Forbes (Millicent) v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: G. SMITH, J. , DUKHARAN J. , JONES J, (Dissenting)
• Judgment Date: 24 February 2005
• Judgment citation (vLex): [2005] 2 JJC 2401
• Court: Supreme Court (Jamaica)
• Date: 24 February 2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

BEFORE:

THE HONOURABLE MISS JUSTICE GLORIA SMITH THE HONOURABLE MR. JUSTICE MAHADEV DUKHARAN THE HONOURABLE MR. JUSTICE ROY JONES

BETWEEN

MILLICENT FORBES

CLAIMANT

AND

THE ATTORNEY GENERAL OF JAMAICA

DEFENDANT

JUDICIAL REVIEW - Availability of, in circumstances

G. SMITH, J

1 This is a renewed application for leave to apply for Judicial Review.

2 The facts of this case are well known and documented. Janice Allen a 13 year old girl died as a result of gun shot wounds she suffered on April 14, 2000, in West Kingston. It is alleged by the police that a party of policemen were on operations in West Kingston on April 14,2000 when they came under fire by gun men. The police returned the fire and it was in those circumstances Janice Allen was fatally shot.

3 On the other hand, this is denied by Ann-Marie Allen sister of the deceased who stated that Janice was fatally shot after the cessation of the "shoot-out".

4 Subsequently, Rohan Allen a member of the Jamaica Constabulary Force was arrested and charged for the murder of the said Janice Allen. A preliminary examination was held, and the accused Rohan Allen was committed to stand trial before the Circuit Court.

5 The matter came up for trial in the Portland Circuit Court, before the Hon. Mr. Justice Lloyd Hibbert. The accused pleaded not guilty and a jury was empanelled to hear his case. The Crown was represented by Mr. Herbert McKenzie of the Office of the Director of Public Prosecutions. He opened the prosecutions case by outlining the allegations and then advised the Court that the prosecution was unable to prove the case against Rohan Allen because of the unavailability of crucial and essential evidence.

6 As a result the prosecution offered no evidence and the Hon. Mr. Justice Hibbert then directed the jury who had by then been put in charge of the case to return a verdict of not guilty. Having been so instructed by the judge the jury returned a verdict of not guilty and the accused was discharged accordingly.

7 It is now common knowledge that the information upon which the prosecuting attorney relied when he informed the court as to the unavailability of the crucial and essential evidence was untrue.

8 The Applicant on her renewed application is seeking Leave to apply for Judicial Review pursuant to the C.P.R 2002 56.5(1) (a).

9 Mr. Small in support of this application argued that the process of the court had been abused. It was therefore unnecessary to cite authorities to show that the court has inherent jurisdiction to protect itself from abuse. He stated that there were a series of coincidences which pointed to one conclusion that there was a conspiracy to interfere with the administration of Justice to ensure that no one should be tried or convicted for the killing of Janice Allen in 2000.

10 He cited three features of this pattern of co-incidences:

• a) The pattern of harassment and intimidation of the family of Janice Allen by the police

• b) A conspiracy to pervert the course of justice

• c) The pattern of interference or fraud which resulted in the misleading of a Judge of the Supreme Court and a jury empanelled to carry out a trial of Rohan Allen.

11 Mr. Small further argued that the outcome of the case had questionable validity as what took place in court was knowingly obtained by fraud for an ulterior, improper motive. He submitted that in fact and in law there was no true verdict given as it was void ab initio based as it was on a fraud perpetuated against the administration of justice.

12 He categorically stated that he was not asking for Judicial Review of anything Justice Hibbert did in the Portland Circuit Court as he recognized that the decision of a Superior Court was not subject to Judicial Review as a court of equal jurisdiction cannot review a court of equal jurisdiction. In addition he was not asking the Court to review the verdict of the jury or to go behind the veil of secrecy which goes behind the functions of a jury. Instead he was asking the Court to examine the surrounding facts to see whether any of those persons used the office of judge and jury to achieve a purpose, which they could not allow the light of day to examine.

13 Mrs. Nicole Foster-Pusey for the Defendant responded to the submissions by referring to the case of Max Marshalleck v Inspectors Branch Board of the Police Federation. Supreme Court Case Claim 1796/2004 heard on 28 ^th September and 13 ^th October 2004 where it was stated that "The purpose or requirement for leave is to eliminate cases which were brought for frivolous, hopeless or vexatious reasons". She submitted that the Defendant was not saying that this case was vexatious but that it would be an act in vain as the case was hopeless.

14 She submitted further that the surrounding circumstances and issues raised by the applicant were:

• a) Harassment of claimant;

• b) The detention of the claimant's son;

• c) The "Godfather" offering money to drop the case;

• d) The offer by persons to pay funeral expenses;

• e) The Firearm Registry not being available;

15 These were not things for the Court to enquire into or do anything about. Therefore all that was left was what took place in the Portland Circuit Court. The only possibility which exists to have the decision of that Court quashed is if there is Judicial Review. If as was conceded by the applicant, that the Supreme Court cannot review a decision of a court of the same level, then it follows that Judicial Review is not an available remedy.

16 Mrs. Foster-Pusey also submitted that the Attorney-General was not a proper party to Judicial Review proceedings. An order for certiorari is a Prerogative Remedy and thus cannot lie against the Crown, since it is at the suit of the Crown that it is sought. See Wade & Forsyth, Administrative Law, 7 ^th Edition p.637.

17 The applicant has alleged that the acquittal was obtained by improper means, namely fraud. Mrs. Foster-Pusey submitted that after the acquittal of Rohan Allen, based on allegations that the prosecutor and the Court were misled, the Bureau of Special Investigation conducted investigations with a view to ascertaining whether there was any basis upon which criminal charges could be preferred. The file was submitted to Mr. Kent Pantry Q.C. D.P.P for his findings. The D.P.P found that there was no evidence to support any criminal charges.

Conclusions :

18 The circumstances surrounding this case to say the least are sad, tragic, repugnant and repulsive. It emphasizes the need for an independent body to investigate cases against members of the JCF. It is my view, that an arm of the JCF should not be investigating its own officers as it may be perceived as being unfair, biased, and not impartial as is desired. In looking at whether or not to grant leave for Judicial Review the Court must however be guided by certain established principles. The C.P.R 2002 does not assist as to the circumstances in which leave should be granted. Regard must therefore be had to case law which suggests that leave is generally granted unless the case being brought is frivolous, vexatious or hopeless.

19 The White Book Service, Civil Procedure 2003, Paragraph 54. 4.2 at Page 1351 states:

"The purpose of the requirement for permission is to eliminate at an early stage, claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the Court is satisfied that there is a case fit for consideration."

20 What has been urged on this Court on behalf of the Applicant is that the Court ought to exercise its inherent jurisdiction by preventing the abuse of process. It was stated that the outcome of the case against Rohan Allen had a questionable validity, as what took place was obtained by fraud for an ulterior, improper motive and that there was no true verdict given as it was void ab initio based as it was on a fraud perpetuated against the administration of Justice.

21 In the case of R v Ashford (Kent) Justices, ex-parte Richley, 1955 3 ALL ER 604 at p.610 , Singleton, L.J. stated:

"I venture to say that I think an order of certiorari to quash proceedings on the ground that they were procured by fraud or perjury should seldom if ever be made unless the facts regarding the alleged fraud or perjury have either been the subject of a conviction in regular criminal proceedings against the person to whom fraud or perjury is imputed, or else have been admitted by something amounting to a confession by such person."

22 In addition, it should be shown that the perjured evidence was given in collusion with the party who benefited from the perjury or fraud. In my view what Singleton L.J enunciated in the foregoing case is a condition precedent and not a finding to be made at a Judicial Review hearing.

23 Based on:

it is my considered view that the very basis upon which the applicant was relying to say what took place in the Portland Circuit Court is void ab initio has evaporated.

• a) What Mr. Pantry Q.C. said in his Affidavit that after investigations were carried out there was no evidence upon which any criminal charge could have been laid against anyone;

• b) There has been no confession by anyone as to a fraud or perjury;

24 I am therefore of the opinion that the acquittal of Rohan Allen at the sitting of the Portland Circuit on the 15 ^th day of March 2004 is not open to Judicial Review and cannot be quashed by certiorari, as a decision of a Superior Court is not subject to Judicial Review by a Court of equal jurisdiction.

25 The Attorney General is not a proper defendant to Judicial Review proceedings, as an order for certiorari is a Prerogative Remedy and thus cannot lie against the Crown.

26 In keeping with the practice where the purpose of...