant and
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(b) to summon not less than five or more than thirty persons,
"to enquire as jurors."
The early cases assist to demonstrate the defining nature of the functions of the coroner's court. In Rex v Divine Walton, Ex parte [1930] 2 KB 29, the King Bench Division quashed the inquisition of the coroner's court on the ground inter alia, that the selection of the jury was irregular in that the coroner confined his selection of jurors to a small panel of sixteen or seventeen persons. In delivering the judgment of the Court, Talbot, J., at page 33 said:
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