THE PATRICK Genius case in which Kent Pantry, Q.C., the Director of Public Prosecutions, said he did not have sufficient evidence to rule that the three policemen allegedly involved in his death should be charged with murder, is to go to the Court of Appeal.
Attorneys-at-law Richard Small and David Batts who are representing Genius's mother, disclosed on Thursday that they will be appealing against a recent Supreme Court ruling which turned down an application for leave to go to the Judicial Review Court or to extend time in which to file the application for leave.
Jamaicans for Justice, the Human Rights lobby group, has taken a special interest in the case.
Leonie Marshall, mother of Patrick Genius, 32, welder, who was shot dead by the police on December 13, 1999 had filed an application in the Supreme Court seeking leave to go to the Judicial Review Court to challenge the DPP's ruling and the Coroner's failure to charge the three policemen.
The police had reported that Genius who was riding on a motorcycle, was killed in a shoot-out with the policemen. Witnesses said the policemen stopped Genius and shot him to death while his hands were in the air.
Amnesty International had described Genius's death as an example of what it called "systematic impunity" in Jamaica for police who kill suspects in extra-judicial executions.
Mr. Justice Roy Jones (acting) heard the applications on April 10 and refused to grant them.
Leonie Marshall had filed an application in the Supreme Court seeking leave to apply for a judicial review of the decision of the Coroner for Kingston to refer the matter to the DPP rather than to charge the three policemen with murder. Also, she sought a review of the DPP's ruling that no proceedings were to be instituted against the three policemen.
A review was being sought of the DPP's decision not to disclose to Marshall his reasons for not instituting proceedings against the three police officers. She contended that the DPP failed, neglected or refused to pay any attention to the medical evidence given at the coroner's inquest and therefore acted unreasonably in his decision.
Marshall was seeking an order from the Judicial Review Court that the DPP and the coroner abdicated their statutory and constitutional duties in that they failed to act as required by law.
Mr. Justice Jones in dismissing the application ruled that Marshall did not submit any documents or transcript of the proceedings from the Coroner's Court to support her contention in regards to the Coroner who presided at the inquest in Genius' death.
"To decide otherwise, would simply be to allow an applicant a right, in every case, in which unsupported information is submitted, access to the judicial review court," the judge said.
In relation to the complaint against the DPP, the judge said the DPP "has discretion whether or not he should institute criminal proceeding against the three police and was not bound by the decision of a coroner's jury." The application for leave to apply to the Judicial Review Court was not filed within the specified time. Marshall sought leave for extension of time in which to apply for judicial review.
The judge, in giving his reasons on Monday for refusing the applications, said that there was no evidence that Marshall had given notice to the Coroner or the DPP, requesting them to attend if they had objections to the application to extend time.
"This was an essential step for the applicant, so as to assist the court in deciding on the merits of the application for extension to time. This procedural irregularity went to the heart of this application, " the judge ruled.
He said also that there was authority for the proposition that an applicant who wished to enlarge time must give notice to the other party or parties to be affected by the order. The judge also referred to the length of time the applicant had in which to file the application.
He said Marshall submitted a transcript of a taped interview with the DPP which was recorded on January 9 this year. The judge said it could be inferred form that interview that the applicant Marshall had knowledge from then of the DPP's decision not to charge the policemen. The application for leave to apply for judicial review was filed on March 18.
