Raymond Johnson v The Commissioner of Police

• Jurisdiction: Jamaica
• Judge: J. Pusey J.
• Judgment Date: 28 March 2019
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2018 HCV 03415
• Date: 28 March 2019

[2019] JMSC Civ 55

In the Supreme Court of Judicature of Jamaica

CLAIM NO. 2018 HCV 03415

Between

Raymond Johnson

1 ^st Claimant

Alecia Hutchinson

2 ^nd Claimant

and

The Commissioner of Police

1 ^st Defendant

The Attorney General

2 ^nd Defendant

IN CHAMBERS

Mr. Leonard Green and Miss Sheri Jones Instructed by Chen Green and Company for the claimants/applicants

Miss Kamau Ruddock instructed by Director of State Proceedings for the 1 ^st and 2 ^nd defendants/respondents.

Civil practice and procedure - Pleadings — Whether the affidavit in response to the claimant's affidavit was a Statement of Case — Whether affidavit should be struck out.

Coram: J. Pusey J.

INTRODUCTION

1 By Fixed Date Claim Form filed on September 11, 2018, the claimants, who are members of the Jamaica Constabulary Force, seeks a number of orders, which for present purposes it is unnecessary to set out in full but is concerned with the prevention of the Commissioner of Police from conducting disciplinary proceedings against them. The disciplinary hearing was scheduled for September 12, 2018.

2 In response to the Affidavit of Urgency in support of the Fixed Date Claim Form the defendants filed an Affidavit sworn to by Senior Superintendent of Police in charge of Administration, Mr. Andrew Lewis on January 29, 2019. The claimants are contending that the statement of case disclosed in this affidavit should be struck out pursuant to Civil Procedure Rule 2002 ( CPR) 26.3(1)(b) and (c). Consequently on January 30, 2019 they filed this Notice of Application for Court Orders seeking the following orders:

• 1. That the Statement of Case contained and referred to in the affidavit of Andrew Lewis dated January 29, 2019 is an abuse of the process of the court and will most definitely obstruct the just disposal of the proceedings in the claim;

• 2. The defendants have produced no evidence or any proof whatsoever that the Order of the Parish Court was wrongly made;

• 3. Cost of this application to be cost in the cause;

• 4. Such further and other relief as may be just.

3 The grounds on which the application is made, in addition to CPR 26.3(b) and (c) is stated in the Notice thus:

The affidavit of Andrew Lewis submitted and filed on behalf of the defendants expresses a view at paragraph 10 that the defendants are of the opinion that Raymond Johnson and Alecia Hutchinson were acquitted by the parish Court of the charges on account of “incorrect procedures”. That statement establishes as a fact that any hearing conducted by the defendants would be a farce and could not be a fair process.

BACKGROUND

4 The claimants are police officers stationed in Western Jamaica. They were charged under section 14 of the Corruption Prevention Act with corruptly soliciting and accepting a sum of money for releasing a prisoner from the custody of the police in 2013. It was alleged that they went to the Freeport Police Station and pretended to be other officers from Westmoreland, detailed for prisoner escort to take a prisoner to Westmoreland for court. The prisoner was placed in their custody and they released him to his girlfriend on route to Westmoreland. They were also charged with attempting to pervert the course of justice.

Section 14 of the Corruption Prevention Act says inter alia:

• (1) A public servant commits an act of corruption if he -

  • (a) Corruptly solicits or accepts, whether directly or indirectly, any article or money or other benefit, being a gift, favour, promise or advantage for himself or another person for doing any act or omitting to do any act in the performance of his public functions;

  • (b) In the performance of his public functions does any act or omits to do any act for the purpose of obtaining any illicit benefit for himself or any other person.

5 Both claimants were tried in the Parish Court for the parish of St. James, holden in Montego Bay, in a trial that lasted two and a half years, ending on July 1, 2015. They both gave sworn evidence and were cross-examined. They were acquitted of all charges.

6 The Commissioner of Police had suspended both claimants after their arrest on

% pay. After the trial they were placed on Interdiction with % pay awaiting administrative decisions regarding their future. This finally came on February 2, 2018 when Approved Disciplinary Charges were personally served on both claimants. The charges are:

In relation to Woman Constable Alecia Hutchinson,

Charge I

• I That you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the force, in that you were unbecoming in your conduct when you falsely identified yourself as Woman Constable K. Brown attached to the Savanna-La-Mar Police Station and you along with No. 10530 Constable Raymond Johnson, who falsely identified himself as Detective Constable A. Bent also of the Savanna-la-Mar Police Station when on Wednesday, January 30, 2013 at about 7:30 you went to Montego Bay Police Station cell block and presented yourselves as prisoner escorts and requested male prisoner Greg Anthony Taylor, who was handed over to you to be escorted to Savanna-la-Mar for court on January 31, 2013 and you released him without lawful authority sometime after leaving St. James.

Charge 2

• II That you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the Force, in that you willfully, deliberately facilitated the escape of male prisoner Greg Anthony Taylor from custody at the Montego Bay Police Station Cell Block in the parish of St. James on Wednesday, January 30, 2013 at about 7:50p.m. when you falsely identified yourself as Woman Constable K. Brown attached to the Savanna-la-Mar Police Station and you along with No. 10530 Constable Raymond Johnson, who falsely identified himself as Detective Constable A. Bent also of the Savanna-la-Mar Police Station when on Wednesday January 30, 2013 at about 7:30p.m. you went to Montego Bay Police Station cell block and presented yourselves as prisoner escorts and requested male prisoner Greg Anthony Taylor, who was handed over to you to be escorted to Savanna-la-Mar for court on January 31, 2013 and you released him without lawful authority sometime after leaving St. James.

In relation to Constable Raymond Johnson,

Charge I

• I That you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the force, in that you were unbecoming in your conduct when you falsely identified yourself as Detective Constable A. Bent attached to the Savanna-La-Mar Police Station and you along with No. 14447 Woman Constable Alecia Hutchinson, who falsely identified herself as Woman Constable K. Brown also of the Savanna-la-Mar Police Station when on Wednesday, January 30, 2013 at about 7:30 you went to Montego Bay Police Station cell block and presented yourselves as prisoner escorts and requested male prisoner Greg Anthony Taylor, who was handed over to you to be escorted to Savanna-la-Mar for court on January 31, 2013 and you released him without lawful authority sometime after leaving St. James.

Charge 2

• II That you being a member of the Jamaica Constabulary Force conducted yourself contrary to the discipline, good order and guidance of the Force, in that you willfully, deliberately facilitated the escape of male prisoner Greg Anthony Taylor from custody at the Montego Bay Police Station Cell Block in the parish of St. James on Wednesday, January 30, 2013 at about 7:50 p.m. when you falsely identified yourself as Detective Constable A. Bent attached to the Savanna-la-Mar Police Station and you along with No. 14447 Woman Constable Alecia Hutchinson, who falsely identified herself as Woman Constable K. Brown also of the Savanna-la- Mar Police Station when on Wednesday January 30, 2013 at about 7:30p.m. you went to Montego Bay Police Station cell block and presented yourselves as prisoner escorts and requested male prisoner Greg Anthony Taylor, who was handed over to you to be escorted to Savanna-la-Mar for court on January 31, 2013 and you released him without lawful authority sometime after leaving St. James.

7 The claimants were required to respond in writing, stating grounds by which they could exculpate themselves. Counsel for the claimants responded on their behalf. The hearing was scheduled for September 12, 2018 after the responses were delivered. The claimants filed the Fixed Date Claim Form herein to thwart the hearing. The defendant responded by the affidavit of Andrew Lewis. This affidavit resulted in the filing of this Notice of Application for Court Order filed January 30, 2019 on the aforementioned grounds.

ISSUE

8 The issue to be decided is -

Whether the affidavit in response to the claimants' affidavit is a statement of case and if so, should it be struck out pursuant to CPR 26.3 (b) and (c).

THE CLAIMANTS' SUBMISSION

9 The claimants filed written submissions in which they argued that Regulation 37 of the Police Service Regulations 1961, makes provision for what is to obtain when an officer is acquitted of a criminal charge. It states,

A member acquitted of a criminal charge shall not be dismissed or otherwise punished in respect of any charge of which he has been acquitted, but nothing in this regulation shall prevent his being dismissed or otherwise punished in respect of any charge arising out of his conduct in the matter , unless such other charge is substantially the same as that in respect of which he has been acquitted. Emphasis mine

10 They contend that ‘the same or substantially the same’ in the Regulation must be given their literal interpretation, that is, ‘same’ means identical and not different and ‘substantial’ means to a great or significant extent. If the charges are the same then they ought to be struck out as an...