Gerville Williams and Others v Commissioner of Independent Commission of Investigations and Others

JurisdictionJamaica
JudgeLawrence-Beswick J,Sykes J,F. Williams J
Judgment Date25 May 2012
Neutral Citation[2012] JMFC Full 1
Docket NumberCLAIM NO. 2011 HCV06344
CourtSupreme Court (Jamaica)
Date25 May 2012

[2012] JMFC Full —

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Cor:

The Honourable Mrs Justice Lawrence-beswick

The Honourable Mr Justice Sykes

The Honourable Mr Justice F Williams

CLAIM NO. 2011 HCV06344

Between
Gerville Williams
1st Claimant

and

Orrett Williamson
2nd Claimant

and

Francis Rennals
3rd Claimant

and

Devon Noble
4th Claimant

and

David Hutchinson
5th Claimant

and

Petro Greene
6th Claimant

and

Marcel Dixon
7th Claimant

and

Kenneth Daley
8th Claimant
and
The Commissioner of the Independent Commission of Investigations
1st Respondent

and

The Attorney General
2nd Respondent

and

The Director of Public Prosecutions
3rd Respondent

Mrs Carolyn Reid-Cameron and Mr Chukwuemeka Cameron instructed by Carolyn C Reid and Co for the Claimants

Mr Richard Small and Mrs Shawn Wilkinson instructed by Shawn Wilkinson for the 1st Respondent

Ms Althea Jarrett for the 2nd Respondent

Mr Adley Duncan for the 3rd Respondent

CONSTITUTIONALITY OF LEGISLATION — WHETHER SECTION 21 OF INDEPENDENT COMMISSION OF INVESTIGATION ACT BREACHES CONSTITUTION — TEST FOR UNCONSTITUTIONALITY — NEW CHARTER OF RIGHTS AND FREEDOMS — WHETHER NEW TEST NEEDED — RIGHT AGAINST SELF INCRIMINATION — RIGHT TO SILENCE

Lawrence-Beswick J
Introduction
1

On May 2, 2012 we dismissed the claimants’ case in its entirety and promised to put our reasons in writing. These are the reasons. The claimants are police officers and on Friday, August 13, 2010, they formed a team which was on operation in the Tredegar Park Community. There was heavy gunfire and at the end of the operation two men lay dead.

2

The 1st respondent, the Commissioner of the Independent Commission of Investigation (Indecom) launched an investigation into the circumstances of the death of these men and in the course of that sought to obtain information about the deaths from the claimants.

3

The claimants, on the advice of their attorneys-at-law, indicated that they did not wish to answer any questions put to them by an investigator of Indecom and were thereafter prosecuted for failing to comply with a lawful requirement of the Commission to provide a statement and answer questions concerning the operation.

4

They were placed before the Resident Magistrate's Court and their trial began. They sought to persuade the presiding Magistrate that the Constitution provided them with protection from prosecution on the charges but the arguments did not find favour with her.

5

They now bring this matter before the Constitutional Court seeking redress. The Attorney General (AG) and the Director of Public Prosecutions (DPP) are the other respondents, the AG as the representative of the Government and the DPP as a person having an interest because of her constitutional powers and authority.

Reliefs Sought
6

The claimants are in this matter seeking declarations concerning constitutional rights not only of themselves but also of suspects in similar circumstances and including a declaration that any requirement for them to answer questions posed by an investigator of Indecom is a violation of their constitutional right against self incrimination and of their common law right to remain silent.

7

The claimants submit that they are here challenging:

  • (a) “the acts of Indecom and the process that was adopted” and

  • (b) the constitutionality of the Act setting up the Commission. They are not challenging “the Resident Magistrate or the decision to prosecute by the DPP.”

8

The reliefs they seek are:

  • (a) A Declaration that the right not to be compelled to testify against himself or to make any statement amounting to a confession or admission accrues to the claimant.

  • (b) A Declaration [that the right] to silence accrues to the claimant.

  • (c) A Declaration in (a) continues to be contravened by the prosecution in prosecuting the claimant under Section 33 Indecom Act.

  • (d) A Declaration in (b) continues to be contravened by the prosecution under Section 33 Indecom Act.

  • (e) A Declaration that the Indecom Act does not compel persons named as suspects to give evidence against themselves.

  • (f) and (g) A Declaration that the claimants were deprived of an independent and impartial prosecution.

  • (h) A Declaration that paragraphs 4 and 5 of the caution administered by the Commissioner deprived the claimants of an independent and impartial prosecution.

  • (i) A Declaration that claimants were deprived of expectation that DPP would have prosecuted them, not Indecom.

  • (j) A Declaration [that] the claimants could not be compellable in court of law.

  • (k) A Declaration [that] the claimants’ right to freedom of movement was and continues to be contravened by the Commissioner in prosecuting the claimants for failure to attend at the Video Identification Unit on September 14, 2010.

  • (l) A Declaration that the requirement by the Commissioner under Section 21(1) and (5) of the Indecom Act that the police furnish a statement is null and void by virtue of Section 2 of the Constitution since it breaches the right to equality of treatment under Section 13 (3)(g) of the said Constitution.

  • (m) An order that the criminal proceedings instituted against the claimants by information number 9454/05 in the Resident Magistrate's Court, for the Corporate Area being held at Half Way Tree be discontinued by the first respondent.

  • (n) A stay of any proceedings in the Resident Magistrate's Court arising from the first respondent's decision to proceed with the prosecution proceedings pending determination of the action herein.

  • (o) An order of Prohibition to restrain the Resident Magistrate of the parish of St. Andrew, or any other Resident Magistrate of the island of Jamaica, from holding or continuing any proceedings in furtherance of the aforesaid charge laid or purportedly laid against the claimants.

9

Meanwhile Indecom urges the Court to accept that no rights have been breached by its actions and that in any event the rights stated in the Constitution are not absolute but are subject to certain exceptions under which the Indecom Act would fall.

Background
10

The police started to investigate the circumstances of the death of the two men but within days Indecom took over the investigations. The instructions from Indecom to the claimants and their attorneys-at-law changed often but the overall purpose appeared to be to obtain information from the claimants and also to put them on an identification parade.

There was no clear decisive action by Indecom as it concerned informing the claimants as to the place, time and reason for attending on the Indecom officers. The number of notices served, and then altered, and the correspondence reflecting changes exemplifies that.

Notices and Correspondence
11

Indecom issued several notices to the claimants. They were served with:

Letters

A letter of December 31, 2010 from Indecom changed a proposed Court date of December 31, 2010 to January 7, 2011.

Another letter dated January 7 indicated there was to be a change of Court date to a date unspecified because a video identification parade was to be held on January 7.

The notices and letters elicited further correspondence. Attorneys-at-law representing the claimants had both sent letters dated September 14, 2010 to Indecom asking that a more convenient date be agreed as they were unable to attend on that date. The claimants did not attend asserting that they had the understanding that the meeting was being rescheduled because of the unavailability of their attorneys-at-law.

Later, letters also passed between Indecom and the police authorities dated December 16 and 17, 2010 asking for arrangements to be made for the claimants to be transported to named places for the ‘necessary process’ to be executed on them on December 20, 2010 after which they would be put before the Court.

Meanwhile, by telephone, Indecom sought to arrange for an identification parade to be held for the claimants on December 30. The notice was too short for the lawyers representing the claimants and they proposed January 5, 2011.

  • (1) A “Notice to Suspect” dated August 25, 2010 concerning an identification parade.

  • (2) A notice dated September 1, 2010 requiring them to attend September 14, 2010 at the Video Identification Unit and “report to officers of Indecom to furnish to them a statement, and to answer questions touching and concerning their action, the actions of other members of the JCF and JDF and all occurrences witnessed by them in the vicinity of Tredegar Park (between August 12 and 13, 2009)……..including the circumstances that lead (sic) to the death of Mr Derrick Bolton and Mr Rohan Dixon.”

  • (3) A notice dated September 13, 2010 concerning an identification parade.

  • (4) Two notices, one unsigned and one signed dated December 20 2010, requiring attendance on January 3, 2011 at the Indecom's office with a statement and to answer questions as per the September 1 notice. Those were served on December 18, two days before the date they bore.

  • (5) A notice dated January 3 requiring the claimants to attend with the statement and to answer questions on January 21, 2011.

12

In a letter dated January 14, 2011, Indecom informed the attorneys-at-law for the claimants that they should make their first appearance in Court on January 20 to be prosecuted for their failure to comply with a lawful requirement of Indecom.

13

A summons dated January 14, 2011 required them to attend on January 20, 2011 at Court to answer to a charge of failing to comply with a lawful requirement of Indecom.

14

A letter from the claimants’ attorney-at-law dated January 20, 2011 sought confirmation that the appointments for January 21 had been cancelled by Indecom.

15

The date for Court appearance was also changed to January 21 on which date they made their...

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14 cases
1 books & journal articles
  • INDEPENDENT CRITICAL INCIDENT INVESTIGATION AGENCIES: A UNIQUE FORM OF POLICE OVERSIGHT.
    • United States
    • Albany Law Review Vol. 83 No. 3, March 2020
    • 22 Marzo 2020
    ...(N.D. Ill. 2017) (officer-initiated lawsuit alleging malicious prosecution); Williams v. Comm'r of the Indep. Comm'n of Investigations, [2012] JMFC Full 1 (confirming INDECOM right to compel cooperation of officers in investigations); Comm'r of the Indep. Comm'n of Investigations v. Comm'r ......

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