Fri | Jul 30, 2021

NO CHARGES - Supreme Court dismisses INDECOM challenge to DPP ruling not to prosecute cops for killing

Published:Friday | October 23, 2020 | 12:17 AMLivern Barrett/Senior Staff Reporter
DPP Paula Llewellyn.
DPP Paula Llewellyn.

The Supreme Court has shut down an attempt by the Independent Commission of Investigations (INDECOM) to compel the country’s chief prosecutor to file murder and other charges against two cops over a controversial fatal shooting.

At the centre of the legal squabble between the Office of the Director of Public Prosecutions (ODPP) and INDECOM is the 2016 shooting death of Jamar Walford during a police operation in Denham Town, west Kingston.

Among the evidence INDECOM said it uncovered during a probe of the incident was that the 9mm pistol cops reportedly took from Walford was the “same firearm” recovered by the police from a previous operation led by Deputy Superintendent Alfred McDonald on April 28, 2016.

McDonald was the senior officer who led the operation in which Walford was killed. The other cops involved in the operation were corporals Kirk Adlam, Rhamone Scott, and Gregory South, as well as Constable Dwayne Kelly-James.

The ODPP, after reviewing the evidence collected by INDECOM, ignored a recommendation by the police oversight body that McDonald be charged with murder and misconduct in a public office.

‘Strong disciplinary proceedings’

The ODPP also ignored a recommendation that Adlam be charged with attempting to pervert the course of justice.

Instead, the prosecutorial authority suggested that “strong disciplinary proceedings” be instituted against both DSP McDonald and Adlam.

The ODPP, however, agreed with INDECOM that Scott should be charged with murder while South and Kelly-James should face wounding with intent charges.

After trying unsuccessfully to get the Paula Llewellyn-led ODPP to reconsider its legal opinion, INDECOM, led by then Commissioner Terrence Williams, went to court to obtain permission to seek a judicial review of the ruling.

Court rules require litigants to seek leave for judicial review for a judge to determine whether the case has a realistic chance of succeeding.

In its court filings, INDECOM outlined 12 grounds of contention and sought an order of certiorari quashing the decision not to recommend charges against McDonald and Adlam.

Further, the oversight body sought an order of mandamus that would compel the ODPP to file the respective charges against the two.

INDECOM sought, too, a declaration that a prima facie case had been made out against McDonald for murder and misconduct in a public office and against Adlam for attempting to pervert the course of justice.

“Failure to charge Deputy Superintendent McDonald … and Corporal Kirk Adlam … breaches the procedural obligations implied by virtue of the constitutional guarantee of the right to life,” the agency argued, according to court documents.

Arguing that the ODPP erred in law, INDECOM contended that the decision not to prosecute the cops was “irrational”. “The respondent erred in failing to adequately consider or misconstrued that inferences of culpability could be drawn from the evidence.”

Adley Duncan, acting deputy director of public prosecutions, who represented the ODPP, acknowledged, according to court transcripts, that its legal opinions are subject to review by the court but argued that this is to be done in “certain circumstances”.

However, he argued that the circumstances of the case filed by INDECOM did not fall into that category.

Justice Simone Wolfe-Reece, in refusing the application, indicated that she saw no evidence to support the view that the ODPP’s decision was unlawful or irrational.

“In my opinion, the applicant (INDECOM) has not shown that the decision of the learned director (Llewellyn) was so outrageous that it defied logic or accepted moral standards,” Wolfe-Reece said in her ruling, which was handed down in the Supreme Court yesterday.

“The respondent’s decision not to prosecute is based on what she described as gaps in the evidence and an inability to be able to prove the case to the requisite standard.”

There was no response to the ruling from INDECOM up to late yesterday.

INDECOM’s account of the slaying, which is based on statements collected by its investigators, alleges that Walford was first shot and injured by South at 70 Bond Street. He was fatally shot by Scott after he ran on to adjoining premises, the police oversight body claimed.

According to INDECOM, the cops did not deny shooting the west Kingston man but insisted that it was in self-defence after he opened fire at them.

However, the oversight body revealed in court documents that it has witness statements from several civilians who said they were present during the operation.

“These witnesses state that at all material time during this operation, Mr Walford was unarmed. They also contend that Mr Walford was in his room which he occupied when the police officers entered the room and shot him.”