Judge sides with DPP in INDECOM counter

Judge sides with DPP in INDECOM counter

Friday, October 23, 2020

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THE Independent Commission of Investigations (INDECOM) has failed to get the courts to review the lawfulness of a 2018 decision by the director of public prosecutions (DPP) not to prosecute two policemen for an incident that resulted in the fatal shooting of a man.

Jamar Walford, who was of a Bond Street, Denham Town, address in Kingston, was shot dead during an operation led by Deputy Superintendent of Police (DSP) Alfred McDonald, and a team of at least four other cops — namely Constable Duwayne Kelly-James, corporals Kirk Adlam, Rhamone Scott, and Gregory South. The statements collected disclose that 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.

However, according to INDECOM, several witness statements it collected from civilians who were present during the operation said 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 the room 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, by way of a letter dated August 13, 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”.

INDECOM, however, pressed the DPP to reconsider her decision, but the DPP, in a subsequent letter, indicated that she stood by her 2018 ruling. INDECOM, therefore, sought the courts 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 further sought to have the courts declare that there is a prima facie case against McDonald for the offence of misconduct in public office and murder and against Adlam for the offence of attempting to pervert the course of justice, and that the DPP erred in the purported application of the case law in arriving at her decision. It further sought a declaration that failure to charge McDonald and Adlam breaches the procedural obligations implied by virtue of the constitutional guarantee of the right to life.

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, in handing down her ruling on the matter that was heard on September 22 and October 22 this year, 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.

— Alicia Dunkley-Willis

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