Forbes (Millicent) v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: HARRISON, P. , COOKE, J.A. , HARRIS, J.A: , HARRISON, J.A.
• Judgment Date: 20 December 2006
• Neutral Citation: JM 2006 CA 78
• Judgment citation (vLex): [2006] 12 JJC 2007
• Court: Court of Appeal (Jamaica)
• Date: 20 December 2006

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE HARRISON, P THE HON. MR. JUSTICE COOKE, J.A THE HON. MRS. JUSTICE HARRIS, J.A

BETWEEN

MILLICENT FORBES

APPELLANT

AND

THE ATTORNEY GENERAL OF JAMAICA

RESPONDENT

Richard Small & Mrs. Shawn Wilkinson instructed by Wong Ken & Co., for appellant

Patrick Foster, Ag. Deputy Solicitor General & Miss Carlene Larmond instructed by Director of State Proceedings for respondent

JUDICIAL REVIEW -

HARRISON, P.

1 This is an appeal from the decision of a majority of the Full Court (Gloria Smith, Dukharan, JJ Jones, J dissenting) on 24 ^th February 2005 refusing certiorari to bring up and quash a verdict of acquittal of the jury on 14 ^th April 2000 at the Portland Circuit Court on 15 ^th March 2004 on an indictment against Rohan Allen for the murder of one Janice Allen.

2 The relevant facts on the prosecution's case are that on 14 ^th April 2000 a party of policemen was on duty in the Trench Town area in the parish of St. Andrew. A discharge of firearms resulted in a bullet entering the back of the deceased resulting in her death. The bullet is alleged to have been fired from the firearm of Rohan Allen a member of the police party. As a result of investigations, the Director of Public Prosecutions in May 2001 ordered his arrest. He was indicted for murder.

3 The preliminary examination into the charge of murder commenced in the Resident Magistrates' Court for the Corporate Area on 26 ^th June 2001 and continued until November 2002 when Rohan Allen was committed to stand his trial at the Home Circuit Court. During the said period several delays occurred, due to the unavailability of witnesses and the interference with a documentary exhibit in the case, that is, the firearms' register kept at the Denham Town police station. Recorded in the register were entries of the particular firearm that had been issued to the accused Rohan Allen. Subsequent ballistics tests disclosed that the bullet which caused the death of Janice Allen had been discharged from that firearm. On 4 ^th July 2002 the preliminary examination was adjourned because of the absence of this register. Supt. Hewitt was requested to produce the said register. On 31 ^st July 2002, the relevant register was produced in Court, by a different police officer. The register contained entries to August 2000, but the pages containing the entries of 14 ^th April 2000 were missing. No explanation for the missing pages was given. Subsequently, the register was reported to have been destroyed by a fire at the Denham Town police station.

4 The case against Rohan Allen for murder was mentioned in the Home Circuit Court in January 2003. A change of venue was ordered and on 30 ^th June 2003 it was listed in the Circuit Court for the parish of Portland.

5 On 15 ^th March 2004 in the latter Circuit Court presided over by Hibbert, J., the accused Rohan Allen, on the direction of the learned trial judge was acquitted by the jury of the murder of Janice Allen. On that day the accused was arraigned and pleaded, a jury was empanelled and the prosecuting crown counsel opened his case to the learned judge and jury. Crown counsel offered no evidence against the accused for the reason that:

• (a) the firearms register which contained the entries of 14 ^th April 2000, linking -

  "the fragments removed from that body [which] matched perfectly the weapon that the Prosecution is alleging the defendant, Rohan Allen, to have been issued with and to have had at the time of the shooting."

  could not be found. It was allegedly -

  "destroyed in a fire at the Denham Town police station ..." and also

• (b) a statement given by the accused and recorded by the investigator Det. Sgt. Lynvall Dunchie, attached to the Department of Special Investigations could not be utilized by the prosecution. The maker Sgt. Dunchie,

  "... has since departed the jurisdiction. He is overseas, he is on sick leave and from all indications, based upon my enquiries, there is no likelihood of him returning because the sick leave keeps extending by his submissions of medical reports from the Unites States to the Police Headquarters here in Jamaica."

6 Hibbert, J then addressed the jury explaining to them the absence of evidence against the accused, due to the destruction of the firearms' register, the unreliable mere dock identification instead of the holding of an identification parade, and the absence of Det. Sgt. Dunchie -

"... who is no longer, apparently, in the Force and no longer in Jamaica and is unlikely to return to Jamaica;..."

7 He then directed the jury, in the circumstances, to return a formal verdict of not guilty of murder in respect of the charge against the accused Rohan Allen. The jury did so.

8 Subsequently, it was alleged that Det. Sgt. Lynvall Dunchie, who it had been reported to the Portland Circuit Court, to have been away from Jamaica in March 2004 and unlikely to return, was present at the sitting of the Coroner's Court in Kingston on 26 ^th May 2004 performing his duties as a police officer.

9 A fixed date claim form supported by an affidavit was filed on 14 ^th June 2004 by Millicent Forbes, the mother of the deceased against the Attorney General of Jamaica, claiming:

• "l. A Writ of Certiorari to quash the acquittal of Rohan Allen, for the murder of Janice Allen;

• 2. A declaration that the said trial holden at Port Antonio Circuit Court in the Parish of Portland on the 15 ^th March 2004, before the Honourable Mr. Justice L. Hibbert was a nullity;

AND TAKE NOTICE that the grounds upon which the relief is sought are:

• A. The acquittal of Rohan Allen was obtained by improper means, to wit a fraud upon the Office of the Director of Public Prosecutions and upon the Court,

• B. The administration of Justice in relation to Regina v. Rohan Allen was perverted."

10 On 12 ^th July 2004 an application for leave to apply for judicial review was filed. This application was heard by Wolfe, C.J., and refused on 1 ^st October 2004 for the reason that -

"... the verdict of the jury, is not amendable to Judicial Review and cannot be quashed by certiorari."

11 The refusal of application for leave was renewed for hearing before the full court (rule 56.5(1) and (2)) which refused leave. It is from the decision of the full court that this appeal arises.

12 The grounds of appeal are:

• (a) The learned judges of the majority of the Full Court erred when they failed to appreciate that uncontested affidavit evidence is as good as a confession of the matters alleged in the affidavit.

• (b) The learned judges of the majority of the Full Court erred in law when they failed to appreciate that the overriding objective of the C.P.R. 2002 is to deal with cases justly as stated in §1.1(1).

• (c) The learned judges of the majority of the Full Court erred in law when they failed to pay any, or sufficient regard to section 1.2 of the C.P.R. which states that "The Court must seek to give effect to the overriding objective when it: (a) exercises any discretion given by the Rules; or (b) interprets any rules."

• (d) The learned judges of the majority of the Full Court erred in law when they decided that they did not have jurisdiction to set aside the directed verdict of acquittal by the jury at the Portland Circuit Court on March 15, 2004, in circumstances where the information which formed the basis for obtaining the verdict of acquittal was a misrepresentation and a fraud.

• (e) The learned judges of the majority of the Full Court erred in law when they decided that the claimant did not raise a case sufficient to entitle her to be granted leave to apply for judicial review."

13 The appellant, in her affidavit dated 14 ^th June 2004 filed in support of her application for leave to apply for Judicial Review recited several events following the shooting of the deceased, described as attempts to "pervert the course of justice." They were the shooting and charging on 14 ^th April 2000, of one Calvin DaCosta, an alleged eye-witness to the event, and his subsequent acquittal, the arrest and detention at a police station of Andre Undo the appellant's son on 14 ^th May 2001 and subsequent release without being charged, the abuse of her daughter and herself by policemen at police stations when they went to enquire as to the whereabouts of Andre, the visits by men to the appellant's home, also in May 2001, dissuading her from continuing her insistence on legal proceedings and offers of $150,000.00 and $125,000.00 on separate occasions, respectively, in May 2001 "to finish away with the case".

14 The main issues that arose in this appeal are:

• a. Whether or not the full court had the jurisdiction to grant leave to apply for the issue of an order of certiorari to quash the jury's verdict of acquittal.

• b.If not, whether the full court had the jurisdiction, in the exercise of its inherent jurisdiction to set aside the said verdict.

15 The prerogative order of certiorari, traditionally, was the means by which the High Court, in the exercise of its supervisory power of control over inferior court and tribunals, could call up and quash the latter's decision or proceedings. (Administrataive Law by Wade and Forsyth, (1944) 7 ^th Edition, page 626.

16 The said authors at page 640 further said:

"The High Court and other superior courts are beyond the scope of these remedies [certiorari and mandamus etc], not being subject to judicial review."

17 See also Re Racal Communications Ltd [1980] 2 All ER 634. Lord Diplock, defining the scope of judicial review, at page 640 said:

"Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an...