CCPR/C/46/D/370/1989

Communication No. 370/1989, G. H. v. Jamaica (decision of

23 October 1992, adopted at the forty-sixth session)

Submitted by:

G. H. (name deleted)

Alleged victim:

The author

State party:

Jamaica

Date of communication: 30 June 1989 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 23 October 1992,

Adopts the following:

Decision on admissibility

1.

The author of the communication is G. H., a Jamaican citizen currently

awaiting execution at St. Catherine District Prison, Jamaica. He claims to

be a victim of violations by Jamaica of articles 6, 7 and 14 of the

International Covenant on Civil and Political Rights. He is represented by

counsel.

Facts as submitted

2.1 The author was arrested in August 1982 and charged with the murder, on

5 August 1982, of one C. S. He was tried jointly with his brother in the

St. James Circuit Court, Montego Bay, and convicted and sentenced to death on

3 February 1984; his brother, a minor at the time of the offence, was

sentenced to life imprisonment. The Court of Appeal of Jamaica dismissed the

author's appeal on 10 April 1987. A subsequent petition for special leave to

appeal to the Judicial Committee of the Privy Council was dismissed on 16

March 1989.

2.2 C. S. was shot dead with two or three bullets fired from a 0.38 calibre

weapon in the evening of 5 August 1982 and found near the Camrose main road.

The prosecution contended that the author, his brother, one D. S. and another

individual had been walking along that road on the evening in question.

D. S. left the others temporarily and, after approximately five to seven

minutes, heard two explosions. A few minutes afterwards, the author and his

brother caught up with him; they told him that they, too, had heard the

explosions but that they ignored what had caused them. G. H. testified that

he had been walking with D. S. along the main road all along and that, when

hearing the explosions, they had all run away.

2.3 During the trial, several witnesses testified that they had seen the

author and his brother on the main road in the evening of 5 August. One W.

B. testified that he had seen G. H. standing by the body, adding that the

author had shown him a 0.38 calibre gun with live cartridges on 2 August

1982. V. B., the sister of W. B., testified that the author had been engaged

in a dispute with the deceased on 1 August 1982, and that the deceased had

attacked the author with a machete on that occasion.

2.4 The author claims that the B. family had every reason to exaggerate or

to commit perjury in court, because of a long-standing feud with his family.

He notes that W. B. had omitted any mention of the incident of 2 August 1982

in his witness statement and initial written deposition, and that the judge

himself called the evidence of V. B. "confused".

2.5 The author further points out that there was severe conflict over

important questions of timing. Thus, D. S. and another witness testified

that the events occurred shortly after 7:15 p.m.; W. B., who did not hear any

explosions, allegedly saw the author by the body just after 8:30 p.m., with

several people following him. There also was no evidence that the author had

been carrying a gun on the evening in question. The principal issue in the

case therefore was one of reliability of the evidence.

Complaint

3.1 The author complains that he did not have a fair trial, because the

trial judge misdirected it on the issue of circumstantial evidence, in that

he failed to warn the jurors that circumstantial evidence should always be

construed narrowly and rigorously, and in that he suggested that

circumstantial evidence was "free from the blemishes" of evidence by

witnesses who are either mistaken or influenced by grudge or spite. In the

author's opinion, the Court of Appeal was equally wrong in holding that the

trial judge properly directed the jury on the issue of circumstantial

evidence.

3.2 The author further submits that the judge misdirected the jury on the

law of aiding and abetting, since he put his directions in such a way that

the jury could have been left with the erroneous impression that if the

author had been present and watched the shooting, without any intent of

encouraging it, he was guilty of murder. In this context, it is noted that

the judge told the jury that "the mere presence of those watching the

spectacle, if unexplained ... is some evidence of encouragement to those

engaged in the combat or the attack".

3.3 Finally, it is claimed that the judge unfairly pressured the jury to

return an early verdict: thus, he only began his summing-up in

mid-afternoon, at 3:49 p.m., and sent the jury to the verdict room at 6:38

p.m., in the hope that the trial could end the same day.

Issues and proceedings before the Committee

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

Rights 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.

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

Committee observes that the author's allegations relate primarily to the

conduct of the trial by the judge, the evaluation of evidence by the court,

and the judge's instructions to the jury. It recalls that it is generally

for the appellate courts of States parties to the Covenant 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 is clear that the instructions to the jury were

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 the 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, this part of the

communication is inadmissible under article 3 of the Optional Protocol.

4.3 In respect of the author's claims under articles 6 and 7, the Committee

finds that they have not been substantiated, for purposes of admissibility;

in this respect, accordingly, the author has failed to advance a claim under

the Covenant, within the meaning of article 2 of the Optional Protocol.

5.

The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under articles 2 and 3 of

the Optional Protocol;

(b) That this communication 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.]