Submitted
by: Michael Sawyers, Michael and Desmond McLean (represented by counsel)
Alleged
victims: The authors
State
Party concerned: Jamaica
Date
of communication: 13 March 1987 and undated communication (received on 28
October 1987)
Date
of the decision on admissibility: 7 April 1988
The Human
Rights Committee, established under article 28 of the International Covenant
on Civil and Political Rights,
Meeting
on 11 April 1991,
Having
concluded its consideration of communications Nos. 226/1987 and 256/1987,
submitted to the Committee by Michael Sawyers and Michael and Desmond McLean
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 authors
of the communications and by the State party,
Adopts
the following:
Views under article 5 paragraph 4 of the Optional Protocol
1. Michael
Sawyers submitted his communication on 13 March 1987. A similar communication
from his co-defendants, Desmond and Michael McLean, was received on 28 October
1987. The communications were joined by a decision of the Committee dated 7
April 1988. The authors are Jamaican citizens awaiting execution at St. Catherine
District Prison, Jamaica. They claim to be the victims of a violation by Jamaica
of article 14 of the International Covenant on Civil and Political Rights. They
are represented by counsel.
2.1 The
authors were arrested in July 1982 and charged with the murder, on 9 July 1982
at about 2.30 a.m., in an area of Kingston known as Waltham Park, of Randolph
Ramsay. At the time of his death, the deceased was in the company of his sister,
Dawn Ramsay, and Carl Martin, the prosecution's two principal witnesses.
2.2 The
authors were tried in the Home Circuit Court of Kingston in November 1983. They
challenged the testimony of the prosecution witnesses and stated that none of
them had been present at the scene at the time when the murder took place.
All three testified that on the night of 9 July 1982 they
had been at home asleep. Two witnesses corroborated the evidence of Michael
Sawyers and of Michael McLean. Mr. Sawyers further alleges that he was not placed
on an identification parade subsequent to his arrest, as is required in capital
cases.
2.3 On 25
November 1983, the authors were convicted of murder and sentenced to
death. On 10 March 1986, the Jamaican Court of Appeal dismissed their
appeal.
They subsequently sought leave to appeal to the Judicial Committee of the
Privy Council.
3. By decision
of 8 April 1987, the Committee transmitted Mr. Sawyers' communication
(No. 226/1987) under rule 91 of the rules of procedure to the State
party, requesting information and observations relevant to the question of
admissibility. In particular, the State party was asked to clarify whether the
Court of Appeal had issued a written judgement dismissing the author's appeal
and, if it had not yet done so, when that written judgement was expected
to become available, and whether the case had been submitted to the Judicial
Committee of the Privy Council.
4. In its
submission under rule 91, dated 3 June 1987, the State party explained
that the Court of Appeal had given a written judgement in the case on
12 February 1987 and provided the Committee with a copy. It further stated that
no hearing before the Judicial Committee of the Privy Council had taken place.
5. By further
decision under rule 91, dated 12 November 1987, the Committee transmitted
to the State party the communication of Michael and Desmond McLean
(No. 256/1987)
requesting information and observations relevant to the question
of admissibility as well as information relating to the status of the case
before the Judicial Committee of the Privy Council.
6. In a
further submission under rule 91
concerning communication No.
226/1987, dated 7 December 1987, the State party informed the Committee that
the author's petition for leave to appeal had been heard by the Judicial Committee
of the Privy Council on 8 October 1987 and dismissed. In its submission
under rule 91 concerning communication No. 256/1987, dated 16
February 1988, the State
party reiterated the information contained in its submission
of 7 December 1987 and forwarded a copy of the order of the Privy Council,
which does not give reasons for the dismissal.
7.1 Commenting
on the State party's further submission under rule 91, Mr.
Sawyers states that, on 5 January 1988, he was told by the coordinator of the
Jamaica Council for Human Rights that his petition for leave to appeal to the
Judicial Committee of the Privy Council had been dismissed because the Court
of Appeal of Jamaica had not issued a written judgement in the case.
7.2 Mr.
Sawyers further states that the Jamaica Council for Human Rights has received
a number of unsigned statements concerning his case from people in the community
where the murder occurred. These statements,
inter alia, by the father of the deceased, allegedly would prove that
he was innocent. The authors of these statements purportedly explained that
they did not do anything to help Mr. Sawyers because they would rather see him
executed than see all three go free. The father of the deceased is said to be
holding back with his statement in defence of the author because of fear of
retribution from his family and his wife.
8. On 7 April 1988,
the Human Rights Committee declared both communications admissible
under the Optional Protocol. It noted, in particular, that the authors'
petitions for leave to appeal had been dismissed by the State party's highest
appellate court, the Judicial Committee of the Privy Council, and that it
thus appeared that there were no further remedies that the authors could still
pursue. Considering that the communications referred to the same events,
the Committee further decided, under rule 88, paragraph 2, of its rules
of procedure, to deal with them jointly. It requested the State party, under
article 4, paragraph 2, of the Optional Protocol, to provide the Committee
with specific information relating to the substance of the authors' claims
and the circumstances under which their petition for leave to appeal to the
Judicial Committee of the Privy Council was heard and dismissed and reiterated
its request for interim protection under rule 86 of the rules of procedure.
9.1 In its
initial submissions under article 4, paragraph 2, of the Optional Protocol,
dated 2 and 16 November 1988, the State party argues that the authors'
communications are inadmissible on the ground that they have failed to
exhaust all available domestic remedies, since they have not taken any action
under the Jamaican Constitution to seek enforcement of their right to a fair
trial and legal representation. It requests the Committee to revise its decisions
on admissibility pursuant to rule 93, paragraph 4, of the rules of procedure
and explains:
9.4 The
State party submits that if a communication has been submitted to the Committee
by one of its citizens who was convicted of a criminal offence, the fact that
he had his case adjudicated by the Privy Council in respect of that offence
does not necessarily mean that he has exhausted domestic remedies, and that
in most cases he would not have exhausted them for the following reason:
"A communication is only properly before the Committee when it alleges the Government's
breach of a right protected by the Covenant; the rights so protected are generally
coterminous with the rights set out in chapter III of the Jamaican Constitution,
in relation to which an application may be made to the Supreme (Constitutional)
Court for redress by any person who alleges that his right has been, is being
or is likely to be breached. It follows, therefore, that even after a hearing
of the criminal appeal by the Privy Council, an unsuccessful appellant may still
exercise his constitutional right to seek redress for an alleged breach of,
for instance, his right to a fair trial within a reasonable time. Several constitutional
cases have been brought, and continue to be brought, before the Constitutional
Court by convicted persons who have been unsuccessful in their criminal appeals
to the Privy Council."
10.1 Authors'
counsel, in two submissions dated 10 February and 8 May 1989, contests the State
party's argument that, as the authors did not avail themselves of their right
to seek redress before the Constitutional Court of Jamaica pursuant to section
25 of the
Constitution, they
did not exhaust domestic remedies. He points out that the protection afforded
by section 25, paragraph 1, is designed to prevent the enactment of unconstitutional
laws and not to prevent abuses in the application of existing laws, as was confirmed
by the Privy Council in its judgement in Riley
r.
Attorney General. Thus the authors clearly have no remedy under section
25, paragraph 1.
10.2 Counsel
further points out that appeals to the Jamaican Court of Appeal and
the Privy Council are "adequate means of redress" within the meaning of paragraph
2 of section 25, as long as these tribunals comply with those provisions
of the Constitution
that
guarantee a fair trial. If they did not, it
would be open to persons convicted at first instance to by-pass the Court of
Appeal or the Privy Council and to appeal directly to the Supreme Court under
section 25, paragraph 1. This, it is submitted, cannot have been the intention
of the drafters of the
Constitution. As
long as the Court of Appeal and the Privy Council conduct fair hearings, they
provide "adequate means of redress", and the remedy under section 25 is not
open to convicted prisoners. In the authors' case, it is not alleged that the
hearings conducted by the
Court of Appeal and the Privy Council were unfair. Thus, while the remedy pursuant
to section
25 of the Constitution is theoretically available, it
cannot
be
considered to be an effective one.
10.3 Furthermore,
counsel indicates that any remedy, if it is to be more than theoretical,
must be accompanied by means enabling the applicant to avail himself
of it. No legal aid is, however, provided by the State party for the pursuit
of constitutional motions. Since the authors cannot themselves afford legal
representation, they would under no circumstances be able to submit their
case to the Supreme Constitutional Court.
10.4 As
to the merits of the authors' claims, counsel submits that the State party violated
article 14, paragraph 3 (b), of the Covenant because it did not provide them
with adequate time and facilities to prepare their defence. Thus, Desmond McLean
has stated that he met with his attorney while being held in police custody
but that he did not have the time to discuss adequately the case with him. Prior
to the trial, he did not see his lawyer and was thus unable to comment on the
accusations or to provide the lawyer with a list of names and addresses of witnesses
on his behalf. Although instructions were later provided during the trial, witnesses
who would have been helpful for his case were not called. Furthermore, in the
absence of comments on the evidence presented by the prosecution, the prosecution
witnesses could not be cross-examined effectively. Michael Sawyers met his lawyer
on two occasions prior to the trial. He did not comment on the prosecution statements
but provided his attorney with a list of witnesses who could have corroborated
his account but who were not called. He further stated that evidence that would
have enabled an effective cross-examination of Dawn Ramsay was not obtained.
Michael McLean met his lawyer on a single occasion prior to the trial; as in
the case of his co-defendants, witnesses who in his opinion would have assisted
the presentation of his case were neither interviewed nor called. Counsel submits
that in view of the gravity of the charge, the preparation of the authors' trial
was inadequate: thus, full instructions and comments on the prosecution statements
were not obtained, nor were witnesses traced or interviewed. It is alleged that
although it has not been possible to establish exactly how much financial aid
was available in the case and although the authors' mothers paid some fees to
the lawyers, the funds available were clearly inadequate. Unless legal aid is
sufficient, however, it is not possible for the legal representative to trace
and interview witnesses and secure their attendance in court.
10.5 Counsel
further alleges that the authors were not afforded a fair trial, in violation
of article 14, paragraph 1, of the Covenant. He submits that although there
were reasonable and well-founded suspicions that three members of the jury had
been consulting with the prosecution's main witness, the judge failed to order
or carry out a full and proper inquiry into the matter. Secondly, it is submitted
that the judge wrongly complied with a request from the jury, made after the
close of the case, to see the authors standing up together in the dock, without
giving counsel the opportunity to comment on any prejudicial inferences that
might have arisen. Thirdly, the judge wrongly excluded photographic evidence
of the locus
in
quo,
thus depriving the jury of an opportunity to evaluate the testimony of the prosecution's
witnesses. Finally, it is submitted that the judge was biased against the authors
and erred in law in the summation. In that context, the judge is said to have
misdirected the jury (a) on the issue of the burden of proof, failing to indicate
that the Crown had to prove the accused guilty beyond reasonable doubt, (b)
on the law of common design in stating that it was sufficient for a defendant
to be close enough to give assistance to a principal to be part of a common
design and (c) on the importance and effect of the unreliability of,
or contradictions in, some of the prosecution witnesses' testimony.
11. By interlocutory
decision of 24 July 1989, the Human Rights Committee reiterated
its request to the State party to furnish explanations or statements
relating to the substance of the communications. By further
interlocutory decision of 2 November 1989, it requested the State party to clarify
whether the Supreme (Constitutional) Court had had occasion to
determine, pursuant to section 25, paragraph 2, of the Jamaican Constitution,
whether an
appeal to the Court of Appeal and to the Judicial Committee of the Privy
Council constituted "adequate means of redress" for an individual claiming
that his right to a fair trial (sect. 20, para. 1, of the Constitution)
had been violated, and whether the Supreme (Constitutional) Court
had declined to exercise its powers under section 25, paragraph 2, in respect
of such applications, on the ground that "adequate means of redress" were
already provided for in law. By the same decision, the Committee urged the
State party to submit its explanations and observations under article 4, paragraph
2, of the Optional Protocol.
12. In a
submission dated 25 September 1989, the State party contends that rule
93, paragraph 4, of the Committee's rules of procedure mandates the Committee
to address requests for a review of an admissibility decision by separate
decision, before considering the merits of the communication. In line
with this interpretation, the State party denies the need to forward explanations
and observations under article 4, paragraph 2, of the Optional Protocol.
By submission of 11 January 1990, it explains that the Supreme (Constitutional)
Court has not yet determined whether pursuant to section 25, paragraph
2, of the Constitution, appeals to the Court of Appeal of Jamaica and
the Judicial Committee of the Privy Council constitute "adequate means of redress"
for individuals claiming that their constitutionally guaranteed right to
a fair trial has been violated. With respect to the purported violation of article
14, paragraph 3 (b), of the Covenant, the State party adds that the author's
allegations concerning insufficient access to counsel (para. 10.4) "do
not indicate [the] Government's responsibility for any inadequacy in the preparation
of the defence". As to the alleged violation of article 14, paragraph
1, the State party claims that the authors' contention that they were
denied a fair hearing because of the inadequacy of the judge's instructions
raises issues of facts and evidence in the case, which the Committee
lacks competence to evaluate. It refers in this context to two decisions
of the Human Rights Committee holding that it is for the appellate courts
of States parties to the Covenant to evaluate facts and evidence in a
particular
case. a/
13.1 The
Human Rights Committee has considered the present communications in the light
of the information made available to it by the parties, as provided in article
5, paragraph 1, of the Optional Protocol.
13.2
The Committee has
taken due note of the State party's contention that with respect to
the alleged violations of article 14 of the Covenant, domestic remedies have
not been exhausted by the authors, and of its request to review the admissibility
decision of 7 April 1988 pursuant to rule 93, paragraph 4, of the rules
of procedure. It takes the opportunity to expand upon its admissibility findings.
13.3 The
Committee has taken note of
the State party's
contention that
the communications
are inadmissible because of the authors' failure to pursue constitutional
remedies available to them under the Jamaican Constitution. In this
connection, the Committee observes that section 20, paragraph 1, of the Jamaican
Constitution guarantees the right to a fair trial, while section 25 provides
for the implementation of the provisions guaranteeing the rights of the
individual. Section 25, paragraph 2, stipulates that the Supreme (Constitutional)
Court may "hear and determine" applications with regard to the
alleged non-observance of constitutional guarantees, but limits its jurisdiction
to such cases where the applicants have not already been afforded "adequate
means of redress for the contraventions alleged" (sect. 25, para. 2, in
fine
). The Committee notes that the State party was requested to clarify, in
a number of interlocutory decisions, whether the Supreme (Constitutional) Court
has had the opportunity to determine the question pursuant to section
25, paragraph 2, of the Jamaican Constitution, whether an appeal to the
Court of Appeal and the Judicial Committee of the Privy Council constitute "adequate
means of redress" within the meaning of section 25, paragraph 2, of the Jamaican
Constitution. The State party has replied that the Supreme Court has so far
not had said opportunity. Taking into account the State party's clarification,
together with the absence of legal aid for filing a motion in the Constitutional
Court and the unwillingness of Jamaican counsel to act in this regard without
remuneration, the Committee finds that recourse to the Constitutional Court
under section 25 of the Jamaican Constitution is not a remedy available to the
author within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
13.4 The
Committee observes that the wording of rule 93, paragraph 4, of its rules of
procedure does not support the State party's contention that a request for the
review of an admissibility decision must be addressed prior to, and separately
from, consideration of the communication on the merits. b/
13.5 As
to the merits, the Committee first addresses the authors' claim that the judge's
instructions to the jury were inadequate, in the light of the contradictory
evidence that was put before the jury and which it was for the jury to accept
or reject. The Committee recalls its established jurisprudence
c/
that it is generally for the appellate courts of States parties to the Covenant
to evaluate facts and evidence in a particular case. It is not in principle
for the Committee to review specific instructions to the jury by the judge in
a trial by jury, unless it can be ascertained that the instructions to the jury
were clearly arbitrary or amounted to a denial of justice, or that the judge
manifestly violated his obligation of impartiality. The Committee has no evidence
that the trial judge's instructions suffered from such defects. Accordingly,
the Committee finds no violation of article 14, paragraph 1.
13.6 As
to the authors' claims relating to article 14, paragraphs 3 (b) and (e), 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 an emanation of the principle of equality of arms.
The determination of what constitutes "adequate time" depends on an assessment
of the circumstances of each case. While it
is uncontested that none of the accused met with their lawyers more
than twice
prior to the trial, the Committee cannot conclude that the lawyers were
placed in a situation where they were unable properly to prepare the case for
the defence. In particular, the material before the Committee does not reveal
that an adjournment of the case was requested on grounds of insufficient
time for the preparation of the defence; nor has it been argued that
the judge would have denied such an adjournment, had it been requested. The
Committee is not in a position either to ascertain whether the alleged failure
of the representatives to call witnesses who might have corroborated the
authors' testimonies was a matter of professional judgement or of negligence.
13.7 Furthermore,
the Committee notes that both Mr. Sawyers and Messrs.
McLean were represented by privately retained counsel during trial; on appeal,
Messrs. McLean were represented by the same privately retained counsel.
Mr. Sawyers was represented by a different counsel, who withdrew before
the appeal was concluded (instead, a legal aid lawyer, a Queen's counsel,
was appointed). Any shortcomings regarding time for consultation and preparation
of the defence cannot, therefore, be attributed to the State party.
13.8 In respect
of the authors' claim that they were denied a fair trial on account
of a "reasonable and well founded" suspicion that there had been contacts
between some jurors and a prosecution witness, the Committee finds that
this claim has not been substantiated.
13.9 Accordingly,
the Committee finds that there has been no violation of article 14, paragraphs
3 (b) and (e), of the Covenant.
14. 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 do not disclose any violation
of the provisions of the Covenant.
(Done in
English, French, Russian and Spanish, the English text being the original version.)
Notes