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BEFORE: |
CHAIRMAN: Mr. Rajsoomer Lallah (Mauritius)
VICE-CHAIRMEN: Mr. Joseph A. L. Cooray (Sri Lanka), Mr. Vojin
Dimitrijevic (Yugoslavia), Mr. Alejandro Serrano Caldera (Nicaragua)
RAPPORTEUR: Mr. Fausto Pocar (Italy)
MEMBERS: Mr. Francisco Jose Aguilar Urbina (Costa Rica), Mr. Nisuke
Ando (Japan), Miss Christine Chanet (France), Mr. Omran El Shafei (Egypt),
Mr. Janos Fodor Hungary, Mrs. Rosalyn Higgins (United Kingdom), Mr.
Andreas V. Mavrommatis (Cyprus), Mr. Joseph A. Mommersteeg (Netherlands),
Mr. Rein A. Myullerson (Union of Soviet Socialist Republics), Mr.
Birame Ndiaye (Senegal), Mr. Julio Prado Vallejo (Ecuador), Mr. S.
Amos Wako (Kenya), Mr. Bertill Wennergren (Sweden).
The thirty-seventh session of the
Committee was attended by all members of the Committee except Messrs.
Aguilar Urbina and Serrano Caldera; Mr. Mavrommatis attended only
part of the session. |
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/1989.10.30_CG_v_Jamaica.htm |
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Citation: |
C. G. v. Jam., Comm. 281/1988, U.N.
Doc. A/45/40, Vol. II, at 169 (HRC 1989) |
Publications: |
Report of the Human Rights
Committee, U.N. GAOR, 45th Sess., Supp. No. 40, U.N. Doc. A/45/40,
Annex X, sect. L, at 169 (Oct. 4, 1990) |
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DECISION ON ADMISSIBILITY
1. The author of the communication (initial submission dated 10 February
1988 and subsequent correspondence) is C. G., a Jamaican citizen currently
awaiting execution at St. Catherine District Prison, Jamaica. He is
represented by counsel.
2.1 The author was arrested on 7 April 1984 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 appeal). The Court of Appeal of Jamaica dismissed his appeal on
28 July 1987.
2.2 As to the facts of the case, [FNa] it is submitted that the author broke
into Mr. I.'s house at dawn, together with three other men, allegedly with
the intention of stealing money. Mr. I. and his family (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
conducted 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
failed to identify him.
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[FNa] The 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.
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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 transmitted 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 communication. It further requested
the State party, under rule 86 of the rules of procedure, not to carry out
the death sentence against the author while his communication was under
consideration by the Committee.
4. In his submission under rule 91, dated 25 October 1988, the State party
argues that the communication is inadmissible pursuant to article 5,
paragraph 2(b), of the Optional Protocol because the author may still apply
for special leave to appeal to the Judicial Committee of the Privy Council.
It further submits that legal aid will be available for that purpose.
5. 5. In his comments, dated 28 December 1988, author's counsel argues that
the sole issue in the case relates to the treatment of identification
evidence. He challenges the author's identification by the deceased's
daughter and reiterates that the deceased's widow did not identify the
author. While conceding that the case does not fall into the category of
"fleeting glance identification", counsel contends that the nature of the
identification by the deceased's daughter 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 identification guidelines laid down by the Court of
Appeal of England in the case of R. v. Turnbull (1976) [FNb] and that, as a
result, he misdirected the jury on several relevant issues. In particular,
the judge is said to have failed to warn the jury that a 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 he inadequately directed the jury in
relation to identification on the conditions prevailing during the robbery
in the middle 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.
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[FNb] 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 his 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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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,
decide 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
examined under another procedure of international investigation or
settlement.
6.3 With respect to the requirement of exhaustion of domestic remedies, 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 has obtained legal representation for
this purpose, and that his counsel in London is currently preparing a
petition fur special leave to appeal to the Judicial Committee of the Privy
Council on his behalf. It cannot conclude, on the basis of the information
before it, that a petition for special 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 2(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;
(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. |
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