By Barbara Gayle, Staff Reporter
Director of Public Prosecutions, Kent Pantry, Q.C. - File
THE FULL Court made a historic ruling yesterday when it granted leave for a review of the ruling of the Director of Public Prosecutions in the case of Patrick Genius, 26, who was slain by the police on December 13, 1999.
"Accordingly, leave is granted to apply for Judicial Review of "the decision of the Director of Public Prosecutions that no proceedings are to be instituted against the three police officers" (implicated in the slaying), the Full Court ruled in its unanimous decision.
The Director of Public Prosecutions, Kent Pantry, Q.C., had ruled in January this year that he did not have sufficient evidence to pursue charges against anyone in relation to Genius's death.
A Coroner's jury had ruled in May 2001 that person or persons were criminally responsible for Genius's death but did not name anyone.
Yesterday a legal expert referred The Gleaner to Section 2 (2) of the Criminal Justice Administration Act and said the Full Court after reviewing the depositions at the Coroner's Inquest could determine whether a Voluntary Bill of Indictment should be preferred against person or persons allegedly implicated in Genius's death. The Section states in part that an indictment may be "preferred by the direction of, or with the consent in, writing by a Judge of any of the Courts of this Island."
Leonie Marshall, Genius's mother, is seeking a review of the DPP's ruling based on the medical evidence.
The Full Court, comprising the Hon. Lensley Wolfe, Chief Justice of Jamaica, Justice Horace Marsh and Justice Kay Beckford, said that before embarking upon an examination of the legal arguments, it was necessary to summarise the alleged circumstances under which Genius came to his death. The court referred to the evidence of Dr. Peasad Sargangi, the forensic pathologist, who said he saw five gunshot wounds on the body of the deceased. There was no evidence of gunpowder deposit. The court referred to the evidence of Marcia Dunbar, a forensic analyst, who said she examined swabs taken from the hands of Genius and found no trace of gunpowder deposits.
"The reasonable inference to be drawn from this evidence is that the deceased did not fire a gun on the day in question. It is against this background that Mr. Richard Small, (attorney-at-law) for the applicant submitted that there was considerable material on the depositions which negatived the testimony of the police officers that they had shot at the deceased in self-defence.
"This submission leads me to pose this question: if the three policemen were to be charged on what evidence would the Crown rely to establish a prima facie case? Would the forensic evidence be sufficient to establish a prima facie case? This no doubt is the dilemma which confronted the learned Director of Public Prosecutions when he ruled that there was not sufficient evidence in law to charge anyone, " the court stated in its unanimous decision written by Chief Justice Wolfe.
The policemen had said that Genius was killed in a shoot-out and they acted in self-defence. In response to the court's ruling yesterday, Jamaicans for Justice, the human rights lobby group which is taking a special interest in the case, said: "Jamaicans for Justice hopes this small victory will encourage others to remain steadfast in their determination to obtain justice."
Attorneys-at-law Richard Small and David Batts, who represented Marshall, had asked the court for leave to apply to the Judicial Review Court to quash the DPP's ruling. Mr. Small commented on the fact that the DPP gave no reason for his ruling.
Mr. Pantry, in response to Mr. Small's submissions had described the application as 'frivolous, vexatious and hopeless", arguing that it therefore should not be granted. He said he had legal authority to make the ruling which he had made. He said his decision was based on proper legal principles and that he was not obliged to give reasons in every case in which he had made a ruling. However, he said that in cases of public interest, he may give reasons.
Marshall had first applied to the Supreme Court in March this year for application for leave to apply to the Judicial Review Court but in April Mr. Justice Roy Jones (acting) refused the application.
She next applied to the Full Court made up of Chief Justice Wolfe, Justice Marsh and Justice Beckford for leave to challenge the DPP's ruling. The court heard the application in July and reserved its decision until yesterday.
The Full Court referred to a Privy Council ruling in which it was held that "public prosecutions, on Judicial Review, is not an order requiring the Director to prosecute but rather an order requiring reconsideration of the decision whether or not to prosecute."
The court said further in its 12-page judgment that "certainly, when the Director of Public prosecutions says there was not sufficient evidence in law to charge anyone", he must be understood to be saying there was no evidence to establish a prima facie case against anyone, and therefore, it would be pointless to rule that someone be charged. Let us assume that the Coroner's Jury had named the three police officers as being criminally liable for the death of Patrick Genius, would the Director of Public Prosecutions be obliged to prefer an indictment against them, while at the same time taking the view that there was not sufficient evidence to establish a prima facie case against any or all of them? We think not."
Also, the court pointed out that section 94 of the Jamaica Constitution vests the DPP with authority to commence, take over or terminate prosecutions. "This means, therefore, that it would have been legitimate for him to discontinue or terminate any charges arising from the jury verdict if he took the view that there was not sufficient evidence to sustain such a verdict. The approach is reinforced by the decision in Regina v. Director of Public Prosecutions, ex parte Manning and Another (supra) where Lord Bingham of Cornhill said that a decision to quash the ruling of the Director of Public Prosecutions, on Judicial Review, is not an order requiring the Director to prosecute but rather an order requiring reconsideration of the decision whether or not to prosecute."
