CCPR/C/37/D/281/1988

L. Communication No, 2812/1988. C,. G. v. Jamaica (Decision

of 30 October 1989, adopted at the thirty-seventh session)

Submitted by: C. G. {name deleted)

Allegud victim: The author

State party concerned: Jamaica

Date of communication: 10 February 1988 (date of initial letter)

The Human Rights Committee, established under article 28 of the international

Covenant. on Civil and Political Rights,

Meating on 30 October 1989,

Adopts the following:

Decision on admissibility

1. The author of the communicaticn (initial submission dated 10 February 1986 and

subsequent correspondence) is C. G., a Jamaican citisen currentiy awaiting

execution at St. Catherine District Prison, Jamaica. He is represented by counsel.

2.1 The author was arrested on 7 April 1934 and charged with the murder, together

with a co-defendant, N. D., of one A. I., in the District of Manchester, Jamaica;

he claims to be innocent. On 11 October 1984, he was sentenced to death in the

Westmoreland District Court; his co-defendant was convicted of manslaughter and

sentenced to 30 years imprisonment (reduced to 20 years on appea)). The Court of

Appeal of Jamaica dismissed his appeal on 28 July 1987.

2.2 As to the facts of the case, a/ it is submitted that tle ul)... broke intc

Mr. I.'s house at dawn, together with three other men, allegec!y w ch the intention

of stealing money. Mr. I. and his gamily (his wife and two daughters) were

threatened with death and forced to hand over all their money. according to

Mrs. I.‘s account, her husband was shot during the robbery. One of his daughters,

L. I., also testified that C. G. allegedly had admitted to her that he had shot her

father. During the identification parade on 11 May 1984, L. I. purported to

identify the author as the murderer. In this connection, the author claims that

the police officers who conduct. the parade influenced the deceased's widow and

daughter as to whom they were to identify. He further points out that the

deceased's widow tailed to identify him.

2.3 The author states that the conduct of the identification parade was challenged

unsuccessfully by his legal aid attorney during the trial. He further claims that

he had no opportunity to consult with his lawyer prior to or during the trial and

appeal proceedings.

3. By decision of 21 March 1988, the Working Group of the Human Rights Committee

> ‘anemitted the communication to the State party and requested it, under rule 91 of

the rules of procedure, to provide information and observations relevant to the

question of the admissibility of the communication. It further requested the State

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party, under rule 86 of the rulea of procedure, not to carry out the dea:h sentence

against the author while his communication was under consideration by the Committee.

4. In hie submiesion under rule 91, dated 25 October 1988, the State party argues

that the communication is inadmissible purauant to article 5, paragraph 2 (b), of

the Optional Protocol because the author may etill apply, for especial leave to

appeal to the Judicial Committee of the Privy Council. It further submite that

legal aid will be available for that purpose.

5. In his comments, dated 28 December 1968, author's connsel argues that the sole

isaue in the cace relates to the treatment of identification evidence. He

challenges the author's identification by the deceased's daughter and ceiterates

that the deceased's widow did not identify the author. While conceding that the

case does not fall into the category of "fleeting qlance identification”, counsel

contends that the nature of the identification by the deceased's Jaughter called

for a careful and precise summing up by the judge, given the absence of

corroborative or other supporting evidence. He further submits that the judge did

not comply with the strict rules on ideatification guidelines laid down by the

Court of Appeal of England in the case of R. v. Turnbull] (1976) b/ and that, as a

result, he misdirected the jury on several relevant issues. In particular, the

judge is,aaid to have failed to warn the jury that ao mistaken witness may be a

credible witness) that he misdirected the jury as to the lack of corroborative or

other supporting evidence for the author's identification by the deceased's

daughter; that ne inadequately directed the jury in relation to identification on

the conditions prevailing during the robbery in the wniddle of the night; that he

wrongly inferred that support for the identification by the deceased's daughter

could come from identification evidence of N. D.

6.1 Before considering any claims contained in a communication the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, docide

whether or not it is admissible under the Optional Protocol to the Covenant.

6.2 The Committee has ascertained as it is required to do under article 5,

paragraph 2 (a), of the Optional Protocol, that. the matter is not being examinsd

under another procedure of international investigation or settlement.

6.3 With respect to the requirement of exhaustion of dcmestic cemedier, the

Committee has noted the State party's contention that the communication is

inadmissible under article 5, paragraph 2 (b), of the Optional Protocol, since the

author may still petition the Judicial Committee of the Privy Council. It observes

that the author hae obtained legal representation for this purpose, and that his

counsel in London is currently preparing a petition for special leave to appeal to

the Judicial Committee of the Privy Council on hie behalf. It canavt conclude, on

the basis of the information before it, that a petition for spevial leave to appeal

to the Judicial Committee of the Privy Council would not constitute an effective

remedy available to the author within the meaning of article 5, paragraph z (b), of

the Optional Protocol.

7. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 5, paragraph 2 (b),

of the Optional Protocol)

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(b) That, since this decision may be reviewed under rule 92, paragraph 2, of

the Committee's rules of procedure upon receipt of a written request by or on

behalf of the author containing information to the effect that the reasons for

inadmissibility no longer apply, the State party shall be requested, taking into

account the spirit and purpose of rule 86 of the Committee's rules of procedure,

not to carry out the death sentence against the author, before he has had a

reasonable time, after completing the effective domestic remedies available to him,

to request the Committee to review the present decision;

(c) That this decision shall be transmitted to the State party, to the author

and to his counsel.

Notes

a/ = =6The author's submissions do not provide a detailed account of the facts.

The following description follows the outline of the facts in the judgment of the

Court of Appeal.

b/ See 63 Cr. App. R 132. These guidelines are also applied by Jamaican

courts. Subsequent to counsel's comments, the Judicial Committee of the Privy

Council allowed the appeal of Oliver Whylie and quashed the judgment of the Court

of Appeal in hie case. In its judgment of 27 July 1989, the Judicial Committee of

the Privy Council stated that "Their Lordships have no hesitation in concluding

that a significant failure to follow the guidelines laid down in Turnbull] will

cause the conviction to be quashed because it will have resulted in a substantial

miscarriage of justice."

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