Grant et Al v Director of Public Prosecutions
| Jurisdiction | Jamaica |
| Judge | Smith, C.J.,White, J.,Campbell, J. |
| Judgment Date | 27 July 1979 |
| Court | Supreme Court (Jamaica) |
| Docket Number | M. No. 6 of 1979 |
| Date | 27 July 1979 |
Supreme Court
Smith, C.J., White, J.; Campbell, J.
M. No. 6 of 1979
K. Hudson-Phillips, Q.C. and K.D. Knight for E. Grant, Schooler & Marsh.
I. Ramsay and N. Linton for D. Grant & Robinson.
H. Hamilton for King, Reid and Frater.
P. Atkinson for Stain Rod and Haik.
I. Forte (D.P.P), Henderson Downer & H. Gayle for the respondent.
L. Ellis and R. Langrinamici curiae.
Constitutional Law - Fundamental rights and freedoms — Right to a fair hearing — Whether applicants' right likely to be contravened by pre-trial publicity.
Constitutional Law — Director of Public Prosecutions — Powers.
Practice and Procedure — Indictment.
Constitutional Law — Liberty of the Press.
Practice and Procedure.- Pre-Trial Publicity.
The several applicants apply jointly for redress under s.25 of the Constitution.
The applicants are members of the Jamaica Defence Force. The applicants Robinson, Schooler, Frater, Haik and Marsh are charged jointly on indictment with conspiracy to murder. The others are charged jointly with Robinson and Schooler on a separate indictment with murder in five counts. The indictments were preferred by the director of public prosecutions following a coroner's inquest held at Spanish Town into the deaths of five persons, who were shot and killed in an incident at Green Bay in the parish of Saint Catherine on January 5, 1978. The jury found, by their verdict on May 22, 1978, that the five persons came by their deaths “due to murder” by person or persons “but their names are unknown” to the jury.
The indictments are dated July 4, 1978 and were preferred in the circuit Court for the parish of Saint Catherine. Application was made to Rowe, J. sitting in that Court, for the issue of bench warrants for the arrest of the applicants in order that they may answer to the charges as laid in the indictments. Rowe, J. granted the application and issued his warrants which recited that the indictments were preferred by the director of public prosecutions “by virtue of s.2 of the Criminal Justice (Administration) Act”. On July 7, 1978, the applicants were arrested and charged upon the warrants and were admitted to bail on the same day.
On September 18. 1978, the venue of the trials was changed to the Circuit Court for the parish of Manchester by order of Willkie, J., sitting in the Saint Catherine circuit Court. The order was made on the application of counsel for the applicants, the grounds of the application were — grave localised prejudice aggravated by Island-wide media publicity given to the issue, the fact that a jury from the same parish had already pronounced ‘guilty’ upon the said issues, and the relevance of reasonably controllable security arrangements” (see joint affidavit of applicants dated January 23, 1979).
On January 24, 1979 a notice of motion was filed on behalf of the applicants for the hearing of an application “that certain provisions of sections 14–24 (of the Constitution) have been, are being and/or are likely to be contravened in relation to them” and for the grant of the following reliefs:
“A. A declaration :
(1) that the rights of the applicants under s. 20(1) of the Constitution to a ‘fair hearing as accused persons upon criminal charges pending trial in the Circuit Courts of this Island have been, are being and/or likely to be contravened by massive pretrial publicity and prejudice.
(2) (a) that the rights of the aforesaid applicants as persons charged with criminal offences to the presumption of innocence under s. 20(5) of the Constitution have been eroded by matters forming the basis of (A)(1) above:
(b) alternatively that such constitutionally guaranteed presumption of innocence has been judicially reversed by the verdict of a jury in inquest proceedings.
(3) (a) that the rights of the applicants under s.15 of the aforesaid Constitution have been infringed by reason of the preferment of the aforesaid indictments which are null and void and preferred without any legal or constitutional authority and/or in breach of natural justice:
(b) alternatively that the preferment of the aforesaid indictments in these particular circumstances constitutes a contravention of s. 20 (1) of the aforesaid Constitution.
B. An Order:
(1) that the said indictments be directed to be withdrawn in accordance with the provisions of a. 20(1) and s. 25(1) & (2).
Further or in the alternative –
(2) that the said indictments be struck out by reason of contravention of s.20(5) of the Constitution.
Further or in the alternative –
(3)(a) that the said indictments be quashed as having contravened s.15 of the Constitution.
Further or in the alternative –
(b) that the indictments be set aside as constituting a violation of s.20(1) of the Constitution.
AND/OR
(4) that the applicants be unconditionally discharged “
The respondent raised a preliminary objection to the hearing of the application, the burden of which was that the applicants, assuming their constitutional rights have been infringed as alleged, may obtain redress at the criminal trial, or in the Court of appeal if they are convicted, and that this Court is, therefore, precluded by the provisions of proviso to s.25(2) of the Constitution from exercising its powers under s.25(2). It was submitted that these proceedings are collateral to the pending criminal proceedings and this Court should, therefore, stay these proceedings either under powers contained in the proviso to s.25(2) or in the exercise of the inherent powers of the Court to stay collateral proceedings, to which reference was made by Lord Diplock in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) [1978] W.L.R. 902 at 912. It was also submitted that the Constitution does not protect the applicants against pre-trial publicity that, in any event, the protection provided in s.20(1) is against infringements by the state and no allegation of any such infringement has been made. As regards the presumption of innocence; it was submitted that this right cannot be infringed by pre-trial publicity.
For the applicants, in answer to the preliminary section, it was submitted, as regards the proviso to s. 25(2), at a distinction must be made between rights of a constitutional nature created and enshrined and rights existing “under any other law.” It was said that although the applicants might have had no right of action or remedy under pre-existing law in respect of the procedure and manner of the preferment of indictments and process and the question of pre-trial publicity, the arguments for the applicants will show that under the Constitution there has been created a bundle of constitutional rights, the violation of which is to be remedied under the Constitution and not under any other law. It was submitted, as regards pre-trial publicity, that redress in respect of the trial of the applicants cannot be obtained by proceedings against private persons, that the Constitution guarantees a fair trial and that if this cannot be obtained the state must desist from prosecution of the applicants. Counsel submitted that until full argument is heard it would not be prudent for the Court to decide that it is satisfied that adequate means of redress are available under other law.
The preliminary objection was over-ruled. In my opinion, an applicant for redress under s.25 should not be sent away without a hearing of his application unless it manifestly appears either that there is no merit in his application or that adequate means of redress are, or have been, otherwise available. That is not so in this case. In the way that the alleged contraventions of the applicants' constitutional rights are framed in the notice of motion, justice could only be done by a full hearing of their application on the merits. If, for the example, the right to the presumption of innocence under s.20(5) was capable of being infringed in the way alleged, redress could not be obtained at the criminal trial and one could not justifiably tell the applicants that they should submit themselves to a trial and then raise the point on appeal if they are convicted. The need to hear argument on the merits to dispose of the application was emphasised by the fact that counsel for the respondent found themselves arguing the merits from time to time in support of the preliminary objection.
The grounds upon which the applicants based their application for redress resulting from the alleged prejudicial pre-trial publicity are stated in the notice of motion as follows:
“(a) That the applicants aver that it is a matter of notorious and common knowledge that massive media publicity given to an anti-crime operation by the Army at Green Bay in the parish of Saint Catherine which resulted in the deaths of five (5) persons; and the prejudice disseminated in such publicity that the deceased were ‘innocent’ and that the Army personnel involved in the operation were ‘guilty’ created a situation in which such guilt of Army personnel involved in the operation has been taken for granted in public discussions and debates on the matter.
(b) That a deliberate brainwashing process was embarked upon consequent to the verdict of the coroner's inquest in the matter on the 22nd day of May, 1978, which said process has made the word Green Bay synonymous with ‘foul play’ and with ‘massacre’, and analogous to the massacre at Mai Lai in Vietnam.
(c) That the above publicity exercise took as its starting point the verdict of the Coroner's jury that persons unknown had committed Murder and Conspiracy to Murder in respect of the deceased and the Green Bay affair.
(d) That the publicity exercise was not limited to advertisements of ‘Guilty of Murder’ and ‘Conspiracy to Murder’, so to speak, stemming from (c) above, but actively canvassed the issues — for example, whether any of the...
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