CCPR/C/44/D/351/1989

H. Communication No. 351/1989. N.A.J. v. Jamaica (decision

of 6 April 1992. adopted at the forty-fourth session)

Submitted by:

H.A.J. {name deleted)

Alleged victim:

The author

State party:

Jamaica

Date of communication: 3 February 1989 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Bights,

Meeting on 6 April 1992,

Adopts the following:

Decision on admissibility

1.

The author of the communication (initial submission dated

3 February 1989) is N.A.J./ a Jamaican citizen currently awaiting execution at

St, Catherine District Prison, Jamaica. He claims to be a victim of

violations of his human rights by Jamaica. He is represented by counsel.

Although neither author nor counsel invoke specific provisions of the

International Covenant on Civil and Political Rights, it appears from the

submissions that they invoke a violation of article 14 of the Covenant.

Facts as submitted by the author

2.1 The author states that he was charged with the murder of A.Y., but claims

to be innocent. On the evening of 19 January 1983/ he was at the locus in quo

where he saw the deceased with two other persons, one Co. and Ch., the

deceased's brother. Co. and the deceased were holding guns; Co. was hitting

Ch. with his gun, and when the author approached them, he was told not to

interfere. Walking away from the scene of the fight, he heard gunshots and

began running. A.Y. was taken to the hospital, where he died of gunshot

wounds on 21 January 1983.

2.2 On 3 November 1983, the Home Circuit Court in Kingston found the author

guilty of murder and sentenced him to death. The Jamaican Court of Appeal

dismissed his appeal on 20 June 1985. A subsequent petition for special leave

to appeal to the Judicial Committee of the Privy Council was dismissed on

25 January 1988.

2.3 During the trial, the prosecution's main witness, Ms. P.M., girlfriend of

the deceased and the only eyewitness to the crime, testified that A.Y. was

shot in the back. The pathologist, however, opined that the entry wound was

to the right of the abdomen, two inches from the midline of the body.

2.4 The Court of Appeal addressed the issue of the apparent inconsistency in

the evidence, stating, inter alia, that: "it was open to the jury to accept

as a reasonable explanation Ms. P.M. concluding that a wound on the deceased's

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back meant that he was shot from the back when the wound was an exit wound,

and the high probability that the deceased turned around to look when the

firing started behind him."

Complaint

3.1 The author claims that his trial was unfair and that a number of

irregularities occurred in its course. He alleges gross misconduct on the

part of the trial judge, who purportedly misdirected the jury by failing to

explain to it the discrepancy between the testimony of Ms. P.M. and the

evidence of the pathologist. He also submits that the trial judge sent

further directions to the jurors while they were deliberating, which may have

caused additional pressure on them and influenced their verdict.

3.2 The author finally contends that the trial judge erred in permitting

author's counsel to make his final address to the jury before Crown counsel

made hers. In this connection, it is submitted that Crown counsel should have

been required by the trial judge to make her final address to the jury first,

so as to avoid emphasizing the Crown's case to the jury immediately prior to

the summing-up.

State party's observations

4.

By submission of 21 July ig89, the State party argues that the

communication is inadmissible on the ground of failure to exhaust all

available domestic remedies, as required by article 5, paragraph 2 <b), of the

Optional Protocol, It submits that the author's appeal to the Judicial

Committee of the Privy Council was in respect of his criminal case, and that

he still has constitutional remedies that he may pursue. The State party

further submits that the communication does not disclose a violation of any of

the rights set forth in the Covenant.

Issues and proceedings before the Committee

5.1 Before considering any claims contained in a communication, the Human

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

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

5.2 The Committee has taken notice of the State party's contention that the

author still has constitutional remedies he may pursue. The Committee

observes, however, that the author's claims relate primarily to the conduct of

the trial, the judge's instructions to the jury, and evaluation of evidence by

the court. It recalls that it is generally for the appellate courts of States

parties to the Covenant and not for the Committee to evaluate the facts and

evidence in a particular case. Similarly, it is for the appellate courts and

not for the Committee to review specific instructions to the jury by the

judge, unless it can be ascertained that the instructions to the jury were

clearly arbitrary or amounted to a denial of justice, or that the judge

manifestly violated his obligation of impartiality. The author's allegations

do not show that the judge's instructions or conduct of the trial suffered

from such defects. In this respect, therefore, the author's claims do not

come within the competence of the Committee. Accordingly, the communication,

is inadmissible under article 3 of the Optional Protocol.

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6.

The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 3 of the

Optional Protocol;

(b) That this decision shall be transmitted to the State party/ to the

author and to his counsel.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

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