Everton Tabannah v Worrell Latchman
| Jurisdiction | Jamaica |
| Judge | Sykes J |
| Judgment Date | 20 June 2016 |
| Neutral Citation | [2016] JMSC CIV 198 |
| Docket Number | CLAIM NO. 2016HCV01886 |
| Court | Supreme Court (Jamaica) |
| Date | 20 June 2016 |
[2016] JMSC CIV 198
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Sykes J
CLAIM NO. 2016HCV01886
In the Matter of an Applicationby Everton Tabannahand Worrell Latchman
v
The Independent Commission of Investigations
Althea Grant and Wesley Watson for the applicants
Richard Small and Courtney Foster for the respondent
JUDICIAL REVIEW — APPLICATION FOR JUDICIAL REVIEW — INTERIM RELIEF
The Independent Commission of Investigations (‘Indecom’ or ‘the Commission’) has recommended that these two police officers, Deputy Superintendent Everton Tabannah and Constable Worrell Latchman, be charged with giving a false statement to mislead the Commission contrary to section 33 of the Independent Commission of Investigation Act and murder respectively.
Both men have applied for an injunction restraining Indecom from charging them until the application for leave to apply for judicial review has been heard and decided.
The applicants wish to secure leave to seek a number of declarations, an order of mandamus and injunctions restraining Indecom from charging them with the offences mentioned in the first paragraph.
Many of the declarations sought appear repetitive and do not add much to the main declarations sought which are:
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(a) A declaration order that the failure of [Indecom] to disclose relevant documents that [were] requested via the letter dated 23 rd day of April 2016 was a procedural error and a breach of the principles of natural justice.
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(b) A declaration that the failure of [Indecom] to grant the request via the letter dated 23 rd day of April 2016 for the disclosure of the documents will hamper the applicants' opportunity to proceed effectively with their application for leave to apply for judicial review.
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…
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(i) An order of mandamus to compel [Indecom] to disclose the documents as requested in the letter dated the 23 rd day of April 2016, namely the statements and the scientific evidence which touch and concern the fatal shooting of Donald Chin.
This matter initially came before this court as an application for interim relief. Specifically it was an injunction. The applicants had initially filed an application for leave to apply for judicial and the date given by the registry was September 2016. This is contrary to the express provision of the Civil Procedure Rules. Those rules expressly state that an application for leave must be placed before a judge ‘forthwith.’ It was after this date was received that the applicants applied for an injunction. The date was set for the hearing of the injunction. At the hearing for the injunction, the parties agreed that the application for leave should be heard at the same time as the injunction application. These reasons for judgment are for both applications.
The court will summarise all the evidence in the case. The applicants and the Commission have filed affidavits. In respect of the affidavits filed by both applicants there is not much difference between and what is about to be stated applies to both affidavits. The court will identify, where necessary, any difference between the two.
The applicants are members of the Jamaica Constabulary Force (‘JCF’). Both are attached to the Mobile Reserve Branch which is a major operational arm of the JCF that is not attached to any specific geographical location and are deployed throughout the island where necessary in support of police officers in police divisions.
On October 31, 2012, there was joint police/military operation in the parish of St James. The operation took both men to Rose Heights in the parish of St James. At the end of the operation a male was shot and killed. A formal notice of investigation was served on both men by Indecom. The notice required them to provide a witness statement in respect of the incident. After that notice, both men were required to submit to what they call a question and answer session which was alleged to be connected with the fatal shooting.
The applicants say that a third notice was served requiring them to submit to another question and answer session. They say that at the second question and answer session they were treated as witnesses and not suspects.
In April of 2016 they each received correspondence from the Commission informing them that the Commission had recommended that Constable Latchman be charged with murder and Deputy Superintendent Tabannah be charged with giving a false statement to mislead.
The letter they each received told them that if they are not satisfied with the recommendation made they have the right to seek judicial review of the decision. Among the documents they received was a report which summarised the material in the possession of the Commission. By letter dated April 23, 2016 their attorney at law requested copies of
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(i) a copy of the compact disc which recorded the question and answer of both men;
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(ii) copies of the witness statements of the witnesses referred to and relied on in the report;
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(iii) a copy of the post mortem report, ballistic certificate in respect of the swabbing and firearms, the crime scene report of Mr Peter Parkinson.
The letter explicitly states that ‘it is their intention to apply for judicial review in respect of the recommendations which was (sic) in the said report.’
The Commission responded by letter dated April 29, 2016:
Reference is made to the matter at caption and to your letter of the 23 rd instant advising of your retainer by Deputy Superintendent Everton Tabannah and Constable Worrell Latchman for the captioned purposes.
As regards your request that you be furnished with certain documents from our Investigations File (sic); please be advised that having regard to Section 28 of the Independent Commission of Investigations Act, we do not disclose statements received pursuant to our investigations unless to further an investigative purpose, or by way of disclosure after charges have been laid, as:
[a] the concerned officers have not yet been charged; and
[b] we are concerned for the security of the witnesses on which the prosecution intends to rely.
We will only disclose after charges have been laid and the appropriate orders have been made.
Thus it is this decision embodied in this letter that has sparked the application for leave to apply for judicial review.
The Commission has responded through Mr Terrence Williams. He is the Commissioner of Indecom. He begins by outlining his responsibilities, the structure of the Indecom and the like. The Commissioner speaks to a protocol developed between Indecom and JCF regarding the arrest of members of the JCF.
The Commission states that in some reports the whereabouts of witnesses are undisclosed where there are good reasons for doing so. Generally, this will be done to protect witnesses who are fearful or who ‘might be at risk of intimidation or tampering.’ The Commissioner states that in his experience as prosecuting counsel and as Commissioner he has become aware of ‘many witnesses who often express anxiety in giving statements against police officers.’ The cause of this anxiety is said to be ‘the perception that police officers may discover their whereabouts and interfere with them.’ Indecom therefore ‘conducts its operations in an endeavour to calm this anxiety, foster public confidence, and diminish the opportunity for witness tampering.’
The Commission explains that section 28 prevents him from disclosing evidence before charges are laid before against the police officer. Further he said that he did not permit disclosure of evidence collected in his investigations unless it is intended to further their function. The policy the Commission said ‘is grounded in our respectful view that such disclosure would be unlawful and for the concerns raised in the previous paragraph.’ The previous paragraphs spoke about the fear of witnesses. He continued that if he were to disclose the material the Commission's institutional reputation would be harmed and worsen the difficulties in getting witnesses to give statements.
The affidavit continued by stating that the Commission recognised that once the matter was before the court there is a duty to disclose. The Commission noted the delay in getting ballistic certificates in this particular fatal shooting. The Commission stated that the Commissioner personally reviewed the case file. Next comes the sequence of events in this particular case.
In this particular case it is said that the Commission received the applicants' letter. The Commission said that it made arrangements for the applicants to be placed before the Parish Court and caused copies of the evidence to be made for the purpose of disclosure. The Commission's investigator was given instructions on what order to request from the court.
The Commissioner said that he received the applications and supporting affidavits. He repeated in the affidavit what the practice of Indecom was.
The applicants did not appear in order to be charged at Freeport Police Station in St James. There was telephone contact between the applicants' counsel and the Commissioner. Out of the telephone conversations came clarity and both sides with the result that this application was filed. The Commission raised a number of objections to leave and imputed questionable motivations to the applicants. The court will now examine the objections and then determine whether the applicants have made their case to be granted leave.
In the written and oral submissions, Mr Small...
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