Decision on merits; Substantive issues: accused persons / convicted persons defence, adequate time and facilities fair trial fair trial - undue delay right to appeal; Articles: 6 (2) 14 (1) 14 (3) (b) 14 (3) (c) 14 (5); Procedural issues: exhaustion of domestic remedies; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
Communication No. 282/1988, Leaford Smith v. Jamaica
(views adopted on 31 March 1993, forty-seventh session)*
Submitted by:
Leaford Smith
(represented by counsel)
Alleged victim:
The author
State party:
Jamaica
Date of communication:
15 February 1988
(initial submission)
Date of decision on admissibility: 17 October 1989
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 31 March 1993,
Having concluded its consideration of communication No. 282/1988,
submitted to the Human Rights Committee by Mr. Leaford Smith 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 is Leaford Smith, a Jamaican citizen
awaiting execution at St. Catherine District Prison, Jamaica. He claims to
be the victim of violations of his human rights by Jamaica.
Facts as submitted
2.1 The author was arrested on 27 October 1980 and charged with the murder,
on 26 October 1980 in the Parish of St. James, of one Errol McGhie. On
26 January 1982, he was convicted and sentenced to death in the St. James
Circuit Court. The Jamaican Court of Appeal dismissed his appeal on
24 September 1984. A subsequent petition for special leave to appeal to the
Judicial Committee of the Privy Council was dismissed in February 1987, on
the ground that there was no written judgement of the Jamaican Court of
Appeal. A second petition for special leave to appeal was prepared and filed
by the author's pro bono representative in London; this was dismissed on
15 December 1987 on unspecified grounds.
*
Pursuant to rule 85 of the Committee's rules of procedure,
Committee member Mr. Laurel Francis did not take part in the adoption of the
Committee's views.
2.2 At the trial, the brother of the deceased, Owen McGhie, testified that
on the evening of 26 October 1980, he, the deceased and three other men were
talking on the main road when the author came out of a field with a sawn-off
shotgun and fired a shot into the group. The prosecution further relied on
sworn evidence given during the preliminary inquiry, held between 16 January
and 26 March 1981, by another brother of the deceased, Merrick McGhie, and by
one Ephel Williams. Neither witness was present at the trial.
2.3 The author gave a sworn statement from the dock, testifying that the
deceased and others, including Owen McGhie, had lain in wait for him with the
gun because they suspected him of having warned a group of "labourites"
(supporters of the Jamaican Labour Party) about a plan to attack them. The
author further claimed that one Lloyd Smart had aimed the gun at him and that
it had gone off accidentally, killing Errol McGhie, as he, Leaford Smith,
tried to knock it out of Lloyd Smart's hand.
2.4 According to the author, the prosecution's evidence, according to which
the fatal shot was fired from a distance of about 5 metres, was at odds with
the medical evidence, which estimated that the fatal shot was fired from a
distance of no more than two feet. Besides, the author states, a shot fired
from a 24-inch sawn-off shotgun into a gathering of people would have
certainly resulted in the death or injury of more than one individual.
2.5 As to the appeal, the author indicates that the Court of Appeal only
gave an oral judgement; he was subsequently informed by the Jamaica Council
for Human Rights that no written judgement was to be expected.
2.6 On 17 November 1987, a warrant was issued for the execution of the
author on 24 November 1987. A request for stay of execution was submitted by
the author's counsel to the Governor-General of Jamaica, on the ground that
new evidence had been obtained, which would justify a re-trial. Excerpts of
counsel's petition read as follows:
"... I have had an opportunity to read the Affidavit of Ephel Williams
and having regard to all the circumstances surrounding this case, it
would appear that his disclosures as to what really transpired on the
night of 26 October 1980, would, at the very least, influence Your
Excellency in Council to grant a stay of execution so that these said
disclosures may be carefully and diligently investigated and studied.
"The evidence given by the investigating officer at page 40 of the trial
transcript disclosed that, when Leaford Smith was cautioned at the
Montego Bay Police Station, he stated: 'Me never mean to shoot him'.
At page 41 and 46, this statement is repeated to the same effect.
"This development would have attracted a verdict of manslaughter if the
truth had been uncovered then ...
"One has to bear in mind that at that time the unlawful possession of a
firearm attracted a mandatory sentence of life imprisonment, hence the
basis to fabricate and implicate each other, not being unmindful of the
more serious charge of murder.
"While the Crown is not saddled with the burden of establishing
'motive', and no motive was established in this case, the Crown
witnesses stated that there was a good relationship between Mr. Smith
and Mr. Errol McGhie ...
"This fact would further underscore the credible nature of
Ephel William's affidavit which is further buttressed by the
pathologist's evidence in which he stated that Errol McGhie was shot
within a distance of two feet as contrasted with the Crown's version of
eighteen feet ...".
2.7 The stay of execution was granted; pursuant to Section 29,
paragraph 1 (a), of the Judicature (Appellate Jurisdiction) Act, the
Governor-General referred the case back to the Court of Appeal for review. a/
Subsequently, the Court of Appeal granted leave to adduce new evidence in the
case and a hearing was set for 29 February 1988; the hearing was postponed,
reportedly on the ground that some of the relevant documents could not be
located.
2.8 Under cover of a letter dated 10 January 1989, the author forwards a
letter from his counsel which indicates that, on 5 December 1988, the Court
of Appeal rejected the new evidence. Three affidavits were presented to the
Court, all of which contradicted the evidence presented by the prosecution
and the defence during the author's trial. Thus, the affidavits filed by
Merrick McGhie and by Ephel Williams contradicted their own sworn evidence in
support of the prosecution's case. Neither Mr. McGhie nor Mr. Williams can
be located by the authorities. The third affidavit, by one Angela Robinson,
contradicts in part the author's evidence. Although this witness was present
in court on 5 December 1988, the judges declined to hear her, holding that
the affidavits did not satisfy the test for the admissibility of fresh
evidence. b/
2.9 The authors of the above-mentioned affidavits deny that Mr. Smith had
emerged from the yamfield and fired into a group of people including the
deceased. The affidavit of Merrick McGhie, dated 1 December 1987, states, in
particular, "[t]hat any story about the killing of my brother that suggests
that he was shot at deliberately is not true ... The insistence of my
brother Owen that Leaford Smith shot my brother Errol intentionally was done
only out of a desire to avoid implicating himself in the offence of unlawful
possession of a firearm".
2.10 Ephel Williams, in his affidavit dated 8 August 1984, states: "The
first time that I was called to give evidence at the Gun Court, I ... did not
attend. On the second occasion, I was served a subpoena. I did not go to
give evidence at the trial because I could not continue to be part of the
plot to blame Leaford Smith for shooting Errol ... and I also feared, on good
grounds, that if I attended court and told the truth, all Errol's relatives,
especially Owen McGhie, would hurt me badly. ... That Owen, Merrick, Errol,
Leaford, Junior James and I have lived fairly close to one another as we
stand for and support socialism as a political belief and out of loyalty to
them, but more so out of fear of reprisal I went along with that story and
this is the reason why I previously told an untrue story. That neither Owen
nor Leaford told the truth to the court. The gun went off when it was being
passed from Leaford Smith to Owen McGhie who wanted to look at it".
Complaint
3.1 The author alleges that his trial was unfair. He contends that he had
inadequate time to prepare his defence. He submits that he could only
consult with his lawyer on the opening day of the trial. Furthermore, he was
informed that one of the jurors was seen at the home of the deceased the
night before the start of the trial. The judge, apparently, did not
investigate the matter. In this context, he points out that although his
trial lasted two days, it took the jury less than 20 minutes to return their
verdict. The author further complains that the trial judge did not address
the discrepancy between the evidence of the main witness for the prosecution
and that of the pathologist. It is submitted that, although there were at
least five potential witnesses to the shooting, only two were summoned to the
trial, of whom only Owen McGhie said he had seen the actual shot being fired.
3.2 As to the appeal, the author submits that although the Jamaican Court of
Appeal is not bound by law to produce a written judgement, it ought to do so
in the interest of justice, especially in capital cases. He further claims
that the absence of a written judgement deprived him of an effective appeal
to the Judicial Committee of the Privy Council, since that body dismissed his
petition on the ground that the merits of an appeal against conviction could
not be considered.
State party's observations on admissibility
4.
In its submission, dated 7 December 1988, the State party contends that
the communication is inadmissible on the ground of non-exhaustion of domestic
remedies, as required by article 5, paragraph 2 (b), of the Optional
Protocol, without providing further explanations.
Committee's decision on admissibility
5.
On 17 October 1989, the Committee declared the communication admissible
in respect of article 14 of the Covenant. It noted the State party's
contention that the communication was inadmissible because of non-exhaustion
of domestic remedies, and observed that the Judicial Committee of the Privy
Council had dismissed the author's petition for special leave to appeal on
two occasions, and that the Court of Appeal rejected the author's application
to review his case on the ground that the evidence adduced was inadmissible.
In the circumstances, the Committee found that there were no further
effective remedies for the author to exhaust.
Review of the decision on admissibility
6.1 By further submission of 7 January 1991, the State party reiterates that
the communication is inadmissible because of non-exhaustion of domestic
remedies. In respect of the alleged violations of article 14, it submits
that the author can file for constitutional redress under Section 25 of the
Jamaican Constitution, for violations of his rights protected by Section 20.
6.2 In reply to the State party's submission, counsel submits that a
constitutional motion in the Supreme Court of Jamaica would inevitably fail,
in the light of the precedent set by the Judicial Committee of the Privy
Council's decisions in DPP v. Nasralla [(1967) 2 AER 161] and Noel Riley et
al. v. Attorney-General [(1982) 3 AER 469], where it was held that the
Jamaican Constitution was intended to prevent the enactment of unjust laws
and not merely unjust treatment under the law. Since the author alleges
unfair treatment under the law, and not that post-constitutional laws are
unconstitutional, the constitutional remedy is not available to him.
6.3 Besides, counsel submits, if the State party were correct in asserting
that a constitutional remedy was indeed available, at least in theory, it
would not be available to the author in practice because of his lack of
financial means and the unavailability of legal aid. Counsel affirms that it
is extremely difficult to find a lawyer in Jamaica who is willing to
represent applicants for purposes of a constitutional motion on a pro bono
basis. Therefore, counsel concludes, it is the State party's inability or
unwillingness to provide legal aid for such motions which absolved Mr. Smith
from pursuing constitutional remedies.
7.1 The Committee has taken note of the State party's arguments on
admissibility formulated after the Committee's decision declaring the
communication admissible, especially in respect of the availability of
constitutional remedies which the author may still pursue. It 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.
7.2 However, the Committee also recalls that by submission of 10 October
1991 concerning another case, c/ the State party indicated that legal aid is
not provided for constitutional motions, and 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. Accordingly, there is no reason to revise the decision on
admissibility of 15 March 1990.
7.3 Furthermore, bearing in mind that the author was arrested in October
1980, convicted in January 1982, that his appeal was dismissed in October
1984 by the Court of Appeal and his petitions for special leave to appeal in
1987 by the Judicial Committee, and that furthermore the Court of Appeal of
Jamaica rejected the author's application to review his case in December
1988, the Committee also finds that recourse to the Supreme (Constitutional)
Court would entail an unreasonable prolongation of the application of
domestic remedies which, together with the absence of legal aid, cannot be
required of the author under article 5, paragraph 2 (b), of the Optional
Protocol. There is, accordingly, no reason to reverse the decision on
admissibility of 17 October 1989.
Examination of the merits
8.
The State party contends that, as the author's claim of unfair trial is
based on the contradictory nature of the evidence produced during the trial,
it essentially raises issues of facts and evidence which the Committee is not
competent to evaluate. In this connection, the State party refers to the
Committee's jurisprudence.
9.1 Counsel submits that, prior to the trial, Mr. Smith had no opportunity
to consult his legal representatives about the preparation of the defence.
He only had a brief interview with his counsel, during a brief postponement
on the first morning of the trial. It is submitted that the inadequate time
the author had for the preparation of the defence amounts to a violation of
article 14, paragraph 3 (b), of the Covenant.
9.2 Counsel further submits that, as a result of the author's inability to
consult with his legal representatives, a number of key witnesses for the
defence were not traced or called to the trial, constituting a violation of
article 14, paragraph 3 (e), of the Covenant. Thus:
(a) According to Owen McGhie, the principal witness for the
prosecution, five men were present at the time of the shooting. Of the four
potential prosecution witnesses only Owen McGhie and one Junior James were
called. Only Owen McGhie said that he saw the actual shot fired; Junior
James gave circumstantial evidence. Neither Ephel Williams nor Merrick
McGhie were called to give evidence at the trial; although both had made
statements at the preliminary inquiry, L. B., the police officer in charge of
the inquiry, denied at the trial that he had been able to contact either man.
The affidavits of the two men indicate that, had they been available for
examination and cross-examination at the trial, their evidence could have
been crucial;
(b) Owen McGhie suggested that one F. was present at the locus in quo,
and L. B. testified at the trial that F. had been arrested and charged in the
case, but was subsequently acquitted. It is submitted that the defence had
no opportunity to interview F., or to call him as a witness, due to lack of
time for the preparation of the defence;
(c) The author maintained throughout his trial that, the day after the
shooting, he went to the Spring Mount police station together with one F. W.
in order to make a statement about what had happened. However, the officer
on duty refused to take the statement, saying that he had already heard that
he, Leaford Smith, had shot the deceased. He was then taken into custody.
On 28 October 1980, he saw L. B. at the police station, giving the
above-mentioned officer an order to transfer him to the Montego Bay police
station. L. B., however, initially testified that he had first seen Mr.
Smith, on 10 November 1980, at the Montego Bay police station, when the
latter was charged with the murder of Errol McGhie; under cross-examination,
L. B. later admitted that he had seen Mr. Smith some time earlier, at the
Spring Mount police station. It is submitted that this important discrepancy
was not effectively pursued by the defence at the trial. Furthermore,
counsel submits that, due to the inadequate time available for the
preparation of the defence, no investigations were carried out in respect of
the author's claims, and that neither F. W. nor the officer involved was
called to give evidence;
(d) The author further contended that F. was not present at the locus
in quo; he claimed that Lloyd Smart was present and that he was detained but
later released. Under cross-examination, Owen McGhie admitted that Lloyd
Smart was detained in connection with the shooting; L. B., however, denied
that he had ever been held. According to counsel, this was an important
conflict of evidence, tending to cast further doubt on the honesty of L. B;
yet the relevant police custody records were not checked by the defence due
to inadequate time for the preparation of the case.
9.3 Counsel notes that the author was only tried 14 months after he was
arrested. In particular, there was a delay of 10 months after the
preliminary inquiry was closed; during this time, the author had no legal
assistance, but since he was kept in police custody, he was unable to carry
out his own investigations in order to prepare his defence.
9.4 Counsel further notes that it took another 32 months before the appeal
was heard and dismissed, and that to date no written judgement has been
issued by the Court of Appeal. In this context, counsel submits a letter,
dated 20 June 1986, from the Registrar of the Court of Appeal indicating that
no written judgement was to be expected in the author's case. The failure of
the Court of Appeal to issue a written judgement within a reasonable time is
said to amount to a violation of article 14, paragraphs 3 (c) and 5, of the
Covenant, as it deprived the author of an effective appeal to the Judicial
Committee of the Privy Council. Counsel points out that under rule 4 of the
Privy Council rules, a reasoned judgement of the Court of Appeal is required
if the Judicial Committee is to entertain an appeal. As to the further
appeal hearing on 5 December 1988, counsel affirms that the author's
representative was assured that the Court of Appeal would put its reasons in
writing at a later date, but that no such document has been produced some
four years later. Thus, it is submitted, the author is again prevented from
effectively petitioning the Judicial Committee of the Privy Council, contrary
to article 14, paragraphs 3 (c) and 5.
9.5 Finally, with reference to the Committee's jurisprudence, counsel
submits that the imposition of a sentence of death upon the conclusion of a
trial in which the provisions of the Covenant have not been respected
constitutes, if no further appeal against the sentence is available, a
violation of article 6 of the Covenant. As there are no further remedies
available to the author, and the final sentence of death was passed after a
trial that did not meet the requirements of the Covenant, article 6 of the
Covenant is said to be violated in the author's case.
10.1 As to the substance of Mr. Smith's allegations, the Committee notes
with concern that the State party has confined itself to the observation that
the facts relied upon by the author seek to raise issues of facts and
evidence that the Committee is not competent to evaluate. The State party
has not addressed any of the author's specific allegations concerning
violations of fair trial guarantees. 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 Committee is of the opinion that the summary dismissal of
the author's allegations, as in the present case, 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.
10.2 The Committee does not accept the State party's contention that the
communication merely seeks to raise issues of facts and evidence. The
communication raises other issues concerning the law and practice of Jamaica
in regard to capital cases which require examination on the merits. The
Committee reaffirms its jurisprudence that it is in principle for the courts
of States parties to the Covenant to evaluate facts and evidence in a
particular case or to review specific instructions to the jury by the judge,
unless it can be ascertained that the instructions to the jury or the judge's
conduct of the trial are clearly arbitrary or amount to a denial of justice.
Having reviewed the trial transcript, the Committee notes that the medical
evidence strongly suggested that the deceased was shot from a very close
range. This medical evidence was brought to the attention of the jury by the
judge, and the jury chose not to take this evidence into account. The
Committee therefore does not consider that the guarantees of a fair trial
were violated in this regard.
10.3 In respect of the author's claim that the jury, or one of its members,
was biased, the Committee notes that this issue has not been further
substantiated and therefore does not reveal a violation of article 14 of the
Covenant.
10.4 As to the author's claims that he was not allowed adequate time to
prepare his defence and that, as a result, a number of key witnesses for the
defence were not traced or called to give evidence, the Committee recalls its
previous jurisprudence 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 an emanation of the principle of
equality of arms. d/ The determination of what constitutes "adequate time"
requires an assessment of the circumstances of each case. In the instant
case, it is uncontested that the trial defence was prepared on the first day
of the trial. The material before the Committee reveals that one of the
court-appointed lawyers requested another lawyer to replace him.
Furthermore, another attorney assigned to represent the author withdrew the
day prior to the trial; when the trial was about to begin at 10 a.m., the
author's counsel asked for a postponement until 2 p.m., so as to enable him
to secure professional assistance and to meet with his client, as he had not
been allowed by the prison authorities to visit him late at night the day
before. The Committee notes that the request was granted by the judge, who
was intent on absorbing the backlog on the court's agenda. Thus, after the
jury was empanelled, counsel had only four hours to seek an assistant and to
communicate with the author, which he could only do in a perfunctory manner.
This, in the Committee's opinion, is insufficient to prepare adequately the
defence in a capital case. There is also, on the basis of the information
available, the indication that this affected counsel's possibility of
determining which witnesses to call. In the Committee's opinion, this
constitutes a violation of article 14, paragraph 3 (b), of the Covenant.
10.5 It remains for the Committee to decide whether the failure of the Court
of Appeal to issue a reasoned judgement violated any of the author's rights
under the Covenant. Article 14, paragraph 5, of the Covenant guarantees the
right of convicted persons to have the conviction and sentence reviewed "by a
higher tribunal according to law". e/ For the effective exercise of this
right, a convicted person must have the opportunity to obtain, within a
reasonable time, access to duly reasoned judgements, for every available
instance of appeal. The Committee observes that the Judicial Committee of
the Privy Council dismissed the author's first petition for special leave to
appeal because of the absence of a written judgement of the Jamaican Court of
Appeal. It further observes that over four years after the dismissal of the
author's appeal in September 1984 and his petitions for leave to appeal by
the Judicial Committee in February and December 1987, no reasoned judgement
had been issued, which once more deprived the author of the possibility to
effectively petition the Judicial Committee. The Committee therefore finds
that Mr. Smith's rights under article 14, paragraph 3 (c) and article 14,
paragraph 5, of the Covenant, have been violated.
10.6 The Committee is of the opinion that the imposition of a sentence of
death upon conclusion of a trial in which the provisions of the Covenant have
not been respected, and which could no longer be remedied by appeal,
constitutes a violation of article 6 of the Covenant. As the Committee noted
in its General Comment 6 (16), the provision that a sentence of death may be
imposed only in accordance with the law and not contrary to the provisions of
the Covenant implies that "the procedural guarantees therein prescribed must
be observed, including the right to a fair hearing by an independent
tribunal, the presumption of innocence, the minimum guarantees for the
defence, and the right to review [of conviction and sentence] by a higher
tribunal". f/ In the instant case, since the final sentence of death was
passed without having met the requirements for a fair trial set out in
article 14, it must be concluded that the right protected by article 6 of the
Covenant has been violated.
11. 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
violations of article 14, paragraphs 3 (b) and (c), the latter in conjunction
with paragraph 5, and consequently of article 6 of the Covenant.
12. In capital punishment cases, the obligation of States parties to observe
rigorously all the guarantees for a fair trial set out in article 14 of the
Covenant admits of no exception. The Committee is of the view that
Mr. Leaford Smith, a victim of violations of article 14 and consequently of
article 6, is entitled, according to article 2, paragraph 3 (a), of the
Covenant to an effective remedy, in this case entailing his release.
13. The Committee would wish to receive information, within 90 days, on any
relevant measures taken by the State party in respect of the Committee's
views.
[Done in English, French and Spanish, the English text being the original
version.]
Notes
a/
Section 29, paragraph 1 (a), of the Judicature (Appellate
Jurisdiction) Act, states: "The Governor-General ... may, if he thinks fit
at any time, refer the whole case to the Court and the case shall then be
heard and determined by the Court as in the case of an appeal by a person
convicted".
b/
The Court of Appeal allows fresh evidence to be adduced if the
evidence is relevant, credible and was not available at the trial. It would
appear that the Court of Appeal was not satisfied with the credibility of the
affidavits of Ephel Williams and Merrick McGhie, as they contradicted their
sworn testimony at the preliminary inquiry: Ms. Robinson's evidence would
appear to have been excluded on the ground that she had not seen what
actually transpired at the locus in quo. This is all hypothetical, however,
as the Court of Appeal has not issued in writing its reasons for rejecting
the new evidence, although the Court stated at the hearing that it would do
so.
c/
Communication No. 283/1988 (Aston Little v. Jamaica), views adopted
on 1 November 1991.
d/
See communications Nos. 253/1987 (Paul Kelly v. Jamaica), views
adopted on 8 April 1991, para. 5.9; and 283/1988 (Aston Little v. Jamaica),
views adopted on 1 November 1991, para. 8.3.
e/
See communication No. 230/1987 (R. Henry v. Jamaica), views adopted
on 1 November 1991, para. 8.4.
f/
See CCPR/C/21/Rev.1, General Comment 6 [16], para. 7.