R v Henry (Delroy)
| Jurisdiction | Jamaica |
| Judge | SYKES J. |
| Judgment Date | 02 October 2009 |
| Judgment citation (vLex) | [2009] 10 JJC 0205 |
| Court | Supreme Court (Jamaica) |
| Date | 02 October 2009 |
ABUSE OF PROCESS APPLICATION - WHETHER DEFENDANT SHOULD BE TRIED FOR FIREARM OFFENCES AFTER BEING ACQUITTED ON A CHARGE OF MURDER - CASE OF MURDER NOT PASSING EVIDENTIAL CRITERION FOR PROSECUTION - FIREARM OFFENCES ARISING FROM SAME INCIDENT THAT LED TO CHARGE OF MURDER - NO EVIDENCE TO PROVE MURDER - CROWN OFFERING NO EVIDENCE
AFTER MURDER TRIAL COMMENCED - WHETHER ABUSE OF PROCESS TO COMMENCE TRIAL FOR MURDER WITHOUT EVIDENTIAL BASIS FOR THE CHARGE - WHETHER ABUSE TO CONTINUE PROSECUTION OF DEFENDANT FOR FIREARM OFFENCES AFTER ACQUITTAL ON MURDER CHARGE ARISING FROM SAME INCIDENT
CRIMINAL LAW - Illegal possession of firearm - Shooting with intent - Abuse of process - No evidence to prove murder - Stay of proceedings
This is an application by Mr. Delroy Henry for a permanent stay of proceedings in respect of an indictment preferred in the High Court Division of the Gun Court against him. In this indictment, he is charged with the firearm offences of illegal possession of firearm and shooting with intent "(the Gun Court indictment").
Can the High Court Division of the Gun Court entertain an abuse of process application?
The question of jurisdiction to hear this application and to grant the remedy sought is an important issue to be determined because the High Court Division of the Gun Court is not a part of the Supreme Court which has a Circuit Court and which can grant the remedy prayed for.
The Gun Court was established by the Gun Court Act ("the Act') to adjudicate on offences involving the use of a firearm (see section 3). The Gun Court sits in three divisions. The three divisions are the Resident Magistrate's Division, the Circuit Court Division and the High Court Division (see section 4).
The jurisdiction of each division of the court is set out in section 5 of the Act. The jurisdiction of the Resident Magistrate's and Circuit Court Divisions is not in issue and so no more needs be said about them. In respect of the High Court Division, it has jurisdiction to try all firearm offences except murder and treason. Significantly, section 3 (2) of the Act states that when any division of the court is presided over by a Judge of the Supreme Court, that is to say, a Judge appointed pursuant to the provisions of the Judicature (Supreme Court) Act, then the High Court division becomes a superior court of record. Section 10 states that Judges of the Supreme Court shall be assigned to the Gun Court and when they are so assigned they shall have all the powers, privileges, immunities as "appertain to the office of Supreme Court Judge" (see section 10 (1)). Section 12 (3A) states that unless otherwise stated in rules or regulations made under the Gun Court Act, the High Court Division of the Gun Court "shall observe as nearly as may be the like process, practice and procedure as a Circuit Court." The Circuit Court, as already noted, is now a part of the Supreme Court and exercises criminal jurisdiction.
In light of the development of the law on abuse of process referred to above, there is no doubt that the Circuit Court can entertain abuse of process applications in criminal proceedings and also grant a stay of proceedings, if that is the appropriate remedy. Based on what has been said in paragraph four above, it necessarily follows that the High Court Division of the Gun Court can do likewise.
The assertion by the superior courts that they can stay a prosecution on the ground of abuse of process was not clearly and unequivocally accepted by courts until relatively recent times. Although the House of Lords in Connelly v DPP [1964] A.C. 1254 spoke of staying a prosecution on the grounds of abuse of process, courts were, and still are reluctant to exercise this extraordinary power. Even now, the Supreme Court of Canada says that the power should not be exercised except in the clearest of cases (see R v Keyowski [1988] 1 S.C.R. 657; R v Conway 49 C.C.C. (3d) 289 ).
I respectfully adopt the summary of the development of the abuse of process doctrine of Lord Hoffman found at paragraphs 38 – 41 in R v Loosely [2001] 1 W.L.R. 2060. This summary represents, in my view, an accurate statement of how the law developed in England which I believe can assist me in this case.
The basis of the jurisdiction to stay proceedings
In R v Mack 44 C.C.C. 513, although speaking in the context of an entrapment case, Lamer J. of the Supreme Court of Canada explained the basis of the jurisdiction. The jurisdiction, his Lordship stated, "is not the power of a court to discipline police or prosecutorial conduct but, as stated by Estey J. in Amato (at p. 461), 'the avoidance of the improper invocation by the state of the judicial process and its powers'" (see paragraph 77).
Woodhouse J. in Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, 475–476, which was cited in R v Horse ferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, by Lord Bridge at page 67. Woodhouse J. is reported as saying:
It is not always easy to decide whether some injustice involves the further consequence that a prosecution associated with it should be regarded as an abuse of process and in this regard the courts have been careful to avoid confusing their own role with the executive responsibility for deciding upon a prosecution. In the Connelly case lord Devlin referred to those matters and then, as I have said, he went on to speak of the importance of the courts accepting what he described as their 'inescapable duty to secure fair treatment for those who come or are brought before them.' He said that 'the courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused' ( [1964] A.C. 1254, 1354...). Those remarks involve an important statement of constitutional principle. They assert the independent strength of the judiciary to protect the law by protecting its own purposes and function. It is essential to keep in mind that it is 'the process of law,' to use Lord Devlin's phrase, that is the issue. It is not something limited to the conventional practices or procedures of the court system. It is the function and purpose of the courts as a separate part of the constitutional machinery that must be protected from abuse rather than the particular processes that are used within the machine. It may be that the shorthand phrase 'abuse of process' by itself does not give sufficient emphasis to the principle that in this context the court must react not so much against an abuse of the procedure that has been built up to enable the determination of a criminal charge as against the much wider and more serious abuse of the criminal jurisdiction in general.
This power in the court to prevent abuse of its process is an important one and cannot be left to any other institution but the courts. Lord Devlin in Connelly v DPP [1964] A.C. 1254 reminded us of this. His Lordship said at page 1354:
Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused . (my emphasis)
The allegations
On November 3, 2004, at about 10:00 p.m., the prosecution alleges that Mr. Delroy Henry was the person who ran from a white Nissan Sunny station motor car after the police stopped the car. The prosecution say that Mr. Henry also pulled a firearm and fired it at the police as he ran across the road and disappeared in the Mona Commons community.
The police gave chase but gave up and returned to the car from which it was said that Mr. Henry ran. In it, they found the body of one Mr. Leon Marcel Gayle. His hands were tied behind him. The post mortem examination showed that he died from a gunshot injury.
Mr. Henry, the police say, having displayed his Bolt-like athletic prowess by outrunning the police on November 3, 2004, was not able to reproduce his athletic wonder later in November 2004, when he was apprehended by the police.
Mr. Henry was placed on an identification parade on December 7, 2004 where he was identified by Constable Abebe Pitt. The other police officer, Constable Raelito Lafayette, claimed to know Mr. Henry before the incident and so did not attend the identification parade.
The court proceedings in respect of the murder
On December 22, 2005, over a year after Mr. Henry was identified on an identification parade, a preliminary enquiry was held. He was committed to stand trial in the Supreme Court.
The matter first came before the Supreme Court on January 9, 2006. It appears that between January 2006 and June 30, 2006, the matter was delayed because it was unclear which attorney would represent the defendant at the trial. The chronology produced by the prosecution allege that on April 21, 2006, Mr. Roy Stewart was assigned but it was not until June 30, 2006, that Mr. Stewart actually attended court for a trial date to be set and for papers to be served on him. The case was set for trial on October 25, 2006.
On October 25, 2006, the prosecution was ready to proceed but the matter could not be tried because of insufficient jurors and counsel's absence. The matter was set for...
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