Big win for INDECOM

Appeal Court rules no need for full disclosure until cops are charged

BY ARTHUR HALL
Editor-at-Large
halla@jamaicaobserver.com

Saturday, May 18, 2019

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THE Court of Appeal has shot down a ruling that was in favour of two members of the police Mobile Reserve who had been granted leave for a judicial review and an injunction preventing them from being charged in connection with a 2012 fatal shooting in Rose Heights, St James.

Deputy Superintendent Everton Tabannah and Constable Worrell Latchman had gone to court to challenge a decision of the the Independent Commission of Investigations (INDECOM) that they be charged before being served with full disclosure of the evidence against them.

The legal squabble arose out of an October 31, 2012 joint police/military operation in Rose Heights when a resident, Donald Chin, was fatally shot.

Following an investigation, INDECOM, led by Commisisoner Terrence Williams, recommended that Tabannah be charged with making a false statement to mislead the commission — contrary to Section 33 of the Independent Commission of Investigation (INDECOM) Act, and that Latchman be charged with murder.

Lawyers representing the policemen requested that INDECOM supply them with statements from its report on how it arrived at the decision. They also requested that the statements from the report be submitted to the police commissioner.

INDECOM refused, citing the protection of potential witnesses. This prompted the policemen to file an action before the Supreme Court, seeking leave for Judicial Review of the decision.

In June 2016, following a hearing into the matter, Supreme Court Justice Bryan Sykes (now chief justice) agreed with lawyers representing the two officers and issued an injunction preventing INDECOM from charging them until the judicial review was done.

But yesterday the Court of Appeal ruled that the INDECOM Act does not impose on the commission any greater obligation to disclose than a police officer would have, prior to charging any other person.

The court further ruled that the INDECOM Act gives a general ban on disclosures, subject to certain exceptions, none of which applied in this case.

According to the Court of Appeal, there can be no arguable case that INDECOM exercised its discretion unreasonably in refusing to disclose and the judge was “plainly wrong” to have granted leave.

In addition, the Court of Appeal said leave to apply for judicial review should not have been granted, and the alternative that should have been followed was for the officers to await charge and get disclosure after charge.

In a release yesterday — INDECOM said there are other matters where similar applications were filed, and expressed hoped that these will now be withdrawn.


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