Patrick Whitely v The Attorney General

JurisdictionJamaica
JudgeHibbert, J,McDonald, J,Laing, J.
Judgment Date28 July 2016
Neutral Citation[2016] JMFC Full 6
Docket NumberCLAIM NO. 2013 HCV 03746
CourtSupreme Court (Jamaica)
Date28 July 2016
Between
Patrick Whitely
Claimant
and
The Attorney General
Defendant

[2016] JMFC Full 6

Coram:

THE HONOURABLE Mr. Justice L. Hibbert

THE HONOURABLE Miss Justice C. McDonald

THE HONOURABLE Mr. Justice K. Laing

CLAIM NO. 2013 HCV 03746

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

Murder, Death, Sentences, Section 29 of the Juvenile's Act, Detention at Her Majesty's pleasure, Revue, Constitution — Sections 17, 13 and 15.

Legislation:

Offences Against the Person Act – Juveniles Act

Dr. Lloyd Barnett, Miss Gilliam BurgessandPhillip Crossinstructed byMiss Gilliam Burgessfor the Claimant.

Miss Carlene Larmond and Miss Carla Thomas instructed by Director of State Proceedings for the Defendant.

Hibbert, J
Background
1

On 9 January 1981 at about 7:30 p.m. Mr. Oswald Lindsay was driving his motor car from church along Windward Road towards his home at Bull Bay in the parish of Saint Andrew. Mr. Lester Case was a passenger in this motor car. After he turned off from the Bull Bay main road, Mr. Lindsay was stopped by a group of three men, each of whom was armed with a firearm. They entered the car and ordered Mr. Lindsay to return to the main road and on their instructions he drove to Subway Beach, also in Bull Bay. There Mr. Lindsay and Mr. Case were taken from the car. Shortly afterwards four men emerged from nearby bushes. They included Lester Williams, Patrick Whitely, the claimant herein, and Anthony Robinson, each of whom had a firearm.

2

Two of the men who had initially accosted Mr. Lindsay left the scene then returned with two pieces of rope which were used to tie Mr. Lindsay and Mr. Case. After this, Lester Williams gave a signal and a boat came to the beach. In it were Clyde Williams and another man. They spoke to the men who were already there then went back to the boat and left. Lester Williams untied Mr. Case saying that Case was his “boy”. Mr. Lindsay and Mr. Case were taken to a section of the beach behind Clyde McAnuff's yard. The boat then returned. Anthony Robinson and two other men then went into Clyde McAnuff's yard and returned with a shovel. Lester Williams told Mr. Case that if he talked he and his family would be killed.

3

Mr. Lindsay was then taken away by the claimant and two other men. Mr. Case was taken by Lester Williams to a tree along the beach road. While they were there Mr. Lindsay's car with two men came by then left. Shortly afterwards explosions were heard. Lester Williams and Mr. Case then walked to the main road where Lester Williams told Mr. Case that if anyone asked him about Mr. Lindsay he should say that Mr. Lindsay dropped him off and turned back to town.

4

Mr. Case subsequently made a report to the police. The police later found the body of Mr. Lindsay in a shallow grave on the beach. His hands were tied behind him and he had a gunshot injury to his head. After a post mortem examination the pathologist concluded that death was as a result of shock and haemorrhage due to gunshot injury to the head.

5

Consequent on their investigations the police charged the claimant, Lester Williams, Clyde McAnuff and Anthony Robinson for the murder of Mr. Lindsay. At the trial in the Home Circuit Court both Patrick Whitely and Lester Williams were, found guilty of murder and were on 28 February 1983, each sentenced to suffer death.

6

Both the claimant and Lester Williams appealed against their convictions and the claimant also appealed against his sentence. The appeals against convictions were dismissed. At the hearing of the appeal on 26 September 1986 the court accepted as credible, evidence which showed that at the time of the commission of the murder Whitely was under the age of 18 years. Applying the provisions of section 29(i) of the Juveniles Act, the court ruled that “the sentence of death imposed on the applicant Whitely should be set aside and, instead, he should be detained during Her Majesty's pleasure.”

7

Consequent on the decision of the Privy Council in D.P.P. v. Mollison [2003] 2 WLR 1160, in which the claimant intervened, the claimant in May 2007 petitioned the Governor General who referred the matter to the Court of Appeal. The court ruled:

“Request granted. The petition is allowed. The sentence imposed is quashed and substituted therefor is a sentence of detention at the court's pleasure.”

8

On 26 January 2010 the claimant applied for a review of his detention. The application was heard on 24 January 2012 by Pusey, J who ordered that:

  • “1. The applicant Mr. Patrick Whitely, who is detained at the court's pleasure, be released on parole and on successful termination of the parole, be released from detention at the court's pleasure, unconditionally thereafter.

  • 2. Mr. Patrick Whitely shall be on parole for a period of four years from 31 st January 2012 to 31 st January 2016 on the following special conditions:

    • (a) He shall report without delay (that is within seven days of release) to the parole officer in the parish of St. Elizabeth and shall keep in touch with that officer in accordance with the officer's instructions;

    • (b) He shall reside in the parish of St. Elizabeth during the period of parole and shall not change his parish of residence without obtaining the prior permission of the Parole Board;

    • (c) He shall receive visits at his place of residence from the parole officer, if the parole officer so requires;

    • (d) He shall be of good behavior and lead an honest and industrious life;

    • (e) He shall advise the parole officer, if he is arrested or questioned by the police.

  • 3. The Parole Board is empowered to see to the proper enforcement of this order pursuant to the Parole Act and the Rules made thereunder, and they may revoke any special conditions prescribed at the paragraphs above.

  • 4. Any breach of this order or any decisions made by the Board to revoke the parole must be notified to the court in writing without delay.”

9

The claimant was however, not released from custody until 13 March 2012 as legal advice was being sought as to how the claimant's release was to be effected.

The Claim
10

On 24 June 2013 the claimant filed a Fixed Date Claim in which he claimed the following:

  • “1. The Claimant, Patrick Whitely of Pepper District, Pepper P.O., St. Elizabeth claims damages against the Defendant for false imprisonment and for breaches of his fundamental human and constitutional rights in respect of his incarceration and/or detention in the prisons or correctional centres of the Government of Jamaica by virtue of unconstitutional orders made by the Courts of Jamaica and/or unconstitutional actions taken by the Correctional Services of the Government of Jamaica (hereinafter referred to as “The Government Authorities”).

  • 2. The Claimant claims breaches of the following:

    • (i) his rights under the Constitution of Jamaica prior to its amendment by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011;

      • (a) to liberty, security of the person and the protection of the law as set out in section 13(a) and 15;

      • (b) not to be subjected to torture or to inhuman or degrading punishment or other treatment as set out in section 17;

    • (ii) his rights under section 5 of the Fundamental Rights (Additional Provisions) (Interim) Act to fair and humane treatment by any public authority in the exercise of any of its functions;

    • (iii) his rights under the Constitution of Jamaica as amended by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011;

      • (a) to liberty and security of the person as set out in section 13(3)(a);

      • (b) to freedom of the person as set out in sections 13(3)(p) and 14;

      • (c) to due process as set out in sections 16(11) and 16(12);

  • 3. The Claimant further claims aggravated and exemplary damages.

  • 4. The Defendant is sued as the legal a representative of the State and/or under and by virtue of the Crown Proceedings Act 1959 for reason that the acts complained of were done by the judicial and public authorities purporting to act in the course of their duties.

  • 5. Part 56 of the civil Procedure Rules applies to this claim.”

11

The claim also contained the particulars of alleged breaches which were:

  • (i) The Claimant was sentenced to death in violation of section 29(1) of the Juveniles Act 1951 and his constitutional rights;

  • (ii) The Claimant was detained under the unconstitutional sentence of detention at Her Majesty's pleasure from September 1986 until July 23, 2007 with no legal provision for applying to the Court for a review of his detention;

  • (iii) The Government Authorities delayed the substitution of the unlawful detention of the Claimant at Her Majesty's pleasure as the adjournment of the claimant's application for a writ of habeas corpus ad subjiciendum of July 17, 2001 had no basis in law;

  • (iv) The Government Authorities failed to substitute the claimant's unconstitutional sentence of detention at the Governor General's pleasure until June 5, 2007 despite the decision in The Director of Public Prosecutions v. Kurt Mollison on June 22, 2003;

  • (v) The Government Authorities failed to make provision for aggrieved persons to have access to the court for a review of the unconstitutional detention until September 18, 2006 despite the decision in The Director of Public Prosecutions v. Kurt Mollison on June 22, 2003;

  • (vi) The Government Authorities failed to comply with the Order of May 4, 2011 of the Supreme Court to provide reports from a Superintendent of the Department of Correctional Services and in breach of the said Order did not provide the said reports until July 4, 2011;

  • (vii) The Government Authorities failed to comply with the Order of May 4, 2011 of the Supreme Court to provide reports from the Department of Correctional Services in that the reports provided on July 4, 2011 were not in compliance with Part 75 of the Civil Procedure Rues;

  • ...

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4 cases
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    ...cents (USD$77,941.99). 35 In this regard, the Defendant Companies rely on the authority of Patrick Whitely v The Attorney General [2016] JMFC Full 6. 36 [2005] UKPC 15 37 [2002] 2 WLR 705 38 [2021] JMSC Civ 183 39 [2017] JMSC Civ 130 40 See – Affidavit of Victoria Grant, which was filed o......
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    ...and to be mindful of issues of remoteness in respect of causation. 16 Counsel cited the case of Patrick Whitely v The Attorney General [2016] JMFC Full 6, where constitutional damages was sought to compensate for the sentencing to death of the claimant, in breach of section 29(1) of the Juv......
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    ...and Panchoo v Same [2013] 1 AC 659 (‘ Seepersad’) which was quoted by Hibbert J in the case of Patrick Whitely v The Attorney General [2016] JMFC Full 6, where it was stated that there is no constitutional right to damages for breach of an applicant's constitutional rights. Although that st......
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