Be guided by judge's ruling, DPP urges in INDECOM matter

Be guided by judge's ruling, DPP urges in INDECOM matter

BY ALICIA DUNKLEY WILLIS
Senior staff reporter
dunkleywillisa@jamaicaobserver.com

Sunday, October 25, 2020

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DIRECTOR of Public Prosecutions Paula Llewellyn has said that all parties involved in a recent matter which involved her office and the Independent Commission of Investigations (INDECOM) stand to be guided by the Supreme Court judge's ruling.

She also declared that she will neither “gloat nor crow” about the recent rejection by the Supreme Court judge of an application by INDECOM to get the court to reassess the legality of a 2018 decision by her office not to prosecute two policemen involved in a killing.

“We are not here to gloat or to crow, that is not my modus operandi; I will always consider myself to be a humble prosecutor. What I would encourage my staff, INDECOM and the police, this is not a situation of who did better than who. We all have roles to play in the administration of justice and it is the right of everyone to use the particular provisions of law to assert your position or to test your position as a matter of law. In terms of all that has been said by the judge, it behoves everybody to be guided,” the DPP told the Jamaica Observer on Friday.

The DPP in the meantime made it clear that her office was not at war with INDECOM or any entity which has made use of the available channels to challenge the decisions of her office.

“I paid the professional courtesy of meeting with INDECOM and we had a frank discussion about our varying interpretation of the law. I, along with the team, reviewed the material and indicated by letter that I hold to the same view. I was not surprised that my learned friend would request a judicial review; we prepared ourselves.

I have always thought that INDECOM is an excellent policy inoperative that has been allowed to see the light of day and it is part and parcel of the tapestry within the public interest — which tells you that transparency and accountability when it comes to law enforcement is a very important feature in today's world,” she noted.

The DPP, however, noted that professional courtesies aside, her constitutional responsibilities trumped.

“I make no apology to any agency for the fact that if I make my independent assessment of any referral from an agency to the ODPP in looking at the facts and the law, that if I disagree with their recommendations, being — apart perhaps from the judiciary — I am the only other high office that operates under the constitution, I must fulfil those responsibilities and make my independent assessment,” she declared.

In the meantime she pointed to the usefulness of an impartial eye.

“We have always known at the office that sometimes a clinical, objective view outside of the investigative bubble can be very helpful in the administration of justice, especially depending on certain circumstances and the credibility of the process when it comes to State agencies.

This case reminds me, which is something I am always conscious of when one looks at the fruits of the investigation and you are deciding whether or not to prosecute, that an investigator basically acts as the eyes and ears on the ground, gathers information which on the back of it they have reasonable cause to suspect somebody has committed an offence. But a prosecuting attorney has to be very conscious of that fact always, ethically and professionally, that the standard in terms of viability of a prosecution has to do with proof beyond a reasonable doubt,” Llewellyn pointed out.

In the incident in question Jamar Walford, a resident of Bond Street, Denham Town, Kingston, was shot dead during a 2016 operation led by Deputy Superintendent of Police (DSP) Alfred McDonald and a team of at least four other cops — namely Constable Duwayne Kelly-James and corporals Kirk Adlam, Rhamone Scott, and Gregory South. According to statements on the incident, Walford was first shot and injured by Corporal South at a premises on Bond Street. However, when he ran to an adjoining premises, he was again shot by Corporal Scott.

The police officers, while not denying that they shot Walford, contend that they did so in self-defence as he was armed with a gun and fired at them in an effort to escape detention.

INDECOM, following its investigations, said witnesses claimed that “at all material times during this operation Walford was unarmed”. The witnesses, INDECOM said, also contended that Walford was in his room when the police officers entered and shot him. INDECOM said its investigation also revealed that the Taurus 9mm pistol that the police alleged was seized from Walford was the same firearm seized by the police in a previous operation led by DSP McDonald on April 28, 2016.

Following its investigations, the file was sent to the DPP for a ruling, with INDECOM recommending that Corporal Scott be charged with murder, Corporal South and Constable Kelly-James with wounding with intent, Corporal Adlam with attempting to pervert the course of justice, and DSP McDonald for misconduct in a public office.

However, the DPP, in 2018, ruled that Kelly-James and South be charged with wounding with intent, Scott with murder, and “strong disciplinary proceedings be instituted against DSP McDonald and Corporal Adlam”.

Pressed by INDECOM to reconsider the DPP, after reviewing the case, indicated that she stood by her 2018 ruling. INDECOM, therefore, sought the court's permission to apply for judicial review of her decision not to prosecute McDonald for the offences of murder and misconduct in a public office and Adlam for attempting to pervert the course of justice.

INDECOM contended, among other things, that the DPP “erred in law “ and that her decision was “irrational”.

However, Supreme Court judge Justice Simone Wolfe Reece last week, in handing down her ruling on the matter that was heard on September 22 and October 22 , said the “submission does not have a reasonable prospect of success”.

“An error in the application of the law by itself is not a sufficient basis for the court to review the decision of the respondent. Even if the respondent was erroneous in her interpretation of the law, she has power to determine the prospects of a successful prosecution on questions of law and fact, and exercise her discretion accordingly,” Wolfe-Reece ruled.

She said, too, that “it is clear from the respondent's letter to the applicant that having considered and reconsidered the evidence and after discussions with the applicant, that she concluded that a viable prosecution could not be mounted against DSP McDonald and Corporal Adlam for the recommended offences”.

“I am of the view that nothing has been put before this court that grounds the view that the decision made by the respondent was done in an unlawful or irrational manner that would require the court to order the DPP to revisit the circumstances and that the decision be made again.

“I, therefore, conclude that where there has been no demonstration or allegation of fraud, dishonesty, blatant misapplication of the law to the circumstances put before the respondent, that this court will not exercise its jurisdiction and grant the applicants leave to apply for judicial review,” Justice Wolfe Reece said.

Yesterday the DPP said the matter in relation to the recommended charges to be faced by the two men is still to be tried in the criminal court, while the commissioner of police is to decide whether or not her recommendations in respect of the disciplinary procedures will be followed and in what way.


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