Whyte (Neville) v Attorney General

• Jurisdiction: Jamaica
• Judge: MORRISON, J (Ag.)
• Judgment Date: 12 February 2008
• Judgment citation (vLex): [2008] 2 JJC 1201
• Court: Supreme Court (Jamaica)
• Date: 12 February 2008

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007 HCV 042356

BETWEEN

NEVILLE WHYTE

APPLICANT

AND

THE ATTORNEY GENERAL

RESPONDENT

JUDICIAL REVIEW - Parole - Order of certiorari sought to quosh decision on eligibility - Parole Act s.5a - Civil Procedure Rules 2002 Part 56

1 Application for leave to apply for Judicial Review

MORRISON, J (Ag.)

2 By way of Notice of Application for Court orders dated 25 ^th October 2007 this applicant seeks an order of certiorari to quash a decision dated 17 ^th December 2003 and recorded in an order dated 12 ^th September 2007. The order complained of is that of the Honourable Mr. Justice Cooke J.A. who decided that Neville Whyte should not be eligible for parole until twenty years have elapsed. The commencement date of his revised sentence was 2 ^nd May 1990.

3 Further, the applicant sought a declaration to say that he is entitled to have his application for parole heard and determined by the Parole Board. The applicant has set out a number of bases in support of his application. In gradatim, that he was not informed of the hearing at which his case was to be considered; that he was not given an opportunity to be represented at this hearing or to make representations of any kind to the learned judge; that the delay in informing him of the decision was inexcusable; that because of the aforementioned transgressions his rights under section 20 (2) of the Constitution of Jamaica to a fair hearing within a reasonable time was contravened; if the said order is quashed he will be entitled to have his application for parole heard and determined.

4 Secondly, he asserts that, he has no alternative form of redress.

5 Thirdly, he complains that no consideration has been given to the matter by the Respondent in response to his complaint. He submits that the time for applying for judicial review has not been exceeded since this order could only take effect from the date on which it was drawn up, that is, 12 ^th September 2007.

6 Finally, he laments that he is directly affected since he has an application for parole pending before the Parole Board, which application would not be heard and determined unless the order made is quashed.

7 I shall not labour or lengthen upon his application for an extension of time within which to make application for leave to apply for judicial review as the Respondent, pro confesso, stated that it is not concerned about the late application for reasons I infer as being eminently unassailable: The signal administrative failure of the state to notify the applicant on time of date of his review. Instead, I shall deal substantively with the application for leave to apply for judicial review.

8 It is the applicant's contention that the decision of Cooke, JA was purportedly given pursuant to Section 5A of the Parole Act. That section, they observe, provides for a Judge of the Court of Appeal to determine a minimum period in the case of a person whose death sentence was commuted to life imprisonment. In this regard, they submit, that Cooke, J.A. was performing a statutory function in contradistinction to sitting as the Court of Appeal. Further, that he was not sitting as a Court in Jamaica at all. The applicant supports both postulations by reference to the cases of R v. Simpson (1996) 48 WIR and R v. Williams and Banks (1997) 51 WIR.

9 The applicant submits the view that the decision of Cooke, J.A. is a decision of a public authority empowered by statute and thus is amenable to Judicial review. This is all the more so as there is no remedy available to the applicant particularly as there is no right of appeal from this decision. Procedurally, the applicant says, that on the basis of Huntley v. Attorney General of Jamaica (1994) 46 W.I.R an inmate had the right to make representations to the Judge before a minimum period of incarceration was ordered in his case. Further, they contend, that there is no distinction in principle between the procedures under the amendment to the Offences against the Person Act Section 4, as considered in Huntley supra, and the procedure under Section 5A of the Parole Act. In both points of reference the applicant posits that judges had been given and are now given, the mandate to extend the minimum period of elapsed time before which an applicant becomes eligible for parole.

10 In response, the Respondent, for the most part, was content to say that the route taken by...