Response of the ODPP to INDECOM's Special Report to Parliament re Robert Hill Murder Matter
RESPONSE OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS TO THE INDEPENDENT COMMISSION OF INVESTIGATIONS’ REPORT TO PARLIAMENT CONCERNING THE ROBERT “KENTUCKY KID” HILL MURDER MATTER
THE 5TH DAY OF NOVEMBER, 2014
Executive Summary
1. On Thursday, the 30th of October 2014 the Independent Commission of Investigations (“INDECOM”) laid a report before parliament regarding the Office of the Director of Public Prosecutions (“ODPP”) exercise of its constitutional authority to discontinue criminal proceedings in the case concerning the murder of Robert “Kentucky Kid” Hill which was discontinued in the Home Circuit Court on the 14th of October 2014.
2. The existence of this Report and its journey to Parliament was communicated through the media on Thursday, the 30th of October 2014. However, it was not until Friday, the 31st of October 2014 that the actual report was delivered to the ODPP.
3. A close examination of the Report reveals misstatements and misconceptions relating to fact, law and policy. It is our considered view that such a Report has the potential to mislead the public, undermine the well-established professional courtesies between key stakeholders within the criminal justice system and thereby affect the public confidence in the administration of justice.
4. This paper therefore provides a response to the arguments advanced by INDECOM.
5. It provides a background to the matter and a detailed examination of the powers of the DPP under the Jamaican Constitution. It examines the role of the investigator in relation to criminal matters and the subtle difference between initiating a prosecution and conducting a prosecution.
6. In light of INDECOM’s criticisms regarding the exercise of our discretion to discontinue criminal proceedings in the present case this paper endeavours to provide an overview of how the Prosecution exercises its constitutional discretion to prosecute.
7. A detailed examination of the Report laid by INDECOM before Parliament reveals serious misstatements and misconceptions of law and policy in relation to:
a. self-defence;
b. circumstantial evidence;
c. identification evidence;
d. admissibility considerations;
e. joint enterprise/common design;
f. the rights of Accused persons in a criminal trial vis-a-vis their status as witnesses called by the Coroner in an Inquest;
g. the remit of investigators; and
h. the role of the DPP.
8. Consequently, this paper has endeavoured to examine the Hill murder case in a careful and detailed manner, which includes an evaluation of the law in relation to murder; scientific evidence, the evidence which INDECOM describes as significant in its Report; self-defence; and circumstantial evidence.
9. We have also sought to provide guidance in relation to the procedural aspects of this case. To this end, the paper examines the nature and function of the Coroner’s Court vis-à-vis the role of the DPP. It also examines the procedure adopted in relation to entering a formal verdict of not-guilty and the significance of a Nolle Prosequi.
10. The ODPP recognises the importance of a body such as INDECOM in a society where extra-judicial killings by agents of the state are cause for great concern. It is critical that the key stakeholders in the process work hand in hand to rid our society of this problem.
11. In light of our assessment of the Report, it is recommended that an oversight body be established to allow for complaints by aggrieved persons relating to actions of INDECOM, whether through abuse of office/authority, to ensure the constitutional right to fair trial and due process of members of the Security Forces is respected, as with any other citizens.
12. This paper concludes that:
a. the Report by INDECOM breaches the well-established boundary between prosecutor and investigator;
b. INDECOM must be careful not to trespass or show flagrant disregard/disrespect for the remit of other stakeholders within the criminal justice system;
c. Our understanding was that the Investigating Officer and Legal Officer from INDECOM appreciated from the outset that the Prosecution would be disposing of the matter as there was no evidence supporting a charge of murder;
d. the need for public confidence in both the Office of the Director of Public Prosecution and INDECOM dictates that neither publicly undermines the other; and
e. the conduct of INDECOM betrays the professional courtesies the DPP has always extended which involves an invitation to communicate a difference of opinion and thereby invite a response by way of an explanation or review of any previous decision.
13. We solemnly hope that going forward the importance of the maintenance of these accepted professional courtesies will be recognized by all parties in advancing the welfare of the administration of justice.
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FULL TEXT
“… The role of the Prosecutor excludes any notion of winning or losing; his function is a matter of public duty than (sic) which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, seriousness and justness of judicial proceedings.” Boucher v The Queen (1954) 110 CC 263, 270
Introduction
1. The Director of Public Prosecutions (“the Director;” “the DPP”) functions within a well-defined legal context established by the Constitution of Jamaica and developed by the common law. The Director derives authority from section 94 of the Constitution of Jamaica. Section 94 (3) delineates that:
“The Director of Public Prosecutions shall have the power in any case in which he considers it desirable so to do –
a. to institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offense against the law of Jamaica;
b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”
2. Section 94 (6) of the Constitution provides further: “In the exercise of the powers conferred on him by this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority.”
3. Flowing from this constitutional empowerment, it is within the remit of the Director to determine which cases may be prosecuted and which must be discontinued. In the case of Michael Gayle v Jamaica,[1] a case where the then incumbent Director opted not to prosecute a matter after the Coroner had ruled that members of a joint security forces team be charged, the Inter American Commission on Human Rights (“IACHR”) at paragraph 43 found that:
“[T]he Director of Public Prosecutions has exclusive authority… for making all decisions concerning criminal prosecutions arising in Jamaica…. Accordingly, [the Director of Public Prosecutions] retains exclusive authority for pursuing criminal proceedings in respect of the circumstances relating to [in this case] Michael Gayle.”
4. The conclusion reached by the IACHR, coupled with the express wording of section 94 (3) (c), clearly demonstrates not only Parliament’s confidence in the holder of the office of Director of Public Prosecutions to execute his or her function with sound judgment, but also that there will inevitably be cases where a Director of Public Prosecutions will have to decide to discontinue a case as the circumstance may require.
5. In essence, the Report made to Parliament (“Report”[2]) by the Independent Commission of Investigations (“INDECOM”) constitutes a challenge to this time-honoured constitutional authority to discontinue criminal proceedings, specifically in the case concerning the murder of Robert Hill which was discontinued when a formal verdict of not-guilty was returned by a jury in the Home Circuit Court on the 14th of October 2014.
6. In light of the Report, this paper presents a considered response to the challenge of the DPP’s decision to discontinue the prosecution in the murder case concerning Mr. Hill. Although the Director is not required in law to furnish reasons for the exercise of this constitutional authority, in the interest of clarity and accountability, this paper will outline the legal considerations which informed this decision. Since the ODPP is concerned solely with criminal prosecutions, this paper will not address the constitutional issues of right to life or comment on INDECOM’s call for reform of the Coroner’s Court, which are matters properly within the remit of Parliament’s contemplation.
The Role of the Investigator
7. The ODPP is not an investigative entity and consequently, it relies on investigators from all referring entities to collect evidentiary material and collate a file for prosecution. INDECOM is the investigative body tasked with the responsibility of investigating cases in which members of the Jamaican Security Forces are alleged to have acted wrongfully in the exercise of their duties. In respect of the role occupied by investigators within the system of justice. Generally, investigators are expected to:
a. Appreciate a report;
b. Commence investigations;
c. Collect statements and other relevant evidentiary material;
d. Arrange for any identification parades etc. that need to be held;
e. Consult with the prosecutorial authority prior to a charge on any issues that may arise;
f. Lay appropriate charges, i.e. initiate prosecution by laying the information before the Court;
g. Compile a complete case file;
h. Submit a complete case file before the Court;
i. Have the Accused person brought before the Court in a timely manner;
j. Provide personal support and care to all victims and witnesses, ensuring all appropriate support services are informed;
k. Where a file is incomplete but before the Court, have it completed in a timely manner;
l. Maintain contact with witnesses;
m. Attend Court and keep up to date on the status of the matter;
n. Engage in pre-trial discussions with the prosecutor; and
o. Attend Court for trial with witnesses and exhibits.
This does not constitute an exhaustive list and INDECOM’s role is no different. By virtue of section 25 of the Independent Commission of Investigations Act, an INDECOM investigator SHALL,
“...on a request by the Director of Public Prosecutions, in relation to a prosecution arising out of an incident attend court and provide such other support as the Director of Public Prosecutions may require, in relation to the proceedings instituted against the concerned member of the concerned official of this Act.”
Initiating Prosecution vs. Conducting Prosecution
8. It ought to be noted that initiating prosecution is simply the laying of a charge before the Court. Conduct of the prosecution is had by the Clerk of the Court in the Resident Magistrates’ Courts; Crown Counsel from the ODPP in the High Court or (in some cases) Resident Magistrates’ Courts; or external attorneys operating by way of fiat issued by the DPP. Attorneys operating on behalf of any investigator hold a “watching brief” only, and have no standing to represent the prosecutor or address prosecutorial issues, such as disclosure, in open Court.
The Decision to Prosecute
9. In all criminal trials the burden of proof rests on the Prosecution and never shifts to the Defence. It is the duty of the Prosecution, through its witnesses, to establish beyond a reasonable doubt the criminal culpability of the accused. In so doing, the Prosecution subjects the case to an objective assessment and considers its merits while ignoring anecdotal and irrelevant evidence.
10. To this end, prosecutors are duty-bound to ensure that the law is properly applied and must address their minds to the merits of each case. A prosecution should not be embarked upon or continued unless there is admissible, substantial and reliable evidence that a criminal offence has been committed by the person(s) charged with the offence. This practice is codified in “The Decision to Prosecute: A Jamaican Protocol” (“the Prosecution Protocol”) prepared by the ODPP.[3]
11. The need for the prosecutor to employ an ethical approach in prosecutions is emphasised in the case of Boucher v The Queen(supra):
“It cannot be overemphasised that the that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Prosecution considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see all available proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must be done fairly.”
12. A criminal trial is therefore embarked upon where there is a reasonable prospect of securing a conviction (even where the evidence is weak) and if it would be in the public interest to proceed to trial. The Prosecution ought not to, and does not, engage its own theories about a case independent of the potential evidence. Prosecutors, however, must be guided by the interests of justice, fairness, prosecutorial ethics and the rule of law. Consequently, the question to which the Prosecution must ultimately address its mind is whether a prosecution could reasonably be mounted based on all of the available material.
Reasonable Prospect of Securing a Conviction
13. The first hurdle to be surmounted in a prosecutor’s assessment of a case is an evidentiary one. In making an assessment of the case a number of factors are taken into consideration, as outlined in the Prosecution Protocol. Among them, and germane to this case, are the following:
a. Can the evidence be used in Court? (admissibility)
b. Is it likely that the evidence will be excluded by the Court?
c. What explanation had the suspect or accused given? (the stated defence)
d. Is the Court likely to find the explanation credible in light of the evidence as a whole?
e. Is there any further evidence that could be obtained that would support the integrity of evidence already obtained? (including material explored at an Inquest)
f. Are there any concerns over the accuracy, reliability or credibility of the evidence of any witness? (this automatically includes questions of availability of witnesses)[4]
14. If, upon microscopic scrutiny of the available evidence against the backdrop of these factors, the prosecutor cannot favourably answer these questions, section 94 (3) (c) of the Constitution becomes the only viable option and that would be the end of the matter. Therefore, the public interest stage is only given contemplation if the prosecutor is satisfied that the evidential criteria have been established. (For the purposes of this paper, that stage will not be discussed since it is our considered view that the evidentiary hurdle was not surmounted in this case.)
15. INDECOM notes in its Report that, “The legal test for the sufficiency of evidence is whether a prima facie case has been made out,” while going on to acknowledge that, “Modern prosecuting authorities, in deciding whether to charge, have adopted the higher standard of whether there is a realistic prospect of conviction.”[5] The Report concludes on the point, “The Commission...agrees that a prosecution should not commence, or continue, where there is no reasonable likelihood of conviction.”[6]However, it is noted immediately thereafter[7] that INDECOM has focussed the spotlight of its analysis on whether or not there was a prima facie case (the lower standard, applicable to investigations rather than prosecutions) as the central factor to be determined in this case.
16. As has been widely established in jurisdictions worldwide, this is the wrong approach to making a determination on whether to prosecute. It is well known that a prima facie case can be found on the slimmest of evidence as it appears on the face of the allegations and, at this stage of assessment, evidence rebutting the case, such as a possible defence, is not considered. A prima facie case being made out simply means that there would be sufficient evidence to prove a particular proposition or fact being put forward by any party to the case and it does not need to be conclusive or irrefutable.
17. By way of a contrast, it is evident that assessing the reasonable prospect of securing a conviction is a more profound and practical method in determining whether to prosecute as it takes into consideration factors that would be rightly ignored at the prima facie stage. This evidentiary stage assessment can never be disregarded by the prudent prosecutor exercising sound judgment. To do so would amount to a gross neglect of prosecutorial responsibility and a flagrant disregard for the code of ethics.
18. In the 2013 English case of R (on the application of F) v the Director of Public Prosecutions and “A”,[8] the Lord Chief Justice considered an application for judicial review of the refusal of the Director of Public Prosecutions to initiate a prosecution for rape. His Lordship stated that it was only in the very rare case that the Court can properly decide that it should interfere with the decision not to prosecute. He went on to say that,
“On the evidential question whether the prosecution has a realistic prospect of success, the responsibility for the decision requires the CPS [Crown Prosecution Service] to make an informed judgment ‘...of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere’.”[9](Emphasis added)
What are the Ingredients of Murder?
19. In the Robert Hill murder case, five (5) persons were charged for murder by the Coroner’s Jury. For the purpose of the law, murder is the unlawful taking of an individual’s life in circumstances where the person accused of murder was not acting in lawful self-defence. In establishing a charge of murder, the prosecution must prove the following:
a. The person named or referred to in the indictment is dead;
b. The Accused, by a voluntary and deliberate act, brought about the death of the individual;
c. At the time the Accused acted, he or she intended to kill or cause the deceased grievous bodily harm; and
d. The Accused person was not acting in self-defence or under and any lawful justification.
20. In discharging its prosecutorial burden, the Prosecution must prove ALL the elements of murder to the requisite standard, i.e. “beyond a reasonable doubt” or to the satisfaction of the tribunal of fact so that they feel sure in respect of each element of the offence. Therefore, if self-defence arises on the Prosecution’s case, and there is no admissible evidence to refute the absolute defence of self-defence, the Prosecution has no reasonable prospect of securing a conviction even in the face of some evidence which on one interpretation gives an impression of the culpability of the Accused.
Background to the Robert Hill Murder Case
21. It would appear from some of the public discourse surrounding Robert Hill’s untimely demise that there is some confusion as to whether there was any connection between an unauthenticated You Tube video featuring what appeared to be Mr. Hill being assaulted by men dressed in police denim, and the matter and the fatal shooting which took place on the 8th of December 2009.
22. In January of 2010, two (2) matters were referred to the ODPP concerning Robert Hill. The first, a Complaint of Robert Hill against Inspector Linton Allen and Sergeant Howard Wilkes for Assault, was received into the ODPP on the 19th of January 2010. The second was the Fatal Shooting of Robert Hill on the 8th of December 2009 and was received into the ODPP on the 29th of January 2010.
23. As is customary, files referred to the Office are minutely examined and a ruling prepared by the Office and thereafter delivered to the referring body. In the case of the referrals touching and concerning Robert Hill, which were submitted independently of one another, both matters were separately and clinically examined with a view to advising on the way forward. As a part of our prosecutorial remit, the ODPP routinely considers related files together in order to ascertain the possibility of a nexus, and if so, we proceed under the principle of ‘joinder of charges’.
24. As it concerned these two matters, we found after careful assessment that there was no apparent and evidentiary connection between them. Without any evidentiary support, neither the prosecution nor the Court can draw a connection between the two matters simply because police officers were allegedly involved in both incidents. Consequently, two (2) separate rulings were prepared in respect of two (2) separate sets of police officers.[10]With respect to the assault matter, it was recommended that Inspector Linton and Sergeant Wilkes be charged for assault further to the complaint of Mr. Robert Hill. This matter was adjudicated before the Half Way Tree Resident Magistrate’s Court, where both accused officers were found not-guilty.
25. With respect to the fatal shooting matter, the Director’s ruling recommended that nobody be criminally charged, but that the matter be further referred to the Coroner’s Court for an inquiry into the circumstances of Mr. Hill’s death. Upon conclusion of the Coroner’s Inquest into this matter in July 2014, the Coroner ordered warrants for the arrest of four (4) persons who deponed as witnesses and one (1) to whom reference was made throughout the inquiry, thus returning the matter to the ODPP for the Director to determine how to proceed with the matter. This is in keeping with section 20 (3) of the Coroners Act, the previously referenced section 94 of the Constitution and the routine practice throughout the history of the Office.
The Murder Matter
26. As at the 14th of October 2014 when the matter was disposed of in the Home Circuit Court, the file was complete and what constituted the file were the following:
a. Statements from the three (3) police officers charged, in which two (2) officers admitted to shooting Robert Hill in circumstances that demanded them to defend themselves from his attack;
b. Statement of Inspector Leighton Gray who dispatched the three (3) officers to Ivy Green Mews, the address of Robert Hill;
c. Statement from the fourth accused, Donovan Brown, who stated that Robert Hill was in possession of an illegal .38 Smith and Wesson firearm with which he intended to use in the commission of a robbery;
d. Statement of Kumiko Hill, wife of the deceased, who heard gunshots but did not witness the incident;
e. Statement of Detective Constable Damian Williams, Scenes of Crime Unit, who processed the scene and swabbed the hands of the police and the deceased and noted, among other things, an expended bullet in the Nissan from which the deceased allegedly emerged;
f. Statement of Constable Dwayne Brown, Scenes of Crime Unit, who took photographs and collected substance resembling blood;
g. Statement of Sergeant Leon Johnson, Area 5 HQ, who collected and handed over the firearms of the concerned officers for ballistics testing;
h. Detective Inspector Marcia Garrick who mediated between Robert Hill and his alleged girlfriend, Marvia Morgan;
i. Statement of Marvia Morgan which disclosed unwanted affections from Robert Hill;
j. Post Mortem Examination Report of Dr. Dinesh Rao which disclosed “a perforated gunshot and of a wound over the front and lateral aspect of the right shoulder,” which he later deponed was sustained with the deceased facing the shooter;
k. Forensic Certificate which certified that there was gunshot residue at trace levels on the right and left hand of the deceased; and
l. Ballistics Report which certified that the recovered .38 Special Smith and Wesson revolver recovered from the deceased was in good working condition and was fired at least twice.
27. In conjunction with these documents, the depositions of sixteen (16) witnesses from the Coroner’s Inquest were thoroughly combed for any new and revelatory material that could amount to cogent evidence to be placed before a jury. No new admissible and enlightening evidence was newly unearthed.
“Evidence” highlighted by INDECOM and its significance
28. INDECOM has listed nine (9) witnesses at page 3 of its comprehensive report. The (formerly) Accused persons represent five (5) of these nine (9) witnesses. In other words, the methodology employed by INDECOM in its Report would see the Accused being indicted for murder by the DPP while simultaneously being called as witnesses by the prosecution in their own murder trial. This is in direct opposition to the age-old principle that the prosecution bears the burden of proof in a criminal trial and that Accused persons have the right to silence at their trial. By INDECOM’s own assessment, the four (4) remaining witnesses are not witnesses of fact i.e. not eyewitnesses. There is no legal avenue known to our jurisprudence that would facilitate them being treated as witnesses of the facts. INDECOM’s original analysis is therefore patently misconceived.
29. In circumstances where an Accused has given a witness statement prior to being viewed as a suspect his or her statement may be admitted into evidence and read into the record before the jury. Any statements made after his or her status changes from mere witness to suspect are treated differently as every person accused of an offence is possessed of the right against self-incrimination[11] as it would offend his constitutional right to a fair trial.[12]Further, in the words of section 16 (f) of the Constitution, a person charged with a criminal offence “...shall not be compelled to testify against himself...” (Emphasis added).
30. INDECOM has referenced at page 29 of its Report that, “Technically Gray and Gordon could give direct evidence as to what the police officers told them.”Based on the law, this is a legal and factual impossibility since the only persons present at the time of the incident were Thomas, Anderson and Warren. No other individual apart from these three (3) officers can give direct evidence since direct evidence, by virtue of INDECOM’s own definition at paragraph 5.11“comes from persons who claim to have personal knowledge of the facts in issue.”
31. The legal standard applied by the prosecution in assessing Robert Hill’s case is in keeping with well-established principles of the law on hearsay evidence. Even if the ODPP were to do as INDECOM has suggested and tender the statements (on the basis that they were not suspects at the time they gave those statements) this would serve no useful purpose as those statements justify the shooting on the basis of self-defence.
32. For the sake of argument, if the ODPP followed INDECOM’sreasoning we would then have to seek to tender into evidence the depositions containing “inconsistent explanations” (paragraph 5.11 of the Report) to show evidence of guilt as INDECOM has opined. The Prosecution would then be faced with a mountain of legal opposition from the law itself, the presiding judge and the defence attorneys in the case. It would have been clear that the officers deponing at the Inquest were murder suspects at the time of the Inquest as was evidenced by the line of questions from the cross-examiners at the Inquest. It would also have meant that the officers and Brown would not have benefited from the protections available to Accused persons in criminal proceedings and the caution that anything they said would be taken down and used as evidence against them. In effect, this renders the use of the depositions in this manner inoperable and legally insurmountable in the criminal trial.
33. What then would the Prosecution be left with before the jury? Statements insisting upon self-defence? Witnesses in the persons of Grey, Garrick, Washington and Morgan who cannot refute the officer’s assertion of self-defence? It should be remembered that Accused persons cannot be compelled to give evidence against themselves. In fact, Accused men and women have an inalienable right to say nothing at their trial since it is the Prosecutionthat bears the burden to prove their guilt.
34. Following INDECOM’s reasoning the Prosecution’s case would be further unravelled if it insisted upon placing Garrick and Grey in the witness box. Grey would only be able to speak about what the officers told him, which was that they acted in self-defence, while Garrick would be restricted to an account that excluded all the hearsay and irrelevant narrative that characterised her testimony at the Inquest. Further, no Court properly constituted would allow evidence of what INDECOM has uniquely dubbed an “in Court confrontation” (as opposed to dock identification) as the locus classicus of R v Leroy Hassock[13] has made it trite law that identification by confrontation is inadmissible in a criminal trial as it offends the fundamental principle of fairness. This paper will go further to comment that the arguments and logic advanced in paragraphs 5.21-5.23 of the Report are inconsistent with the established principles and treatment of identification evidence in our jurisdiction.
The Issue of Motive
35. Great emphasis has been placed by INDECOMon the issue of motive. It is trite law that the Prosecution does not have to establish motive but that evidence of a motive can be adduced at trial as relevant to and in support of other evidence.The problem is that there are no provable acts or words that could constitute a motive attributable to the officers, Brown and Morgan. Not only was much of Detective Inspector Garrick’s account inadmissible hearsay but there is no potential witness to be placed on the witness stand to establish a motive based on previous acts and/or words attributable to the Accused persons. Additionally the prosecution would have been hard-pressed to prove that Miss Morgan was the person to whom Miss Washington claims she spoke via telephone, and the list goes on.
36. Without the prompting of INDECOM the Prosecution had given careful thought to all possible scenarios to prosecute the case. However, as is evident, there were basic evidentiary obstacles that could not be overcome with the available material and thus the Prosecution deemed this matter as one to be resolved by way of a jury returning a formal verdict after outlining in detail to the jury all the issues arising, as indicated here. Invariably, had the prosecution embarked upon INDECOM’s recommended course of action the prosecution would have run afoul of the standard to which it holds itself, thereby exposing the State to the possible allegations of malicious prosecution.
Scientific Evidence
37. In our press release dated the 14th of October 2014, we briefly pointed out the aspects of the scientific evidence that supported the policemen’s assertion of self-defence. For all intents and purposes, scientific evidence cannot by itself prove the commission of the offence of murder. It is the cumulative effect of such evidence along with other evidence that can point to the guilt or innocence of an Accused. According to Dr. Oriola Sallavaci’s, The Impact of Scientific Evidence in Criminal Trials: The Case of DNA Evidence:
“There is confusion in perceptions of what science can and cannot do and about its methods. When science is used in the criminal trial context, it is important to understand that its purpose is not to substitute trial procedures, nor guarantee absolute truth or certainty. …science has its limits and can be fallible as all other human enterprises. When scientific facts are introduced at court by the expert witness, they are subject to challenge just as any other type of evidence. …. It offers a range of facts and interpretations which are then selected, applied and scrutinised following the processes and procedures of the adversary system. Problems may arise when science in court is afforded more authority than it deserves…”(Emphasis added).
38. In this regard INDECOM seems to have fallen into error in its assessment of the significance and utility of the scientific evidence in the instant case. Without any reference to the Post Mortem Examination of the Consultant Forensic Pathologist, Dr. Dinesh Rao (which would constitute independent and instructive evidence and add to the cumulative impact of the evidence[14]), the Commission has drawn conclusions about the forensic and ballistic evidence while ignoring the predictable impact, admissibility and treatment of scientific evidence in this case.
39. Scientific evidence by its very nature is independent and tends to support or refute the factual allegations in a criminal trial. It must therefore be viewed in the context of the totality of the evidence. The available science by itself cannot offer any proof that an offence has necessarily been committed and that particular individuals committed the offence. In circumstances such as the one ventilated in the Coroner’s Court, experts may opine as to the reason for their findings. As was seen, they may offer hypotheses as to, for example, how gunshot residue (GSR)could have been on the deceased’s hand. In establishing that the science of GSRcan be used to refute or confirm whether a firearm was fired by an individual, the Forensics Expert, Mrs. Marcia Dunbar proffered two (2) possible and competing scenarios:
a. The deceased fired a firearm and originally had elevated levels of GSR but, based on activity such as the area coming into contact with another surfaceor washing of the hand after firing before the sample was taken, the levelof GSR was reduced to trace levels;[15] and
b. Someone who fired a firearm came in contact with someone who had not and transferred GSR from their own hand to the hands of that person, in this case, the deceased.
40. A refinement of her explanation was that the longer the time period between the firing of the firearm and the taking of the samples, could result in the initial deposit being reduced due to activity. She opined that this reduction could also have been due to the handling of the body in removing the deceased from the scene of the shooting to the morgue.[16] In her theorising she told the court that she would have expected to see elevated levels of GSR if the individual had fired a firearm and agreed with the INDECOM Commissioner, who was cross-examining her, that trace levels could refute a claim that the deceased had discharged a firearm and that her results did not tend to support the deceased having fired a firearm.
41. However, in further cross-examination she told the Commissioner that,
“...based on my scientific test the results do not suggest that the deceased individual did not fire a firearm. He could have fired a firearm based on the results...”
42. In light of her explanations, our assessment must contemplate that the defence finds support in her findings even with the alternative explanation tending to support an allegation that the deceased had not fired at the police. The difficulty with the latter is that there is no alternative factual account apart from the narrative given by the police and so this alternative forensic postulation is left dangling in abeyance without actual evidence to support it. At best, the forensic evidence is ambivalent or neutral and it must always be borne in mind that the prosecution must prove its case beyond a reasonable doubt.
Self-Defence
43. In 1987 the Judicial Committee of the Privy Council settled the law on the proper direction to be given in cases of self-defence in Solomon Beckford v the Queen.[17]In Solomon Beckford the learned trial judge at first instance gave directions similar to that which was cited by INDECOM at page 33 of its Report.
“A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily harm may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional.”
44. In allowing the appeal and quashing the conviction the Privy Council restated the law, finding that this direction was a material misdirection. The direction that ought to have been given was that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another. This meant that authorities such as the 1971 case of Palmer v R cited by INDECOM were rendered bad law as it concerned the proper directions for self-defence, and the Jamaican Court of Appeal has consistently, firmly and without exception applied the test and direction laid down in Solomon Beckford.
45. This was the legal standardcontemplated and applied by the DPP in Robert Hill’s case as application of the correct law is necessary in arriving at a decision that can withstand scrutiny within the context of the legal issues. It would appear that in assessing the critical issue of self-defence INDECOM contemplated and applied outdated law, thereby arriving at a conclusion inconsistent and at variance with the current state of the law in Jamaica and most (if not all) of the Commonwealth.
46. In applying the subjective test laid down in Solomon Beckford to the statements of the persons accused in the Hill murder, one inevitably recognises that the Prosecution would find it impossible to contradict their assertions of acting in self-defence as there is absolutely no evidencethat the deceased was NOT armed at the time of the incident. In fact, the statement given by Mr. Donovan Brown (the deceased man’s cousin) to the Bureau of Special Investigations (“BSI”) suggest that just before the shooting Mr. Hill was in possession of the firearm his cousin had seen him with on previous occasions. In circumstances such as these, without direct evidence to the contrary,it would be impossible for the prosecution to negative self-defence.
Circumstantial Evidence
47. Reference was also made to circumstantial evidence in the Report. Circumstantial evidence simply means that the Prosecution relies upon evidence of various circumstances relating to the crime, which, when taken together, establish the guilt of the accused beyond a reasonable doubt. In other words, the Prosecution must satisfy the tribunal of fact so that it feels sure of the guilt of the accused.[18] Consequently, if there exist one or more circumstances which are not merely neutral in character but are inconsistent with any other conclusion than that the defendant is guilty, a tribunal of fact cannot be sure of the Accused person’s guilt.
48. Circumstantial evidence, like any other evidence, must withstand the test of admissibility and cannot offend the rules of evidence including rules againstinadmissible hearsay. The original file constituting the documents listed at paragraph 8, a - o above, could not support a charge for murder, hence the original ruling prepared by the DPP. At the time of offering no evidence, the depositions were considered along with the original material. These depositions revealed, based on the questions put to the witnesses (including four of the accused persons), that there was a suspicion that Thomas and Morgan were known to each other and colluded in the murder of Robert Hill. However, there was and remains no evidence to support this suspicion and all the other evidence irrefutably contradicts this theory. It is to be noted that suspicions and theories, without more, cannot substantiate any charge before any court against any Accused person.
The Coroner’s Court
49. In light of the concerns for the decision taken by the Director to offer no evidence after the Coroner’s Court found that all five (5) persons be charged for murder, aspects of the Coroner’s Court and Inquest must be highlighted, since both stand in sharp contrast to the Circuit Court and criminal trials in the Circuit Court.INDECOM has charged that the Coroner’s system is in need of reform and has made recommendations in this regard. Our own discussion of the Coroner’s system will be limited to our interaction with the Coroner’s Court in this case, observations made regarding the Inquiry, and the impact of the Coroner’s findings upon the decision to prosecute.
50. Inquests are formal court proceedings held to publicly review and inquire into the circumstances of a death. By virtue of this mandate the Coroner has wide latitude to inquire into the death of an individual who has died in violent circumstances within its jurisdiction. In exercise of the powers conferred upon him the Coroner may, under section 22A, summon and compel any person to attend an inquest to give evidence.
51. This therefore means that the Coroner, in conducting the inquiry, can summon anyone as “persons of interest”, including those implicated or involved in the circumstances touching and concerning the death of another. They may be compelled to give evidence at the convened Inquest since the latter is not a trial and the rights that would accrue to Accused persons would not arise. It also means that the Coroner can hear evidence that would be otherwise inadmissible hearsay in a criminal trial since an Inquest is not a trial of the issues but an inquiry into the circumstances of an individual’s death.
52. Thus, for example, evidence of statements made by the deceased to a third party which would be inadmissible in a criminal trial would be permissible before the Coroner. A reading of the deposition of Detective Inspector Garrick clearly demonstrates this. The Coroner would also be within his right to hear evidence of telephone conversations (which would constitute inadmissible hearsay) even in circumstances where insufficient or no evidence of voice identification is led. Again, in the absence of the proper evidentiary foundation, this would beinadmissible as evidence in a criminal trial.
53. In view of his wide powers, it comes as no surprise that the Coroner could have allowed Detective Inspector Garrick to identify Constable Thomas as a man who had previously visited the police station at which she was stationed. That exercise of identifying Thomas after he had made several attendances in the Coroner’s Court amounted to an improper identification process devoid of any fairness to the subject of the identification. This could not be used in a criminal trial as it would be improper and unfair.
54. Another crucial element of a criminal trial that distinguishes itself from a Coroner’s Inquest isthe record of the evidence and the requirement for careful and proper directions by the Judge to the jury in the form of a summation, which is recorded by a shorthand writer. The combined record of theevidence and summation in a criminal trial is generally regarded as an accurate and reliable record of proceedings in the event of any review or appeal.
55. In the case of an Inquest, the record of proceedings is generally kept by the Coroner himself and he is not required to record his detailed summation to the jury as in the case of a Judge in a Circuit Court trial. Although the Coroner is taken to know the law, there is no record of his directions to the jury on the relevant legal principles so we cannot be certain of the guidance given to the jury and the law that was impressed upon them. Since this is not a criminal trial one can appreciate the lack of necessity for detailed record keeping. However, the absence of a recorded summation puts the reviewer of the depositions at a serious disadvantage as there is no way to assess what guided the verdict in tandem with the evidence.
56. Peculiar to this Inquest was the fact that it subsisted intermittently for over three (3) years, from the 25th of January 2011 to the 24th of July 2014, andthe jurors were not sequestered, thereby having long periods without the benefit of the judge’s direction not to allow themselves to be influenced by anyone or anything in respect of their decision. This is different from a criminal trial where the sitting is continuous until the conclusion of the trial and where the judge gives a warning to the jury at the end of each day’s proceedings.
57. Although the depositions of the Inquest in this case bore all the characteristics described above, they were thoroughly reviewed and found to have disclosed nothing that would change the original ruling of the Director made prior to the Inquest.
58. Author Christopher Dorriessheds light on the difficulty with describing the conclusion reached in the Coroner’s Court as a “verdict,”
“...the Inquest is primarily a fact-finding exercise and the actual discovery of those facts by the examination of witnesses is fundamental. ... Interested persons are offered their first chance to question witnesses in a structured environment where answers must (generally) be given. Consequently it is unfortunate if the proceedings are to be judged on the basis of a one or two word label that has no legal significance elsewhere.”[19]
59. Therefore, the finding of guilt at the Coroner’s Inquest does not mean that the issues relating to murder have been tried nor does it amount to an order for the matter to be prosecuted in the Circuit Court. Though the signingof a warrant bythe Coroner (as in this case) triggers the obligation of the DPP to indict the Accused for murder, it does not fetter the DPP’s discretion to prosecute or to decline to prosecute based on an objective assessment of the available material.
Formal Verdict of Not-Guilty in the Circuit Court
60. A formal verdict facilitates the exercise of the DPP’s powers under section 94 (3) (c) and amounts to a “public airing” of the issues as referred to by INDECOM at page 26 of its Report. It involves the empanelling of a jury in the Circuit Court and the prosecution indicating, by way of an outline, the state of the prosecution’s case in open Court before the jury. If satisfied with the explanation given by the prosecution, the trial Judge directs the jury to return a formal verdict of not guilty and that is the end of the matter. This is a time-honoured, standard operating procedure in the Circuit Court.
61. INDECOM’s suggestion at paragraph 5.67 that “The DPP having herself appeared, made it quite unlikely that a judge would scrutinize the decision to offer no evidence” presumes a lack of judicial vigilance on the part of the presiding Judge and manipulation (or at least inadvertent intimidation) on the part of the Director. This is undoubtedly an improper and misleading statement, which is disrespectful to the office of DPP and to the Judiciary. In all instances where a formal verdict is returned, whether the DPP is herself prosecuting or represented by Crown Counsel, the trial Judge is an active participant in the process and has all authority to question or seek clarity regarding any decision taken to offer no evidence against persons before him or her and can refrain from directing the jury to return a formal verdict of not-guilty.
Nolle Prosequi
62. The nolle prosequi embodies the power given to the DPP under the Constitution to be able to discontinue a prosecution. As a result of the number of prosecutions initiated and brought before the Court on an ongoing basis a significant number of cases are referred from the Courts all across the Island to the DPP requesting the entering of a nolle prosequi for various reasons. By way of an illustration, the number of nolle prosequis granted for the period April 1, 2013 – March 31, 2014, was four hundred and forty-five (445).
63. All requests for nolle prosequis are given scrupulous consideration by the DPP and in circumstances such as the Hill murder requests are not granted. In exercising this power, the DPP is compelled to consider:
a. The fact that there must be a viable prosecutable case;
b. The ingredients of the offence, which must be clearly made out;
c. The nexus of the Accused to the case;
d. A specific reason to discontinue the case (for example, the main witness will be abroad studying for a protracted period but will return thereafter); and
e. Most importantly, in the public interest, the case can be brought back before the Court by way of summons to the Accused so that the case will be prosecuted to a result.
64. The prosecution offers no evidence where there is no evidence to connect the Accused to the offence or where the ingredients of the offence have not been made out at all. It is unethical and would be professionally corrupt to enter a nolle prosequi in circumstances where it is obvious that there is no evidence upon which to proceed against the Accused, whether at present or in the future.
Recommendation
65. Having observed the misperceptions of law, practice and fact on the part of INDECOM, it is our view that the interests of justice would best be served if, like the Jamaica Constabulary Force (“JCF”), INDECOM has a direct oversight body of persons who can offer an avenue to complaints by aggrieved parties where they may have been the victim of what they perceive to be an abuse of office or authority by INDECOM and its officers. This is especially important because, like the JCF, INDECOM has the power to negatively affect the liberty of a citizen. The fact that these citizens are members of the Security Forces does not minimise their rights under the Constitution to a fair trial and due process.
Conclusion
66. A detailed examination of this document has revealed a misconception of law and policy in relation to:
a. self-defence;
b. circumstantial evidence;
c. identification evidence;
d. admissibility considerations;
e. joint enterprise/common design;
f. the rights of Accused persons in a criminal trial vis-à-vis their status as witnesses called by the Coroner in an Inquest;
g. the remit of investigators; and
h. the role of the DPP.
67. To borrow the words of Sir Colin Rimer, citing with agreement dicta of the first instance judge, “it is outside the permitted boundary [of an investigator] to express any concluded view as to criminal liability or civil liability.”[20] The Report concerning this case is a clear breach by INDECOM of the well-established boundary between prosecutor and investigator. Not only has INDECOM drawn conclusions as an investigator but has challenged the prosecution of a matter in circumstances where there has been sound application of the law and observance of the codes that guide prosecutions.
68. The Office of the Director of Public Prosecutions has always appreciated the need for a body such as INDECOM in a society where extra-judicial killings by agents of the state are of real concern. In this regard we respect INDECOM in its efforts to protect the rights of citizens. Needless to say this injunction to protect the rights of citizens must be accompanied by good reason, fairness and sound observance of the law and existing protocols. Therefore, as an investigative body, INDECOM must be careful not to trespass on or show flagrant disregard for the remit of other stakeholders within the criminal justice system.
69. In our view it is disingenuous of the INDECOM Commissioner to say that neither he nor the family of the victim were aware of the course that the ODPP would be taking in this matter, particularly since the Deputy Director of Public Prosecutions handling the file had indicated the intention of the Prosecution to dispose of this matter from the first day the matter was mentioned in open Court. As such applications for bail of the then Accused were not opposed. This indication was made in the presence of the INDECOM and BSI investigators as well as the Legal Officer from INDECOM. Additionally, on the day that the matter was disposed of the assigned INDECOM investigator was present in Court. Furthermore, on the day that the matter was determined efforts to contact the assigned INDECOM Legal Officer, Miss Courtney Foster proved futile.
70. The ODPP communicates the result of the matter to the assigned investigator in the event of his or her absence. The assigned investigator then acts as a liaison to the appropriate channels within their organisation. The ODPP is not required to convey the results of a trial or prosecution to the Commissioner in charge of investigations. Therefore, it is expected that the assigned INDECOM investigator will convey the results of a criminal case through the appropriate channels within that organisation.
71. The ODPP conducts thousands of criminal prosecutions island-wide and as an unfortunate consequence does not have the administrative capacity to communicate with the families of victims in every case. It is the remit of the particular investigator to provide support to the ODPP, liaise with family members and advise the prosecutor of any particular issues that might arise or require the intervention of the prosecutor.
72. It must be noted that the ODPP interfaces with investigators from many entities on a daily basis. These entities include the JCF, not limited to divisions such as the Major Organised Crime and Anti-Corruption Agency, the Organised Crime Investigation Division, and the Major Investigation Taskforce; the Jamaica Defence Force; the Revenue Protection Division; the Financial Investigation Division; the Office of the Contractor General; the Integrity Commission; the National Environment and Planning Agency; the Office of the Children’s Advocate; and the Forestry Department. These interactions have always been done in a spirit of collegiate consultation and the expression of any disagreement is usually aired in a spirit of professionalism. We have never encountered a situation where an investigator would seek to dictate to the ODPP on how a matter should be disposed of or seek to take any disagreements on a course of action into the public domain. The unwritten protocol is private communication (oral or written) between parties to achieve clarity and consensus and, if there is disagreement, we agree to disagree given our respective remits.
73. The need for public confidence in both the ODPP and INDECOM dictates that neither publicly undermines the other. Both Offices must work together as it is in the interest of both Offices that the other succeeds. It is unfortunate that professional courtesies were not employed by INDECOM in relation to this matter; courtesies that might have prevented an unnecessary public ventilation of what has amounted to a strong difference of opinion. To publicly levy the charges underscored in the Report against the Office can bring into disrepute the entire system within which we must function.
74. The ODPP has as its core function the prosecution of matters island-wide and has always thrived on and promoted cooperation with our fellow stakeholders in the administration of justice. Differences of opinion have always been shared in an atmosphere of mutual respect. Furthermore, the law allows for judicial review of any decision taken by the DPP and as such it is well within the right of any person so aggrieved to have their discontent ventilated in a Court of law. The professional courtesies extended by the DPP have always involved an invitation to communicate a difference of opinion and thereby invite a response by way of an explanation or review of any previous decision.
75. The solemn hope going forward is that the importance of the maintenance of these accepted professional courtesies will be recognised by all parties in advancing the welfare of the administration of justice.
Dated the 5th day of November, 2014
[1]Case 191/02, report No 8/03, Inter-Am. CHR, OER/Ser.L/V/II.118 Doc 70 rev. 2 at 308 (2003)
[2] Received by ODPP on the 31st October 2014
[3]At page 13
[4] See page 16 of the Prosecution Protocol
[5] See page 25, paragraphs 5.1-5.2 of the Report
[6]Ibid page 28, paragraph 5.9
[7]Ibid page 28, paragraph 5.10
[8] [2013] EWHC 945 (Admin)
[9] See per Lord Bingham CJ in R v Director of Prosecutions ex parte Manning [2001] 1 QB 330
[10]See Rulingsattached hereto
[11]See Regina v Chandler [1976] 1 WLR 585; reaffirmed in Roshena Chang v R RMCA 17/2012
[12]Section 16 (1) of the Constitution
[13]( 1977) 15 JLR 135
[14] At the Coroner’s Inquest Dr. Rao deponed (at page 5 of the transcript) that the fatal injury was sustained while the deceased was facing the shooter.
[15]Page 77 Coroner’s Inquest Deposition
[16]Page 78 Coroner’s Inquest Deposition
[17](1987), 24 JLR 242
[18]Baugh-Pellinen (Melody) v R SCCA No 156/2007
[19]Coroners’ Courts, A Guide to Law and Practice, Oxford University Press 20014
[20]R (on the application of the Chief Constable of the West Yorkshire Police) v IPCC, Police Constable Lee Armstrong and Leeford Sutcliffe [2013] EWHC 2698 (Admin), paragraph 35
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