Warren Williams and Another v Director of Public Prosecutions

• Jurisdiction: Jamaica
• Judge: Laing, J
• Judgment Date: 09 June 2016
• Neutral Citation: [2016] JMSC Civ 96
• Docket Number: CLAIM NO. 2015 HCV 05839
• Court: Supreme Court (Jamaica)
• Date: 09 June 2016

[2016] JMSC Civ. 96

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Laing, J

CLAIM NO. 2015 HCV 05839

Between

Warren Williams

1 ^st Applicant

The Commissioner of The Independent Commission of Investigations

2 ^nd Applicant

and

The Director of Public Prosecutions

Respondent

Mr. Richard Small , Mrs. Shawn Wilkinson , Ms. Courtney Foster and Ms. Lisa Dunbar for the Applicants

Mr. Jeremy Taylor Senior Deputy Director of Public Prosecutions and Ms. Latoya Bernard for the Respondent

Judicial review — Private prosecution — Director of Public Prosecutions decision to terminate prosecution by offering no evidence and not by nolle prosequi — Whether method of discontinuance in breach of constitution — Whether decision to terminate amenable to judicial review

IN CHAMBERS

The Background

1 The 1 ^st Applicant Warren Williams is the Chief Investigator at the Independent Commission of Investigations (INDECOM). The 2 ^nd Applicant is Mr Terrence Williams who is currently the Commissioner of INDECOM.

2 On or about the 12 ^th October 2015 the 1 ^st Applicant caused Jason Anderson (‘the Accused’) to be charged with the offences of assault at common law and discharging a firearm in a public place contrary to section 23 of the Firearms Act (‘the Case’).

3 Mr. Richard Small was retained by INDECOM to conduct the prosecution of the Case together with Ms. Lisa Dunbar an Attorney-at- law employed to INDECOM. On 4 ^th November 2015, the 1 ^st Applicant, Mr. Richard Small and Ms. Lisa Dunbar met with the learned Director of Public Prosecutions (‘the DPP’) pursuant to her request by letter dated 30 ^th October 2015. At that meeting the DPP indicated that she would intervene in the Case to ‘ exercise her authority pursuant to the Constitution of Jamaica ’.

4 Mr. Small by email dated 5 ^th November 2015 indicated to the DPP that he would call all the eye-witnesses on the Crown's case and the DPP acknowledged receipt of the e-mail that same day.

5 The DPP prepared a letter dated 6 ^th November 2015 (‘the Letter’) indicating that she had reviewed the Case and that it was her considered view that the evidentiary material was insufficient to support a viable prosecution with any prospect of a conviction. Also on the 6 ^th November 2015 the DPP took over the prosecution of the Case and terminated the prosecution of it by offering no evidence before the learned Resident Magistrate for the Parish of St. Catherine. The DPP had sent an e-mail dated the 6 ^th November 2015 and time stamped 7:51 a.m. to the 2 ^nd Applicant, Mr. Small and Ms. Dunbar announcing her decision to terminate the Case (the 6 ^th November e-mail’). The DPP also provided Mr. Small, Counsel for the Applicants, with a copy of the Letter later that day in Court, shortly before no evidence was offered.

The Application for leave

6 The Applicants' position is that it could be interpreted from the 6 ^th November email that the termination would have been by nolle prosequi and as a consequence that e-mail did not notify the persons to whom it was addressed of what the DPP in fact did.

7 The Applicants asserted that because the Letter which contained the reasons for the decision to terminate the Case was only provided to Mr. Small in Court shortly before no evidence was offered, this meant that the circumstances provided no real opportunity to object to the termination. This was because Counsel needed time to consider the contents of the Letter, to take instructions and to advise accordingly. It was therefore an ‘ intolerable position in which to place Counsel. ’

8 By Notice of Application filed on the 4 ^th December 2015 as amended on 11 ^th February 2016, the Applicants claimed a number of reliefs which do not easily lend themselves to a summary and I find it most convenient to set them out hereunder:

‘6. The reliefs sought are:

• I. A Declaration that the Respondent's policy to discontinue prosecutions instituted by other persons or authorities if the respondent is not satisfied that there is a realistic prospect of conviction, is either unlawful or unfair or irrational having regard, in particular, to the policy's restriction of the right of other persons or authorities to institute and conduct prosecutions.

• II. A Declaration that the Respondent's policy to terminate prosecutions brought by other persons or authorities, without provisions for those persons or authorities, or other interested parties to seek that the Respondent reverse or modifies the decision by internal review is unfair.

• III. A Declaration that the Respondent acted irrationally and improperly in terminating the prosecutions.

• IV. A Declaration that in terminating a prosecution brought by another person or authority (‘the informant’) the Respondent must give the informant and interested parties notice of the intended decision and the reasons for the decision, in sufficient time and detail, for the informant and any interested party to assess and, if they think appropriate, make submissions to the Respondent to stay, reverse or modify the decision.

• V. A Declaration that in terminating a prosecution brought by another person or authority (‘the informant’) the Respondent must act in a manner that does not derogate or diminish the informant or any interested party's recourse to apply for judicial review.

• VI. A Declaration that in terminating a prosecution brought by another person or authority the Respondent must comply with the published policies of the Office of the Director of Public Prosecutions regarding the termination of prosecutions, namely ‘The Decision to Prosecute: the Jamaican Protocol’ (hereinafter ‘the policy’), and in particular:

  • a. terminate such prosecutions by entering a nolle prosequi.

  • b. act in a manner that does not derogate or diminish the informant, or any interest party's recourse of having her decision stayed or quashed by Judicial Review.

  • c. giving a sufficiently reasoned decision that explains how the policy was applied.

  • d. giving the investigator an opportunity to attempt to obtain further evidence.

• VII. A Declaration that in terminating, in considering the issue of delay, the Respondent should take into account whether there is any injustice caused by the delay: and whether there are other appropriate remedies.

• VIII. A Declaration that in the instance case, the Respondent erred in the application of the law in relation to the use of force in self defence.

• IX. A Declaration that in the instant case, the Respondent erred in the purported application of the policy in failing to give due weight to the entirety of the evidence, namely:-

  • a. failing to give due consideration to the evidence that could inform the conclusion that the accused did not honestly believe that he had been under attack or had reason to suspect that the complainants had committed an offence;

  • b. failing to give due consideration to the substantial evidence that the accused discharged his firearm in circumstances where he was not in imminent danger;

  • c. failing to give due consideration to the evidence that the accused's use of force was excessive.

  when, on proper application of the policy, the Respondent must consider the evidence in its totality. The Respondent should recognize the limitations of this assessment in being a consideration purely of statements, and appreciate that the court can accept one witness' evidence over the other and even part of one witness' evidence.

• X. Any other order, relief and/or direction that this Honourable Court may determine to be appropriate and/or just. ’

9 The grounds on which the Applicants are seeking the orders are numerous but clearly expressed and it is likewise most convenient to simply reproduce them as follows:

• ‘ 1) In terminating the matter in the manner that the Respondent did:

  • a. the Respondent acted contrary to her own policy.

  • b. caused the informant and interested parties' recourse to apply for judicial review and if successful, the decision be stayed was derogated or diminished.

  • c. caused the informant and interested parties' recourse to have the decision judicially reviewed and if successful, the decision quashed was derogated or diminished.

  • d. caused the informant and interested parties' recourse to have the decision judicially reviewed and if successful, the matter remitted for trial was derogated or diminished.

• 2) The Respondent erred in approach to the law by failing to give due consideration to the objective element in determining the degree of justifiable force in self-defence.

• 3) The respondent erred in her assessment of the instant case in that she failed to give due weight to the entirety of the evidence namely:

  • a. failed to give due consideration to the evidence that could inform the conclusion that the accused did not honestly believe that he had been under attack or had reason to suspect that the complainants had committed an offence.

  • b. failed to give due consideration to the substantial evidence that the accused discharged his firearm in circumstances where he was not in imminent danger.

  • c. failed to give due consideration to the evidence that the accused's use of force was excessive.

• 4) The Respondent in finding that too much time had passed before charges were laid erred in approach to law and acted contrary to her policy by failing to:

  • a. consider whether there was any evidence that the delay would cause any serious injustice to the accused;

  • b. recognize that seeking an early trial was an appropriate remedy.

• 5) In concluding that there was no explanation for the delay in charging the accused, the Respondent reached a conclusion that no reasonable prosecutor would have.

• 6) The Respondent erred in approach in failing to invite the...