CCPR/C/46/D/237/1987

Communication No. 237/1987, Denroy Gordon v. Jamaica

(views adopted on 5 November 1992, forty-sixth session)

Submitted by: Denroy Gordon (represented by counsel)

Alleged victim: The author

State party: Jamaica

Date of communication: 29 May 1987

Date of decision on admissibility: 24 July 1989

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 5 November 1992,

Having concluded its consideration of communication No. 237/1987,

submitted to the Human Rights Committee by Mr. Denroy Gordon under the

Optional Protocol to the International Covenant on Civil and Political

Rights,

Having taken into account all written information made available to it

by the author of the communication, his counsel and the State party,

Adopts its views under article 5, paragraph 4, of the Optional Protocol.

1.

The author of the communication, dated 29 May 1987, is Denroy Gordon, a

Jamaican citizen, born in 1961, formerly a police officer. At the time of

submission the author was awaiting execution of a death sentence. Following

the commutation of sentence in 1991, the author has been serving a sentence

of life imprisonment at Gun Court Rehabilitation Centre, Jamaica. He claims

to be the victim of a violation by Jamaica of article 14, paragraphs 1 and

3 (b), (d) and (e) of the International Covenant on Civil and Political

Rights. He is represented by counsel.

Facts as submitted

2.1 The author was arrested on 3 October 1981 on suspicion of having

murdered, on the same day, Ernest Millwood. In January 1983, he was put on

trial before the Manchester Circuit Court. As the jury failed to arrive at a

unanimous verdict - 11 jurors were in favour of acquittal, only one supported

a "guilty" verdict - the presiding judge ordered a retrial. In May 1983, at

the conclusion of the retrial before the same court, the author was convicted

of murder and sentenced to death. The Court of Appeal of Jamaica dismissed

his appeal on 22 November 1985 and issued a written judgment in the case on

16 January 1986. A petition for special leave to appeal to the Judicial

Committee of the Privy Council was dismissed on 25 January 1988. On 19

February 1991, the Governor-General of Jamaica commuted the author's death

sentence to life imprisonment.

2.2 The prosecution's case was that for some time there had been friction

between the author and the wife of the deceased, who was employed as a

cleaner at Kendal Police Station in the Manchester District to which the

author was attached as a young police constable. On the day of the crime, he

was on duty and therefore armed with his service revolver. He went up to

Mr. Millwood who was cutting grass with a machete, nearby the police station.

An argument developed between them, following which the author set out to

arrest Mr. Millwood for using indecent language. The latter ran away and the

author followed him trying to effect the arrest. In the course of the chase

the author shot in the air, but Mr. Millwood did not stop. Subsequently the

author caught up with Mr. Millwood, who allegedly chopped at him with the

machete. The author, in what he claims was lawful self-defence, fired a shot

aimed at the left shoulder of the man, so as to disarm him. The shot,

however, proved to be fatal. Immediately thereafter Corporal Afflick arrived

on the scene. The author gave him his service revolver and Mr. Millwood's

machete, explaining that he had pursued Mr. Millwood and warned him to drop

the machete and that he shot Mr. Millwood when he resisted. The author

returned to the police station and was formally arrested several hours later,

after a preliminary investigation had been conducted.

Complaint

3.1 The author claims to be innocent and maintains that he was denied a fair

trial by an independent and impartial tribunal, in violation of article 14,

paragraph 1, of the Covenant. Firstly, he alleges that the members of the

jury at the retrial were biased against him. He indicates that most of them

were chosen from areas close to the community where the crime had occurred

and surmises that, for that reason, they had already formed their opinion in

the case, in particular on hearsay, before the start of the trial. Moreover,

the jurors were allegedly sympathetic to the deceased and his relatives and,

as a result, did not base their verdict on the facts of the case. In this

connection, the author claims that, in spite of numerous requests for a

change of venue on the ground that the jurors had displayed bias against the

author, the Court refused to change the venue.

3.2 Furthermore, it is claimed that the judge abused his discretion in

ruling inadmissible the author's statement to Corporal Afflick immediately

after the shooting. The author contends that the statement was admissible as

part of the res gestae and that it confirmed that his trial defence was not a

later concoction.

3.3 As to the issue of self-defence the author submits that the judge should

have directed the jury that the prosecution had to prove that the violence

used was unlawful and that if the accused honestly believed that the

circumstances warranted the use of force, he should be acquitted of murder,

since the intent to act unlawfully would be negated by his belief, however

mistaken or unreasonable. This the trial judge did not do.

3.4 The author further claims that the trial judge misdirected the jury by

withdrawing from it the issue of manslaughter. According to the author,

although the case was based on self-defence, the jury, if properly directed,

could have arrived at a verdict of manslaughter on the basis of the evidence

of some of the Crown's witnesses. The judge, however, in his summation,

instructed the jury as follows: "I tell you this as a matter of law that

provocation does not apply in this case. I tell you this as a matter of law

again that manslaughter does not arise in this case ... It is my

responsibility to decide what verdicts I leave to you, and I take the

responsibility of telling you that there are only two verdicts open to you on

the evidence: 1. guilty of murder; 2. not guilty of murder, ...". According

to Jamaican law a murder conviction carries a mandatory death sentence.

3.5 In the author's opinion article 14, paragraph 3 (b), of the Covenant was

also violated in his case. While acknowledging that he was assisted by a

lawyer in the preparation of his defence and during the trial, he alleges

that he was not given sufficient time to consult with his lawyer prior to and

during the trial. In this context, the lawyer is further said to have failed

to employ the requisite emphasis in requesting a change of venue.

3.6 The author further alleges a violation of article 14, paragraph 3 (d),

of the Covenant, since he was not present during the hearing of his appeal

before the Jamaican Court of Appeal. In this connection, he claims that the

issue of self-defence on which the case was factually based, was not

adequately dealt with. Moreover, the Court of Appeal allegedly erred in not

admitting into evidence a statement made by police Corporal Afflick.

3.7 Finally, the author submits that he has been a victim of a violation of

article 14, paragraph 3 (e), of the Covenant in that no witnesses allegedly

testified on his behalf, although, he claims, one would have been readily

available. He indicates that the witnesses against him were cross-examined

and that his lawyer sought, on several occasions, to test the credibility of

the Crown's witnesses; in particular, since his trial was actually a retrial,

the lawyer sought to point out contradictions in what the witnesses had

testified during the preliminary inquiry, during the first trial and the

retrial. The trial judge, however, allegedly intervened and instructed the

lawyer to confine his questions to the retrial only.

3.8 In respect of the requirement of exhaustion of domestic remedies, the

author argues that he should be deemed to have complied with this

requirement, since his petition for special leave to appeal to the Judicial

Committee of the Privy Council was dismissed on 25 January 1988. Moreover,

he submits that, taking into account the length of time between the hearings

in his case and the span of time actually spent on death row, the application

of domestic remedies has been "unreasonably prolonged" within the meaning of

article 5, paragraph 2 (b), of the Optional Protocol.

3.9 The author is aware of the possibility of filing a constitutional motion

under Sections 20 and 25 of the Jamaican Constitution, but contends that such

a motion is not an effective remedy available to him, within the meaning of

article 5, paragraph 2 (b), of the Optional Protocol. He argues that because

of his lack of financial means to retain counsel and the unavailability of

legal aid for purposes of filing a constitutional motion before the Supreme

(Constitutional) Court of Jamaica, he is effectively barred from exercising

his constitutional rights.

State party's observations

4.1 The State party contends that the fact that the author's petition for

special leave to appeal to the Judicial Committee of the Privy Council was

dismissed does not necessarily imply that all available domestic remedies

have been exhausted. It argues that the communication remains inadmissible

because of the author's failure to seek redress under Sections 20 and 25 of

the Jamaican Constitution for the alleged violation of his right to a fair

trial.

4.2 In addressing the author's contention that the application of domestic

remedies has been "unreasonably prolonged" within the meaning of article 5,

paragraph 2 (b), of the Optional Protocol, the State party submits that the

delays encountered are partly attributable to the author himself.

4.3 With respect to the substance of the author's allegation that he did not

receive a fair trial, the State party submits that the facts as presented by

the author seek to raise issues of facts and evidence, which the Committee

does not have the competence to evaluate. The State party refers to the

Committee's decision in communication No. 369/1989, in which it had been held

that "while article 14 of the Covenant guarantees the right to a fair trial,

it is for the appellate courts of the States parties to the Covenant to

evaluate facts and evidence in a particular case". a/

Decision on admissibility and review thereof

5.1 On the basis of the information before it, the Human Rights Committee

concluded that the conditions for declaring the communication admissible had

been met, including the requirement of exhaustion of domestic remedies.

Accordingly, on 24 July 1989, the Human Rights Committee declared the

communication admissible.

5.2 The Committee has noted the State party's submissions of 10 January and

4 September 1990, made after the decision on admissibility, in which it

reaffirms its position that the communication is inadmissible on the ground

of non-exhaustion of domestic remedies.

5.3 On 24 July 1991, the Committee adopted an interlocutory decision

requesting the State party to furnish detailed information on the

availability of legal aid or free legal representation for the purpose of

constitutional motions, as well as examples of such cases in which legal aid

may have been granted or free legal representation may have been procured by

the applicant. The State party was further requested to submit to the

Committee written explanations or statements relating to the substance of the

author's allegations.

5.4 On 14 January 1992, the State party reiterates its position that the

communication is inadmissible for non-exhaustion of domestic remedies and

requests the Committee to revise its decision on admissibility. It submits

that there is no provision for legal aid or free legal representation in

constitutional motions. With regard to the Committee's decision that the

communication is admissible in so far as it may raise issues under article 14

of the Covenant, the State party demurs that article 14 has seven paragraphs

and that it is not clear to what particular paragraph the finding of

admissibility relates. "The Committee should indicate the specific

provisions of article 14 or indeed of any of the articles to which its

findings of admissibility relate, and in relation to which, therefore,

Government is being asked to reply; additionally, the Committee must indicate

the allegation made by the applicant which has given rise to the finding of

admissibility in relation to a particular paragraph of article 14 or any

other article. Failure by the Committee to provide this indication will

leave the Government in the dark as to the precise allegation and breach to

which it must respond in commenting on the merits. For it could not be the

case that the Committee expects a reply on each and every allegation made by

the applicant, since some of these are patently unmeritorious."

5.5 With regard to the State party's objection that the Committee's decision

on admissibility was too broad, the Committee notes that the author's

allegations were sufficiently precise and substantiated so as to allow the

State party to address them. As to the merits of the author's allegations,

it is for the Committee to consider them after declaring the communication

admissible, in light of all the information provided by both parties.

5.6 With regard to the State party's arguments on admissibility, especially

in respect of the availability of constitutional remedies which the author

may still pursue, the Committee recalls that the Supreme Court of Jamaica

has, in recent cases, allowed applications for constitutional redress in

respect of breaches of fundamental rights, after the criminal appeals in

these cases had been dismissed.

5.7 However, the Committee notes that by submission of 14 January 1992, the

State party indicated that legal aid is not provided for constitutional

motions; it also recalls that the State party has argued, by submission of

10 October 1991 concerning another case b/ that it has no obligation under

the Covenant to make legal aid available in respect of such motions, as they

do not involve the determination of a criminal charge, as required under

article 14, paragraph 3 (d), of the Covenant. In the view of the Committee,

this supports the finding, made in the decision on admissibility, that a

constitutional motion is not an available remedy for an author who has no

means of his own to pursue it. In this context, the Committee observes that

the author does not claim that he is absolved from pursuing constitutional

remedies because of his indigence; rather it is the State party's

unwillingness or inability to provide legal aid for the purpose that renders

the remedy one that need not be pursued for purposes of the Optional

Protocol.

5.8 The Committee further notes that the author was arrested in 1981, tried

and convicted in 1983, and that his appeal was dismissed in 1985. The

Committee deems that for purposes of article 5, paragraph 2 (b), of the

Optional Protocol, the pursuit of constitutional remedies would, in the

circumstances of the case, entail an unreasonable prolongation of the

application of domestic remedies. Accordingly, there is no reason to revise

the decision on admissibility of 24 July 1989.

Examination of the merits

6.1 In so far as the author's claims under article 14 are concerned, the

Committee notes that the State party has not addressed these allegations.

Article 4, paragraph 2, of the Optional Protocol enjoins a State party to

investigate in good faith all the allegations of violations of the Covenant

made against it and its judicial authorities, and to make available to the

Committee all the information at its disposal. The summary dismissal of the

author's allegations, in general terms, does not meet the requirements of

article 4, paragraph 2. In the circumstances, due weight must be given to

the author's allegations, to the extent that they have been substantiated.

6.2 In respect of the author's claim of a violation of article 14,

paragraph 3 (b) and (d), the Committee notes that the right of an accused

person to have adequate time and facilities for the preparation of his

defence is an important element of the guarantee of a fair trial and a

corollary of the principle of equality of arms. The determination of what

constitutes "adequate time" depends on an assessment of the particular

circumstances of each case. On the basis of the material before it, however,

the Committee cannot conclude that the author's two lawyers were unable to

properly prepare the case for the defence, nor that they displayed lack of

professional judgment or negligence in the conduct of the defence. The

author also claims that he was not present at the hearing of his appeal

before the Court of Appeal. However, the written judgment of the Court of

Appeal reveals that the author was indeed represented before the Court by

three lawyers, and there is no evidence that author's counsel acted

negligently in the conduct of the appeal. The Committee therefore finds no

violation of article 14, paragraph 3 (b) and (d).

6.3 As to the author's allegation that he was unable to have witnesses

testify on his behalf, although one, Corporal Afflick, would have been

readily available, it is to be noted that the Court of Appeal, as is shown in

its written judgment, considered that the trial judge rightly refused to

admit Corporal Afflick's evidence, since it was not part of the res gestae.

The Committee observes that article 14, paragraph 3 (e), does not provide an

unlimited right to obtain the attendance of any witness requested by the

accused or his counsel. It is not apparent from the information before the

Committee that the court's refusal to hear Corporal Afflick was such as to

infringe the equality of arms between the prosecution and the defence. In

the circumstances, the Committee is unable to conclude that article 14,

paragraph 3 (e), has been violated.

6.4 There remains one final issue to be determined by the Committee:

whether the directions to the jury by the trial judge were arbitrary or

manifestly unfair, in violation of article 14, paragraph 1, of the Covenant.

The Committee recalls that the judge denied the jury the possibility to

arrive at a verdict of manslaughter, by instructing it that the issue of

provocation did not arise in the case, thereby only leaving open the verdicts

of "guilty of murder" or "not guilty of murder". It further observes that it

is in general for the courts of States parties to the Covenant to evaluate

facts and evidence in a given case, and for the appellate courts to review

the evaluation of such evidence by the lower courts as well as the

instructions by the jury. It is not in principle for the Committee to review

the evidence and the judge's instructions, unless it is clear that the

instructions were manifestly arbitrary or amounted to a denial of justice, or

that the judge otherwise violated his obligation of impartiality.

6.5 The Committee has carefully examined whether the judge acted arbitrarily

by withdrawing the possibility of a manslaughter verdict from the jury. It

observes that this matter was put before, and dismissed by, the Court of

Appeal of Jamaica. The Court of Appeal, it is true, did not examine the

question of whether a verdict of manslaughter should, as a matter of Jamaican

law, have been left open to the jury. The Committee considers, however, that

it would have been incumbent upon author's counsel to raise this matter on

appeal. In the circumstances, the Committee makes no finding of a violation

of article 14, paragraph 1, of the Covenant.

7.

The Human Rights Committee, acting under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political

Rights, is of the view that the facts before the Committee disclose no

violation of any of the articles of the Covenant.

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

original version.]

Notes

a/

Decision of 8 November 1989 (G. S. v. Jamaica), para. 3.2.

b/

Communication No. 283/1988 (Aston Little v. Jamaica), views adopted

on 1 November 1991.