Independent Commission of Investigations and Another v Tie

• Jurisdiction: Jamaica
• Judge: Thompson-James J
• Judgment Date: 21 August 2015
• Neutral Citation: [2015] JMSC Civ 173
• Docket Number: CLAIM NO. 2015 HCV 03451
• Court: Supreme Court (Jamaica)
• Date: 21 August 2015

[2015] JMSC Civ 173

Counsel's Advance Copy

IN THE SUPREME COURT OF JUDICATURE THE CIVIL DIVISION

CLAIM NO. 2015 HCV 03451

Between

Commissioner, the Independent

Commission of Investigations

1st Applicant

Mollie Plummer

2nd Applicant

and

Carolyn Tie, Senior Resident Magistrate Montego Bay Resident Magistrate's Court

Respondent

Mr. Richard Small and Ms. Courtney Foster for the Applicants.

Mrs. Althea Jarrett instructed by the Director of State Proceedings for the Respondent .

Judicial Review — Application for leave to apply for Judicial Review — Whether Applicants have arguable grounds with a realistic prospect of success — Whether delay in bringing Application — Whether discretionary bar — Whether Alternate Remedy — Whether Undue delay — Whether decisions of Resident Magistrate lawful — Criminal Justice Reform Act.

Thompson-James J

Factual Background

1 This is an application by the Commissioner of the Independent Commission of Investigations (INDECOM), Mr. Terrence Williams, and Ms. Mollie Plummer, former Acting Senior Investigator employed to INDECOM, for leave to apply for Judicial Review against the Senior Resident Magistrate for the parish of St. James, Carolyn Tie, in respect of decisions taken by her in R v Wycliffe Williams and R v Alman Fletcher as set out in the Applicant's Notice of Application from (a) to (g), and as amended at hearing on the 11 ^th August 2015.

2 In the matter of R v Wycliffe Williams (Info. Nos. 6308/13 & 6309/13), charges were laid against Corporal Wycliffe Williams by Ms. Mollie Plummer pursuant to a final investigative report issued by INDECOM on the 12 ^th day of November, 2013. Mr. Williams was charged with Assault Occasioning Bodily Harm and Unlawful Wounding, arising from an incident occurring at the Mood's Night Club, Montego Bay in the parish of St. James. The matter was first mentioned before the Montego Bay Resident Magistrate's Court on 18 ^th December 2013, and mentioned again on January 29, 2014, and was set for trial on the 2 ^nd June 2014. On the date for trial the matter was adjourned to November 3, 2014, and thereafter, on that date, it was adjourned once more to February 3, 2015. It is to be noted that, on June 2, 2014, an additional charge of ‘Attempting to Pervert the Course of Justice’ was laid by the informant/2 ^nd Applicant.

3 On 3 ^rd February 2015, after it was indicated to the Magistrate, upon request, that there was no fiat , submissions were made as regards the standing of the Applicants and their Counsel, after which the Clerk of Court proceeded to take over conduct of the matter, and the Respondent sent the parties to mediation. On June 22, 2015 when the matter was next mentioned, a new Clerk of Court informed the Magistrate that a settlement had been reached pursuant to the mediation, and the case was dismissed after a few administrative procedures were observed. The Senior Resident Magistrate/Respondent presided over the entirety of the matter, save and except for one occasion on November 3, 2014, when the matter came before Mrs. Granger Resident Magistrate for the parish of Saint James. The informant was represented in the Magistrate's Court by Mrs. Krystle Diana Blackwood, Senior Legal Officer for INDECOM, and Mr. Terrence Williams, Commissioner of INDECOM, Mr. Williams later being replaced by Mr. Herbert McKenzie.

4 In the matter of R v Alman Fletcher (Info. No. 6207/13), charges were laid against Constable Alman Fletcher by Ms. Mollie Plummer pursuant to a final investigative report issued by INDECOM on the of October 28, 2013. Mr. Fletcher was charged with Unlawful Wounding, arising from an incident on Harbour Street, Montego Bay, in the parish of St. James. The matter was first brought before the Montego Bay Resident Magistrate's Court on December 11, 2013, and was thereafter mentioned on January 27, 2014, March 26, 2014 and August 7, 2014. On the latter date, Mrs. Blackwood who represented the 2 ^nd Applicant, indicated to the Magistrate, upon request, that she did not have a fiat but proceeded to make submissions as to why she had standing to prosecute on behalf of the Informant/2 ^nd Applicant. Written Submissions were submitted to the Magistrate and the matter adjourned to September 1, 2014, at which time further submissions on the issue of standing were made by both parties. The matter was again adjourned to October 2, 2014 and thereafter October 7, 2014, November 3, 2014, November 11, 2014, March 18, 2015, until it was finally set for trial on June 19, 2015. On the latter date, after again being asked by the Magistrate, Mrs. Blackwood indicated that she did not have a fiat. After further submissions by Mrs. Blackwood as to standing, the Magistrate advised that she would await the decision of the Court of Appeal in the appeal of The Police Federation et al. v The Commissioner of INDECOM et al [2013] JMFC Full 3, and the matter was adjourned. The next mention date is set for the September 23, 2015.

5 The Applicants seek to impugn seven (7) decisions of the Magistrate, taken on four (4) different occasions, involving the two (2) matters that came before her. The particulars of those decisions are set out at (a) to (g) of the Applicant's Notice of Application filed August 4, 2015, and are as follows:

• a. Decided, on February 3, 2015 and June 22, 2015 not to permit Counsel for the Informant/Prosecutor (that is, the 2 ^nd Applicant) to appear and conduct the prosecution of R v Wycliffe Williams and to have the Clerk of Courts take over the conduct of the prosecution;

• b. Ruled in R v Wycliffe Williams on February 3, 2015 that the 2 ^nd Applicant, the Informant/Prosecutor had to await the hearing of the appeal of The Police Federation et al. v The Commissioner of INDECOM et al [2013] JMFC Full 3 matter before she could rule on the question of whether the Informant/Prosecutor had a right to conduct the prosecution herself or by counsel appointed by her;

• c. Discharged the matter of R v Wycliffe Williams, on June 22, 2015, based on the mediation process which the Respondent had referred the matter to on February 3, 2015;

• d. Dismissed the matter of R v Wycliffe Williams, on June 22, 2015, without there being an order for indictment;

• e. Dismissed the matter of R v Wycliffe Williams, on June 22, 2015, without the Informant/Prosecutor being given an opportunity to lead evidence;

• f. Ruled in R v Alman Fletcher , on November 11, 2014 and June 19, 2015, that the 2 ^nd Applicant, the Informant/Prosecutor had to await the hearing of the appeal of the The Police Federation et al. v The Commissioner of INDECOM et al [2013] JMFC Full 3 matter before she could rule on the question of whether the Informant/Prosecutor had a right to conduct the prosecution herself or by counsel appointed by her;

• g. Decided, on June 19, 2015, not to permit Counsel for the Informant/Prosecutor (that is, the 2 ^nd Applicant) to appear and conduct the prosecution of R v Alman Fletcher and to have the Clerk of Courts take over the conduct of the prosecution.

6

The Applicants seek the following reliefs:

[7] Grounds:

The grounds on which the Applicants rely are as follows:

• 1. A declaration that the Informant/Prosecutor in the matters of R v Wycliffe Williams and R v Alman Fletcher had a right to conduct a prosecution herself or, by counsel appointed by her;

• 2. A declaration that the Respondent's decision not to permit the Informant's/Prosecutor's Counsel to appear in the aforesaid matters, and to have the Clerk of Courts conduct same was a breach of statutory duty, procedurally improper, a breach of the principles of natural justice and as such a nullity;

• 3. In relation to the R v Wycliffe Williams matter, a Declaration that under Section 16 of the Criminal Justice Reform Act, the Informant's/Prosecutor should give her consent before a case is referred to mediation;

• 4. In relation to the R v Wycliffe Williams matter, a Declaration that the Respondent's decision to refer a case involving a charge of Attempting to Pervert the Course of Justice to mediation was “Wednesbury unreasonable”;

• 5. In relation to the R v Wycliffe Williams matter, a declaration that the Respondent's decision to dismiss the case was a breach of statutory duty, procedurally improper, a breach of the principles of natural justice, and thereby a nullity;

• 6. In relation to the R v Wycliffe Williams matter, an order of Certiorari to quash the decision of the Respondent and to remit the matter for trial;

• 7. In relation to both the matters of R v Wycliffe Williams and R v Alman Fletcher, an order of Mandamus directing the Respondent to allow, according to law, the Informant's counsel to prosecute the matters and, specifically in relation to the R v Wycliffe Williams matter be remitted for trial;

• 8. In relation to the matter of R v Alman Fletcher, that the proceedings be stayed until the resolution of this Application;

• 9. Any other order, relief and/or direction that this Honourable Court may determine to be appropriate and/or just.

• i. That the Respondent was incorrect in ruling in R v Wycliffe Williams and R v Alman Fletcher that the Informant/Prosecutor or her counsel had to await the ruling in The Police Federation et al. v The Commissioner of INDECOM et al, on appeal, for the following reasons: a) the issues raised before the Respondent were not before the Court of Appeal for review; b) there was a binding decision of the Constitutional Court in The Police Federation et al. v The Commissioner of INDECOM et al. by which the Respondent was bound; c) even if there were not such a binding decision, there were considerable decisions in law and statutory provisions which were placed before the Respondent and on which the court was called upon to rule;

• ii. That the 2 ^nd Applicant was permitted, by law, to conduct the prosecution;

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