Desmond Williams v. Jamaica, Communication No. 561/1993,
U.N. Doc. CCPR/C/59/D/561/1993 (8 April 1997).
Desmond Williams v. Jamaica, Communication No.
561/1993, U.N. Doc. CCPR/C/59/D/561/1993 (8 April 1997).
Distr. RESTRICTED [*] */
CCPR/C/59/D/561/1993
8 April 1997
Original: ENGLISH
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HUMAN RIGHTS COMMITTEE
Fifty-ninth session
24 March - 11 April 1997
VIEWS
Communication No. 561/1993
Submitted by:
Desmond Williams
[represented by Ms. K. Aston]
Victim: The
author
State party:
Jamaica
Date of communication: 30 June 1993 (initial submission)
Date of adoption of Views: 8 April 1997
On 8 April 1997, the Human Rights Committee
adopted its Views under article 5, paragraph 4, of the Optional
Protocol in respect of communication No. 561/1993. The text of the
Views is appended to the present document.
[ANNEX]
VWS561.59e cb
GE.97-
ANNEX*
Views of the Human Rights Committee under
article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights
- Fifty-ninth
session -
concerning
Communication No. 561/1993
Submitted by:
Desmond Williams
[represented by Ms. K. Aston]
Victim: The
author
State party:
Jamaica
Date of communication: 30 June 1993 (initial submission)
Date of decision on
admissibility: 6 July 1995
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 8 April
1997,
Having concluded its
consideration of communication No. 561/1993 submitted to the Human
Rights Committee on behalf of Mr. Desmond Williams 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 the
following:
Views under article 5, paragraph 4, of the
Optional Protocol
1. The author of the communication is Desmond
Williams, a Jamaican citizen currently awaiting execution at
St. Catherine District Prison, Jamaica. He claims to be a victim
of violations by Jamaica of article 14, paragraphs 1 and 3(a),
(b), (c) and (e) of the International Covenant on Civil and Political
Rights. He is represented by Ms. K. Aston.
The facts as submitted by the author
2.1 The author was taken into custody in
June 1985 in connection with the murder, on
29 May 1985 in the Parish of St. Andrew, of
Ernest Hart. On 9 July 1985, after having been
identified by the deceased's son and wife, Rafael and Elaine Hart, at
an identification parade, he was charged with Mr. Hart's murder.
On 5 October 1987, he was found guilty as charged and
sentenced to death.
2.2 The Court of Appeal dismissed
Mr. Williams' appeal on 21 June 1988. His petition for
special leave to appeal to the Judicial Committee of the Privy
Council was dismissed on 23 July 1992. With this, it is
submitted, all available domestic remedies have been exhausted. The
offence for which the author was convicted has been classified a
capital offence under the Offences against the Person (Amendment) Act
1992.
2.3 The prosecution's case rested on
identification evidence. The deceased's son testified that on
29 May 1985, at about 2.30 a.m., he was awakened by
his mother. Before he could leave his bed, he heard the door of the
living room being kicked open, immediately followed by gunshots. He
left his room and was confronted by two men, one armed with a knife
("the knifeman"), the other with a gun ("the gunman"). The
"knifeman", whom he later identified as the author, ordered him to
turn on the light and to hand over all their money. He told the men
that the house was not connected to the electricity network and that
money was likely to be found under his mother's mattress. Once in his
parents' bedroom, he was ordered to lift the mattress; the
"knifeman", who was standing next to him, lit a piece of paper with a
match and searched for the money. Nothing was found, however, and the
knifeman proceeded to search the room with the aid of the light of
burning pieces of newspaper. After both men left, he went to the
living room where he found his father lying in a pool of blood across
the doorway. Rafael Hart further testified that he was with both men
for about 13 minutes and that, aided by street lights shining into
the living room and by the light of the burning newspaper, he had
every opportunity to observe the author's face.
2.4 The deceased's wife testified that, alerted by
a noise outside the house, she warned her husband and went to her
son's bedroom; she then hid herself under the bed, from where she
heard a peculiar voice demanding money from her son. Although she
never saw the face of the author, she identified him by his
high-pitched voice at the identification parade.
2.5 The post-mortem examination revealed that
Mr. Hart had been shot three times with a light weapon, fired
from a distance of at least 18 inches. The gunman was never traced by
the police.
2.6 The author's defence was based on an alibi.
Desmond Williams did not give evidence; his father testified on his
behalf, stating that his son had been with him all the time and could
not have committed the crime.
2.7 As to the exhaustion of domestic remedies, the
author concedes that he has not applied to the Supreme
(Constitutional) Court of Jamaica for redress. He argues that a
constitutional motion in the Supreme Court would inevitably fail, in
the light of the precedent set by the Judicial Committee's decisions
in DPP v.
Nasralla1 and
Riley et al. v. Attorney General of
Jamaica2, in which
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 claims unfair treatment under the law, and
not that post-constitutional laws are unconstitutional, a
constitutional motion would not be an effective remedy in his case.
He further argues that, even if it were accepted that a
constitutional motion is a remedy to be exhausted, it would not be
available to him because of his lack of funds, the absence of legal
aid for the purpose and the unwillingness of Jamaican lawyers to
represent applicants on a pro bono basis for the
purpose.
The complaint
3.1 The author claims a violation of article 14,
paragraph 1, as no evidence was submitted that he ever held or
fired the gun and that, accordingly, he should have been convicted of
murder only if the jury was satisfied that he was a party to a common
design in which it was intended to cause
death or serious injury. Counsel refers to
passages of the judge's summing-up to the jury, and submits that the
trial judge failed to provide adequate direction to the jury
regarding the degree of violence that must be contemplated by the
intruders in order to justify a murder conviction. In that context,
it is submitted that it took the jury less than 10 minutes to return
its verdict; according to counsel, the short duration of the jury's
deliberation indicates that it considered only the issue of whether
the author was the knifeman and not whether, if he was the knifeman, he was
party to a common design in which it was intended to cause death or
serious injury.
3.2 Furthermore, counsel states that the author
was not represented by a lawyer at the identification parade, in
breach of rule 554A of the Jamaica Constabulary Force (Amendment)
Rules 1977, as the police officer in charge of the parade was unaware
of that requirement. The Court of Appeal dismissed that ground of
appeal, following its earlier judgement, in R. v. Graham and Lewis (SCCA
Nos. 158 and 159/81), that rules for the conduct of
identification parades are not mandatory but procedural and that
failure to observe those rules affect only the weight of evidence and
not the validity of the parade. Counsel contests the Court of
Appeal's findings and points out that the language used in rule 554A
("an attorney-at-law shall be present") is of an imperative nature;
she submits that the identification parade was invalid, and that
therefore the identification evidence should not have been admitted
in the judicial proceedings against the author.3
3.3 As to violation of article 14,
paragraph 3(a), it is submitted that the author was detained for
six weeks before being charged with the offence for which he was
subsequently convicted.
3.4 The author claims that he did not have
adequate time and facilities for the preparation of his defence, in
violation of article 14, paragraph 3(b). He states that he met
with his legal representative only on the first day of the trial,
after having been in custody for more than two years. The attorney
advised him not to give evidence at the trial. The author complains
that he had no opportunity to reflect upon this advice. He further
complains that the attorney did not call his girlfriend, D.O., to
testify on his behalf, in spite of his instructions to do so. In that
context, he refers to an affidavit, dated 17 February 1993,
signed by D.O., wherein she states that she was not called to court
even though she was willing to give evidence on the author's behalf.
She further states that on 29 May 1985, from 9.45 p.m.
onwards, the author was with her at home.4 The
author claims that the attorney's failure to call D.O. to testify
violated his rights under article 14, paragraph 3(e). With
regard to the preparation of his appeal, the author claims that he
met with counsel for the appeal only once, shortly before the
hearing.
3.5 The author points out that he was arrested on
9 July 1985 and tried from 1 to
5 October 1987, i.e., almost 27 months later. It is
submitted that the delay in the hearing of the case was prejudicial
to the author, in particular since the case against him was solely
based on identification evidence. This is said to amount to a
violation of article 14, paragraph 3(c), of the Covenant.
The State party's observations and author's
comments thereon
4. By its submission of 6 April 1994,
the State party argues that the communication is inadmissible because
the author has failed to exhaust domestic remedies. It notes that the
author may still apply for constitutional redress; in that context it
observes that the rights invoked by the author and protected by
article 14, paragraphs 1 and 3(a), (b), (c) and (e), are
coterminous with sections 20(1) and (6)(a), (b) and (d) of the
Jamaican Constitution. Pursuant to section 25 of the Constitution,
the author may seek redress for the alleged violations of his rights
by way of a constitutional motion to the Supreme Court.
5. In her comments, dated
3 February 1995, author's counsel states that since legal
aid is not made available for constitutional motions, a
constitutional motion does not constitute an effective remedy in the
author's case.
The Committee's admissibility
decision
6.1 During its fifty-fourth session, the Committee
considered the admissibility of the communication. It noted the State
party's argument that a constitutional remedy was still open to the
author and recalled that the Supreme Court of Jamaica had allowed
some applications for constitutional redress in respect of breaches
of fundamental rights after criminal appeals in those cases had been
dismissed. The Committee recalled, however, that the State party had
indicated that legal aid is not made available for constitutional
motions; in the absence of legal aid, a constitutional motion could
not be deemed to constitute an available remedy to an indigent
convict and need not be exhausted for purposes of the Optional
Protocol. Accordingly, article 5, paragraph 2(b), of the
Protocol did not bar the Committee from considering the case.
6.2 As to the author's allegations relating to
evaluation of evidence and the instructions given by the judge to the
jury, the Committee recalled its established jurisprudence, namely
that in principle, it is for the appellate courts of States parties
to the Covenant and not for the Committee to evaluate facts and
evidence in any given case. Similarly, it was not for the Committee
to review specific instructions to the jury by the trial judge,
unless it could be ascertained that those instructions were clearly
arbitrary or amounted to a denial of justice. As no such
irregularities were discernible in the author's case, the Committee
deemed that part of the case inadmissible under article 3 of the
Optional Protocol.
6.3 The Committee considered that the author and
his counsel had substantiated the remaining claims, which appeared to
raise issues under article 14 of the Covenant. On
6 July 1995, therefore, the communication was declared
admissible under article 14 of the Covenant.
State party's observations on the
merits
7.1 By its submission dated
18 October 1995, the State party provides observations on
the merits of the author's allegations. With respect to the
allegation of a breach of article 14, paragraph 3(a), because
Mr. Williams was detained for six weeks before he was informed
of the charges against him, the State party promises an
investigation. By 1 March 1997, however, the State party
had not informed the Committee of the results, if any, of its
inquiry.
7.2 The State party refutes the allegation that
there was a violation of article 14, paragraphs 3(b) and (e),
because the author met with his lawyer only on the first day of the
trial and because his representative did not call a potential alibi
witness. The State party notes that if counsel met with
Mr. Williams only on the opening day of the trial, she could and
should have sought an adjournment; there is no evidence that she did
so. Her decision not to call D.O. as a witness was a matter of
judgement relating to the best conduct of the defence, something for
which the State party cannot be held accountable. In this context, it
is submitted that once the State party has provided the accused with
competent counsel and has not, by act or by omission, obstructed
counsel in the discharge of his duties, then the issue of how counsel
conducts the defence is not the State party's responsibility. In this
respect there is no difference between the State's responsibility for
the conduct of privately retained counsel and its responsibility for
the conduct of a legal aid representative.
7.3 According to the State party, there can be no
question of a violation of article 14, paragraph 3(c), as a
result of a delay of more than two years between arrest and trial: a
preliminary inquiry was held during that time, and there is no
evidence that the delay between arrest and trial prejudiced the
author's interests.
8. Author's counsel was provided an opportunity to
comment on the State party's observations. No comments have been
received.
Examination on the merits
9.1 The Human Rights Committee has examined the
present communication in the light of all the information made
available by the parties, as it is required to do under article 5,
paragraph 1, of the Optional Protocol.
9.2 Article 14, paragraph 3(a), gives the
right to everyone charged with a criminal offence to be informed
"promptly and in detail in a language which he understands of the
nature and cause of the charge against him". The author contends that
he was detained for six weeks before he was charged with the offence
for which he was later convicted. For the purposes of article 14,
paragraph 3(a), detailed information about the charges against the
accused must not be provided immediately upon arrest, but with the
beginning of the preliminary investigation or the setting of some
other hearing which gives rise to a clear official suspicion against
the accused5. While
the file does not reveal on what specific date the preliminary
hearing in the case took place, it transpires from the material
before the Committee that Mr. Williams has been informed of the
reasons for his arrest and the charges against him by the time the
preliminary hearing started. In the circumstances of the case, the
Committee cannot conclude that Mr Williams was not informed of the
charges against him promptly and in accordance with the requirements
of article 14, paragraph 3(a), of the Covenant.
9.3 The right of an accused person to have
adequate time and facilities for the preparation of his defence is an
important aspect of the guarantee of a fair trial and an important
aspect of the principle of equality of arms. Where a capital sentence
may be pronounced on the accused, sufficient time must be granted to
the accused and his counsel to prepare the trial defence. The
determination of what constitutes "adequate time" requires an
assessment of the individual circumstances of each case. The author
also alleges that he could not obtain the attendance of one alibi
witness. The Committee notes, however, that the material before it
does not reveal that either counsel or the author ever complained to
the trial judge that the time for preparation of the defence had been
inadequate. If counsel or the author felt inadequately prepared, it
was incumbent upon them to request an adjournment. Furthermore, there
is no indication that counsel's decision not to call D.O. as a
witness was not based on the exercise of her professional judgement
or that, if a request to call D.O. to testify had been made, the
judge would have disallowed it. In those circumstances, there is no
basis for finding a violation of article 14, paragraphs 3(b) and
(e).
9.4 The author has claimed a violation of article
14, paragraph 3(c), because of "undue delays" in the criminal
proceedings and a delay exceeding two years between arrest and trial.
The State party has, it its submission on the merits, simply argued
that a preliminary inquiry was held during the period of pre-trial
detention, and that there is no evidence that the delay was
prejudicial to the author. By rejecting the author=s allegation in
general terms, the State party has failed to discharge the burden of
proof that the delays between arrest and trial in the instant case
was compatible with article 14, paragraph 3(c); it would have been
incumbent upon the State party to demonstrate that the particular
circumstances of the case justified prolonged pre-trial detention.
The Committee concludes that in the circumstances of the instant
case, there has been a violation of article 14, paragraph
3(c).
10. 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 disclose a violation of article 14,
paragraph 3(c),of the Covenant.
11. The Committee is of the view that
Mr. Desmond Williams is entitled, under article 2,
paragraph 3(a), of the Covenant, to an appropriate remedy,
including, in any event, the commutation of the death
sentence.
12. Bearing in mind that by becoming a State party
to the Optional Protocol, the State party has recognized the
competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of
the Covenant, the State party has undertaken to ensure to all
individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established, the
Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the
Committee's Views.
[Adopted in English, French and Spanish, the
English text being the original version. Subsequently to be issued
also in Arabic, Chinese and Russian as part of the annual report to
the General Assembly.]
-*-
__________
*/
Made public by decision of the Human Rights Committee.
*The following
members of the Committee participated in the examination of the
present communication: Messrs. Nisuke Ando, Prafullachandra N.
Bhagwati and Thomas Buergenthal, Mrs. Christine Chanet,
Mr. Omran El Shafei, Mrs. Elizabeth Evatt, Ms. Pilar Gaitan de
Pombo, Messrs. Eckart Klein and David Kretzmer, Mrs. Cecilia Medina
Quiroga, Mrs. Laure Moghaizel, Messrs. Fausto Pocar, Julio Prado
Vallejo, Martin Scheinin, Danilo T¸rk and Maxwell Yalden.
1(1967) 2 ALL ER 161.
2(1982) 2 ALL ER 469.
3It appears, however, from the judgment of the Court of
Appeal, that prior to the identification parade the author was asked
whether he had a lawyer whom he would have wished to be present at
the parade and that the author answered in the negative. A justice of
the peace and the author=s father were present at the parade.
4However, it is clear that the crime had occurred in the
early morning hours of 29 May 1985.
5See the Committee=s General Comment 13[21] of 12 April
1984, paragraph 8.