Mervin Cameron v Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | Sykes J,D. Fraser J,Anderson J,and |
| Judgment Date | 22 March 2018 |
| Neutral Citation | [2018] JMSC FULL 1 |
| Docket Number | CLAIM NO. 2017HCV01084 |
| Court | Supreme Court (Jamaica) |
| Date | 22 March 2018 |
[2018] JMSC FULL 1
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CONSTITUTIONAL DIVISION
THE HONOURABLE Mr Justice Bryan Sykes
THE HONOURABLE Mr Justice David Fraser
THE HONOURABLE Mr Justice Kirk Anderson
CLAIM NO. 2017HCV01084
Hugh Wildman and Barbara Hines for the claimant
Kamau Ruddock and Kimberly Clarke instructed by the Director of State Proceedings for the defendant
Constitutional law — Allegations of violation of right to trial within a reasonable time — Whether violation of reasonable time standard results in grant of stay automatically — How analysis is to be done — Factors to be considered when determining whether reasonable time standard violated — Consequences of violation — Charter of Fundamental Rights and Freedoms, Sections 14 (3) and 16 (1) — Canadian Charter of Rights and Freedoms, Section 11 (b)
This is a pre-trial constitutional claim in which Mr Mervin Cameron is alleging that his right to trial within a reasonable time as guaranteed by section 14 (3) of the Jamaican Charter of Fundamental Rights and Freedoms has been violated. Mr Mervin Cameron, a labourer with three previous convictions, – illegal possession of firearm/shooting with intent and receiving stolen goods – was offered bail in September 2017 by Daye J after being in custody since his arrest and ultimately being charged by the police in March 2013. He was charged with two murders. A preliminary inquiry commenced (on date unknown) and has stalled since October 2016. The delay in bringing the matter to trial has led him to ask this court to grant declarations to the effect that his constitutional right to trial within a reasonable time has been violated. He is also asking that an order be issued staying the preliminary inquiry and a consequential order that he be released immediately if the preliminary inquiry is stayed.
Mr Cameron alleges that he was informed by the police that they held persons who had stolen a motor vehicle. That vehicle was alleged to be owned by one of the deceased. The person held allegedly told the police that Mr Cameron sold them a motor vehicle. He denied the allegations put to him and stated that he did not have a motor vehicle in his possession and he had not sold any stolen motor vehicle to anyone.
He states further that he was not placed on an identification parade so that the reliability/accuracy of the identification of him by persons who claimed that he sold them the stolen vehicle could be tested. He was questioned by the police and then charged with the offences of murder and illegal possession of firearm and then placed before the Parish Court Division of the Gun Court for a preliminary inquiry to take place. If what Mr Cameron says is true, and what he has said is the only evidence, then it appears that the Crown is relying on the doctrine of recent possession to ground the charges of murder. On Mr Cameron's narrative there is no suggestion that there is any witness who saw Mr Cameron commit the acts which caused the death of the two persons. There is no suggestion that there is any forensic evidence linking Mr Cameron to the car. As will be shown, the response from the Crown did not shed any light on the nature and extent of the evidence against Mr Cameron.
He says that his counsel made a bail application on his behalf and in the course of that application high-lighted several flaws in the prosecution case including the absence of an identification parade. The date of the bail application is not stated. Mr Cameron swore that the descriptions given by the persons who say that he sold them the vehicle did not match his features. If this further allegation by Mr Cameron is correct then it suggests that the case against him is weak. Again, the response of the Crown failed to address the nature and quality of the evidence against Mr Cameron.
According to Mr Cameron, the Parish Court Judge refused bail and gave no reasons. He further states that on February 20, 2014, the matter came back before the Parish Court and on that day the judge indicated that she would not be entertaining any application for bail that day. His counsel responded by saying that he would be asking for the reasons for refusing bail and the judge promised to give her reasons in writing. It appears that this was a reference to the bail application to which Mr Cameron referred and not to any bail application made on February 20, 2014.
It may well be that this request for the reasons was the second one since the bail application because Mr Cameron asserts that on Monday, January 13, 2014 his counsel requested reasons for the refusal of bail but was told they were not yet ready. Mr Cameron expresses the view that none of the factors listed in the Bail Act that would militate against a grant of bail applied to him.
Mr Cameron does not say when the preliminary inquiry began but he says that it was scheduled to continue on May 12, 2014.
Regarding the evidence, he states at paragraph 18, 33 and 34 respectively:
- The case against me is weak and its credibility seriously undermined, as it is clear that the identification evidence is almost non-existent, given the absence of the identification parade which would clearly show that I am not the person who the witnesses have described to the police. 33. The case against me is weak. One of the main witness (sic) for the prosecution … a police officer stationed in St James, stated in his statement and admitted under cross examination in court, that when he spoke with [name excluded] the person who was in possession of the alleged motor car in question, [the same person] admitted to him that the car was brought to him by a tall brown man. That description does not fit me. I am neither tall nor brown. I am short and dark. [statement of police officer exhibited] 34. It is clear that the prosecution's (sic) case is extremely weak and I am held in custody for an offence of which I am innocent.
Mr Cameron contends that the Parish Judge erred in refusing to grant bail having regard to the state of the evidence. He advances the proposition that the absence of reasons for refusing bail suggests that the judge had no reason for refusing bail.
The matter, he says, has been before the court on numerous occasions for continuation but the continuation has not occurred because the prosecution witnesses have not been in attendance. One of the witnesses actually made it to the witness box and since his last day in court (no evidence of that date) he has not returned to continue his evidence. Again, there is no evidence of the numerous dates as described by Mr Cameron.
Mr Cameron states that his counsel made several attempts to have the matter disposed of. These efforts included (a) urging the Parish Judge to have the matter dealt with through the Office of the Director of Public Prosecutions (‘DPP’) and (b) writing to the Director asking that a voluntary bill of indictment be preferred and the matter transferred to the Home Circuit Court. The letter to the DPP was written in May 2016. The DPP responded by letter June 2016 in which she acknowledged receipt of the May 2016 letter. In October 2016 the DPP declined to intervene.
Since October 2016 the matter has been before the Parish Court on several occasions but no prosecution witness has appeared.
In February 2017, Mr Cameron's counsel renewed his bail application but that was without success. All this led him to seek constitutional remedy. He filed his claim in March 2017.
In response to this affidavit the Attorney General filed an affidavit in reply. That affidavit added the delays were largely due to the failure of witnesses to attend court on several occasions. The deponent added that Mr Cameron's counsel was absent on several occasions. The deponent confirmed the communication between DPP. It was also said that the DPP indicated that there were several issues to be resolved before the matter could proceed to the Home Circuit Court. Remarkably, there is not a single line from the Crown suggesting that Mr Cameron's narrative of the summary of the evidence against him is incorrect.
It is to be noted that neither Mr Cameron nor the Attorney General indicated the date Mr Cameron was charged, when he was first placed before the court, the number of times the matter has been before the court and what occurred on each occasion. All we know is that he was charged sometime in March 2013. The court will have to make do with what it has. I now turn to the relevant constitutional provisions.
Mr Cameron is charged with one other person. This factor will also be taken into account in assessing whether Mr Cameron's reasonable time guarantee has been violated.
Section 14 (3) states:
Any person who is arrested or detained shall be entitled to be tried within a reasonable time and –
(a) shall be –
(i) brought forthwith or as soon as is reasonably practicable before an officer authorized by law, or a court;
and(ii) released either unconditionally or upon reasonable conditions to secure his attendance at the trial or at any other state of the proceedings; or
(b) if he is not released as mentioned in paragraph (a) (ii) shall be promptly brought before a court which may thereupon release him as provided in that paragraph.
During the course of argument neither counsel mentioned section 16 (1) of the Charter of Fundamental Rights and Freedoms; a provision which has to be taken into account in the resolution of this matter. Section 16 (1) reads:
Whenever any person is charged with a criminal offence he shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law...
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