The Attorney General of Jamaica v Claudette Clarke
| Jurisdiction | Jamaica |
| Judge | McDonald-Bishop JA,Phillips JA,P Williams JA |
| Judgment Date | 28 October 2018 |
| Neutral Citation | JM 2018 CA 82 |
| Docket Number | APPLICATION NO 144/2015 |
| Year | 2018 |
| Court | Court of Appeal (Jamaica) |
[2018] JMCA App 17
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice P Williams (AG)
APPLICATION NO 144/2015
(as Administratrix of the Estate of Keith Clarke, deceased, intestate, and in her own right)
and
Mrs Nicole Foster-Pusey QC, Miss Carla Thomas and Miss Deidre' Pinnock instructed by the Director of State Proceedings for the applicant
Leonard Green and Miss Sylvan Edwards instructed by Chen, Green & Co for the respondents
I have read in draft the reasons for judgment of my learned sister, McDonald-Bishop JA, which I found entirely reflect my own reasons for concurring in the decision of the court. I endorse them and there is nothing that I could usefully add.
These proceedings concern an application for permission to appeal brought by the Attorney General of Jamaica (“the applicant”) from the order of K Anderson J, made in the Supreme Court on 17 July 2015. By that order, the learned judge refused the applicant's application for an order for a stay of civil proceedings brought by the respondents, pending the determination of criminal proceedings in the Home Circuit Court. The criminal proceedings in the Home Circuit Court have emanated from a charge of murder, instituted against three members of the Jamaica Defence Force (“the JDF”) for the death of Mr Keith Clarke (“Mr Clarke”), which occurred on or around 27 May 2010. The learned judge also denied the applicant's application for permission to appeal the order refusing the stay.
During the course of the hearing of the application before us, counsel appearing for the parties gave their consent for the hearing of the application for permission to appeal to be treated as the hearing of the appeal.
On 20 November 2015, following a consideration of the matter, including the helpful submissions of counsel, we made these orders:
“1. The applicant is granted permission to appeal the order of K Anderson J, made on 17 July 2015.
2. The application for permission to appeal is treated as the hearing of the appeal and the appeal is allowed.
3. The order of K Anderson J made on 17 July 2015 is set aside.
4. The trial of claim No. 2013 HCV 0315 Claudette Clarke and Brittani Clarke v The Attorney General is stayed until the determination of the trial of the case R v Odel Buckley, Greg Tingling and Arnold Henry for Murder or until further orders.
5. The case management conference orders made in the civil proceedings by Stamp J (Ag) on 15 January 2015 and in respect of which time was extended for compliance by G Fraser J on 12 October 2015 are stayed until further orders.
6. In the event the criminal trial, having been scheduled for commencement, shall fail to commence after two (2) consecutive adjournments, at the instance of the defence or upon their application (for reasons not attributable to the prosecution and or the respondents herein or their attorneys-at-law) this order for stay of the civil proceedings shall be lifted UNLESS a judge of the Supreme Court (other than K Anderson J) shall otherwise direct after hearing the parties on the issue and having regard to all the circumstances, including the reason(s) for the adjournment.
7. In the event the criminal trial, having been scheduled for commencement, shall fail to commence after two consecutive adjournments due to the fault of the prosecution or on their application (not being attributable to the conduct of the respondents herein or their attorneys-at-law), the stay shall be lifted UNLESS a judge of the Supreme Court (other than K Anderson J) shall otherwise direct after hearing the parties and having regard to all the circumstances, including the reason(s) for the adjournment.
8. In any event, if the criminal trial should fail to commence within twelve ( 12) months of the date hereof (provided it is due to no fault of the respondents or their attorneys-at-law), the stay shall be lifted and the civil proceedings shall proceed without the need for further orders.
9. Upon the commencement of the criminal trial or the lifting of the stay, the Registrar of the Supreme Court shall fix a date for a further case management conference in the civil proceedings.
10. The parties are at liberty to apply to a judge of the Supreme Court other than K Anderson J in order to give effect to this order.
11. A copy of this order is to be served on the Director of Public Prosecutions.
12. No order as to costs.”
We promised then to furnish the detailed reasons for our decision in writing at a later date. This is in fulfillment of that promise. The delay in furnishing the written reasons is regretted and, on behalf of the court, I extend profound apologies.
Mr Clarke was the husband and father of the first and second respondents, respectively. On or around 27 May 2010, Mr Clarke lived together with the respondents at premises situated at Red Hills in the parish of Saint Andrew.
The events leading up to the death of Mr Clarke had their origins in the joint effort of the police/military team consisting of the Jamaica Constabulary Force and the JDF (“the security forces”), made during May 2010 to apprehend Christopher “Dudus” Coke, who was the subject of an extradition request by the United States of America. The events that resulted from this joint police/military operation are now widely known as the “Tivoli incursion”.
The undisputed facts surrounding the death of Mr Clarke are as follows. During May 2010, the security forces were involved in operations in their effort to apprehend Christopher Coke who was by then a fugitive. These operations started in Tivoli Gardens and the general environs of West Kingston and later spread to other parts of the island. On 27 May 2010, the security forces went to the Clarkes' residence. The members of the security forces reported that they attended on the Clarkes' residence because of an intelligence report they received that Christopher Coke was at these premises along with heavily armed men. During this operation, Mr Clarke was fatally shot by members of the security forces.
There is much dispute between the respondents and the members of the security forces as to the circumstances that led to the shooting of Mr Clarke. The accounts are diametrically opposed. The members of the security forces contend that Mr Clarke was shot and killed when he pointed a firearm in the direction of members of the security team who had entered the house and were conducting a “clearing exercise” after they were shot at by persons inside the house during the course of the operation. Their justification for the shooting is that they were acting in lawful self-defence.
The respondents' version, on the other hand, is that Mr Clarke was shot multiple times to the rear of his body, as he descended from a cupboard, with his back towards the soldiers who broke into their home in search of wanted men. It is their contention that he was shot by three of the soldiers, Lance Corporal Greg Tingling, Lance Corporal Odel Buckley and Private Arnold Henry (“the accused soldiers”), who did so “unlawfully, maliciously and without reasonable or probable cause”. The respondents say that at no time did they or Mr Clarke attack the members of the security forces and at no time were they and Mr Clarke hosting Christopher Coke and heavily armed men on the morning of 27 May 2010. The members of the security forces, they averred, had no justifiable reason for entering their premises and for shooting Mr Clarke.
At the time of considering this matter, there were three separate and distinct concurrent or parallel proceedings treating with the activities of the members of the security forces in apprehending Christopher Coke in May 2010. All these proceedings, directly or indirectly, were concerned with the circumstances leading up to the death and or injury of persons during the Tivoli Incursion, including Mr Clarke.
In July 2012, the Director of Public Prosecutions (“the DPP”) ruled that the three accused soldiers should be charged with the murder of Mr Clarke. The proceedings against them were instituted by the preferment of a voluntary bill of indictment in the Home Circuit Court. At the time of the proceedings in this court, the criminal proceedings were still pending against the accused soldiers. The case had been adjourned to be mentioned on 18 February 2016.
On 24 May 2013, following the initiation of the criminal proceedings against the accused soldiers by the DPP, the respondents instituted civil proceedings in the Supreme Court against the applicant, seeking to recover damages under the Fatal Accidents Act and the Law Reform (Miscellaneous Provisions) Act. They are also seeking to recover damages for “negligence, and/or in the alternative, trespass to the person, and/or in the alternative, misfeasance in public office, and/or in the alternative breach of the deceased's right to life, right to the protection of private property and the right not to be treated in a degrading and inhumane manner in contravention of the Jamaican Constitution”.
The applicant is sued by virtue of the Crown Proceedings Act, and has admitted that the accused soldiers were acting as servants or agents of the Crown at the material time. The applicant intends to rely on the evidence of the accused soldiers in order to properly and successfully defend the claim.
The occurrences during the course of the Tivoli incursion also became the subject of a hearing by a Commission of Enquiry, named the West Kingston Commission of Enquiry...
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