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1. The author of the
communication is Devon Allen, a Jamaican citizen born in 1962, currently
awaiting execution at St. Catherine District Prison, Jamaica. He claims to
be a victim of violations by Jamaica of articles 6, paragraph 5, 7, 9,
paragraphs 2 and 3, 10, and 14, paragraphs 3 (b), (c), (d) and (e) of the
International Covenant on Civil and Political Rights. He is represented by
counsel. The crime of which the author was convicted has been classified as
a capital offence under the Offences Against the Person (Amendment) Act
1992.
The facts as submitted by the author
2.1 Devon Allen was arrested on 18 August 1982, while he was in hospital
recovering from injuries sustained in a shooting incident. He was charged
with the murder, on 26 September 1980, i.e., nearly two years earlier, of
one W. H. He was tried in the Home Circuit Court of Kingston between 10 and
17 May 1983, found guilty as charged and sentenced to death. On 10 November
1983, the Court of Appeal of Jamaica dismissed his appeal. The Court of
Appeal did not issue a reasoned judgement but merely a "Note of Oral
Judgement", also dated 10 November 1983. A further application for special
leave to appeal to the Judicial Committee of the Privy Council has not been
filed.
2.2 The evidence presented against Mr. Allen was that on 26 September 1980
at about 1.30 a.m., two men went to W. H.'s house in Kingston, climbed onto
a roof, jumped into the yard and approached the room where W. H. was
sleeping. The wife of W. H. testified that one of the men shot her husband
through the half-open window; both men then broke into the house, took the
television set and ran off. This was reported to the police the following
morning.
2.3 During the trial, W. H.'s wife and her son, who was eight years old when
the crime was committed, testified as the prosecution's principal witnesses.
Both identified the author as the man who had shot W. H. Mrs. H. testified
that she had known the author for several years, but under his nickname
"Dap-si-Do" only. She further contended that eight days after the crime, the
author had returned to her house and that, subsequently, she had
occasionally seen him walking around the area.
2.4 The author denied responsibility for the shooting of W. H., claiming
that he was not in the neighbourhood on the night in question and that his
nickname was not "Dap-si-Do" but "Windward". He notes that the arresting
officer at the hospital asked him whether he was "George Green, known as
Dap-si-Do". Counsel further encloses an affidavit signed in May 1988 by the
author's brother, Steve Allen, in which he indicates that in his presence
and that of a person investigating the circumstances of W. H.'s death, one
B. N. admitted having shot W. H. on the night in question. This was brought
to the attention of the Attorney-General's Office, but the case was not
reopened, as B. N. had gone into hiding and could no longer be located by
the police.
2.5 In respect of the requirement of exhaustion of domestic remedies,
counsel contends that delays encountered in the case justify the conclusion
that domestic remedies have been "unreasonably prolonged" within the meaning
of article 5, paragraph 2 (b), of the Optional Protocol. He contends that a
petition for special leave to appeal to the Judicial Committee of the Privy
Council based on the issue of delay would inevitably fail, because of the
similarities between the author's case and that of another Jamaican citizen,
Howard Martin, whose petition was dismissed by the Privy Council on 11 July
1988. [FN1] Besides, leading counsel has advised that there are no proper
grounds to argue a petition for special leave to appeal to the Judicial
Committee.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
On 24 March 1993, the Human Rights Committee adopted its views in respect of
Mr. Martin's communication, finding no violations of the Covenant (see
Official Records of the General Assembly, Forty-eighth Session, Supplement
No. 40 (A/48/40), annex XII.J. Although the Judicial Committee of the Privy
Council also dismissed Mr. Martin's petition, it expressed concern about the
judicial delays encountered in the case.
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2.6 Still in the context of domestic remedies, counsel refers to the Privy
Council's jurisprudence (judgement in the case of Riley et al. v.
Attorney-General of Jamaica), which holds that whatever the reasons for, or
length of, delays in executing a sentence of death lawfully imposed, such
delays can afford no ground for holding the execution to be in contravention
of section 17 of the Jamaican Constitution. He observes that the Court of
Appeal and the Supreme Constitutional Court of Jamaica would consider
themselves to be bound by this jurisprudence, and that no decision in the
case could be taken unless and until an appeal to the Judicial Committee of
the Privy Council were allowed or made. According to counsel, the pursuit of
remedies under the Jamaican Constitution and thereafter to the Judicial
Committee would take many years.
The complaint
3.1 The author contends that he did not receive a fair and impartial trial.
Thus, in relation to article 14, paragraph 3 (e), the trial transcript
reveals that no witnesses were called on his behalf and no evidence was
adduced against his claim that he was not known by the nickname "Dap-si-Do"
but instead "Windward". Nor was there any evidence to rebut his statement
that from 26 September 1980 until his arrest nearly two years later, he
remained in the area working as a barman, without ever being questioned
about W. H.'s death. Without further elaborating on his claim under article
14, paragraphs 3 (b) and (d), he submits that legal assistance available to
individuals charged with criminal offences in Jamaica is such that witnesses
are rarely traced and expert witnesses are hardly ever subpoenaed.
3.2 The author further alleges a violation of article 14, paragraph 3 (c)
(and subsidiarily of article 9, paras. 2 and 3) because of the judicial and
administrative delays in the case, and argues that a delay of five years
[FN2] in the execution of the sentence constitutes "cruel and inhuman
treatment" in violation of article 7 of the Covenant.
-------------------------------------------------------------------------------------------------------------------------------[FN2]
That is, at the time of submission of the communication (October 1988).
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3.3 Finally, counsel argues that the State party may have violated article
6, paragraph 5, of the Covenant, since the author testified, during the
trial in May 1983, that he was 20 years old. Accordingly, it may be that he
was under the age of 18 when the offence was committed.
The State party's information and observations
4. In its submissions under rule 91 of the rules of procedure, the State
party contended that the communication was inadmissible because of
non-exhaustion of domestic remedies, since the author had failed to petition
the Judicial Committee of the Privy Council for special leave to appeal,
pursuant to section 110 of the Jamaican Constitution.
The Committee's decision on admissibility
5.1 During its 44th session, the Committee considered the admissibility of
the communication. With respect to the requirement of exhaustion of domestic
remedies, it noted that the Court of Appeal of Jamaica had not issued a
reasoned judgement in the case but confined itself to delivering a "Note of
Oral Judgement". While taking note of the State party's contention that the
Judicial Committee may hear petitions for leave to appeal even in the
absence of a written judgement of the Court of Appeal, the Committee
considered, basing itself on its jurisprudence, [FN3] that the Judicial
Committee could not, in its practice, entertain petitions for leave to
appeal which are not corroborated by a reasoned judgement of the Court of
Appeal of Jamaica. In the circumstances, the Committee found that a petition
to the Judicial Committee did not constitute a remedy that was both
available and effective within the meaning of article 5, paragraph 2 (b), of
the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------[FN3]
Official Records of the General Assembly, Forty-sixth Session, Supplement
No. 40 (A/46/10), annex XI.D, communication No. 253/1987 (Paul Kelly v.
Jamaica), views adopted on 8 April 1991, parag. 4.1 and 5.3.
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5.2 In respect of the author's claim under article 7, the Committee observed
that the characterization of prolonged detention on death row as cruel,
inhuman and degrading treatment had not been placed before the Jamaican
courts and that, accordingly, domestic remedies had not been exhausted.
5.3 As to the author's allegations under articles 6, paragraph 5, and 14,
paragraphs 3 (c) and (e), the Committee considered that they had been
substantiated and that they deserved consideration on the merits. The
author's remaining allegations were not considered substantiated, for
purposes of admissibility.
5.4 On 20 March 1992, therefore, the Committee declared the communication
admissible in so far as it appeared to raise issues under articles 6,
paragraph 5, and 14, paragraphs 3 (c) and (e), of the Covenant; it reserved
the right to review its decision in respect of the author's claim under
article 6, paragraph 5, of the Covenant.
The State party's further observations and request for review of
admissibility and counsel's comments
6.1 In a submission dated 2 September 1992, the State party observes that
there was no violation of article 6, paragraph 5, in the author's case: the
birth certificate shows that the author was born on 21 June 1962 and that,
accordingly, he was no longer a juvenile at the time of the commission of
the offence (26 September 1980).
6.2 The State party reiterates that the communication is inadmissible on the
ground of failure of exhaustion of domestic remedies, and that the author
may petition the Judicial Committee of the Privy Council even in the absence
of a written judgement of the Court of Appeal, under rules 3 and 4 of the
rules of procedure of the Judicial Committee.
6.3 As to the claims under article 14, paragraphs 3 (c) and (e), the State
party adds that it would further be open to the author to seek redress for
an alleged breach of his rights under section 20 of the Jamaican
Constitution, pursuant to section 25 thereof. The State party observes that
the author has "in no way substantiated allegations [that] witnesses in his
favour were not called and that the issue of whether he was correctly
identified was not properly explored". In the State party's opinion, the
issue of correct identification is one of evidence, the review of which is
the function of an appellate court and not, save in exceptional
circumstances, within the competence of the Committee.
7.1 In his comments, counsel concedes that Mr. Allen was an adult when the
crime was committed.
7.2 Counsel affirms that the author does not have the means to instruct a
lawyer to file a constitutional motion on the issue of delay and/or any
other irregularity under the Jamaican Constitution. The Poor Prisoners'
Defence Act does not provide for legal aid for this purpose, and no lawyer
in Jamaica has been willing to file a motion on the author's behalf on a pro
bono basis. Counsel reiterates that even if the author were in the position
to file such a motion, Jamaican courts would consider themselves bound by
the Riley precedent (see para. 2.6 above).
7.3 As to the availability of a petition for special leave to appeal to the
Privy Council, counsel recalls that the Privy Council does not act as a
simple appellate court, and that it will only grant leave to appeal upon
evidence that a substantial miscarriage of justice has occurred. Simple
misdirections (to the jury) by a judge are not sufficient. It is therefore
submitted that there are no grounds on which to petition the Judicial
Committee (see para. 2.5 above).
7.4 Finally, counsel reiterates that the delays in the judicial proceedings
did not arise as a consequence of the author exercising his rights of
appeal, but solely as a result of "maladministration" by the State party.
Review of admissibility and consideration of the merits
8.1 The Committee has taken note of the State party's further arguments on
admissibility and of counsel's further information regarding the
availability of constitutional remedies in Mr. Allen's case.
8.2 With regard to the State party's contention that constitutional remedies
are still open to Mr. Allen, the Committee recalls that domestic remedies
within the meaning of the Optional Protocol must be both available and
effective. The Committee considers that, in the absence of legal aid
provided by the State party and given that the author has not been able to
secure legal assistance for this purpose, a constitutional motion does not,
in the circumstances of the instant case, constitute an available remedy
within the meaning of article 5, paragraph 2 (b), of the Optional Protocol,
which the author must exhaust. The Committee, therefore, finds no reason to
revise its decision on admissibility.
8.3 The Committee has considered the claims raised in the communication in
the light of all the written information provided by the parties. In respect
of the allegation of a violation of article 6, paragraph 5, the Committee
observes that the State party has conclusively shown, and counsel conceded,
that Mr. Allen was an adult when the crime of which he was convicted was
committed. Accordingly, the Committee concludes that there has been no
violation of article 6, paragraph 5.
8.4 The author contends that he did not have a fair trial within the meaning
of article 14 of the Covenant, although he does not claim that the court was
not impartial or the jury biased. Thus, he claims that no evidence was
adduced by the prosecution to rebut his claim that he was not known by the
nickname "Dap-si-Do" but as "Windward". He further observes that no evidence
was put forth to rebut his testimony that from 26 September 1980 until his
arrest in August 1982, he remained in the area working as a barman, without
ever being questioned about W. H.'s death. The Committee observes that these
claims essentially relate to the evaluation of the evidence by the domestic
court. In this respect, it reiterates that it is generally for the appellate
courts of States parties to the Covenant to evaluate the facts and evidence
in a particular case, unless it is clear that the judge's instructions to
the jury were arbitrary or amounted to a denial of justice, or that the
judge violated his obligation of impartiality. After careful consideration
of the material before it, the Committee concludes that the trial did not
suffer from such defects. Accordingly, there is no violation of article 14,
paragraph 1, in this respect.
8.5 The author alleges that the preparation and presentation of his defence
were deficient, in that no witnesses were called on his behalf. More
generally, he contends that legal assistance available to individuals
charged with criminal offences in Jamaica is such that witnesses are rarely
traced or subpoenaed (see para. 3.1 above). In respect of these claims,
which were subsumed under article 14, paragraph 3 (e), in the admissibility
decision of 20 March 1992, the Committee notes that the material before it
does not disclose that either the author or his counsel complained to the
judge that facilities for the preparation of the defence had been
inadequate. Nor is there an indication that counsel decided not to call
witnesses on Mr. Allen's behalf other than in the exercise of his
professional judgement or that, if a request to call witnesses was made, the
judge disallowed it or would have disallowed it. In the circumstances, the
Committee finds no violation of article 14, paragraph 3 (e).
8.6 The analysis of the author's communication reveals that he has made two
complaints in respect of the issue of delay. His initial complaint that a
delay of five years in the execution of the sentence of death constitutes
cruel, inhuman and degrading treatment within the meaning of article 7 of
the Covenant was declared inadmissible in the Committee's admissibility
decision of 20 March 1992. The author's subsequent claim, relating to
administrative and judicial delays, was found admissible in respect of
article 14, paragraph 3 (c). However, the substance of this claim has
remained unclear, and no material in support of it has been placed before
the Committee. In the circumstances, the Committee finds no violation of
article 14, paragraph 3 (c).
9. 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 it do not disclose a violation
of any of the provisions of the Covenant. |
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