BASSETERRE, St. Kitts – IT is not only Hugh Oswald Wallace who had voiced his belief that there would be no justice for his son, Philo Wallace, who was shot and killed by an off-duty police officer, but also many members of his family, members of the recently-formed ‘Save St. Kitts and Nevis’ and many other citizens and residents of the twin-island Federation.
This belief has its genesis in the police investigating their own, following statements made by members of the High Command during a press conference held at the Charlestown Police Station on Monday, October 19, 2015.
At approximately 3:45 a.m. on Saturday, October 17, 2015, an altercation took place at Enrique Bar in Charlestown, Nevis which resulted in 17-year-old Philo Wallace of Hamilton Village being shot in the chest and the wounding of a police officer.
Wallace was rushed to the Alexandra Hospital where he died about half an hour after.
It was learnt that the officer, who had suffered an injury to his head, was identified as the individual who shot Wallace to the chest at close range and was off-duty at the time of the incident.
A number of questions were asked by media operatives at the press conference, including who the officer was and where was he at that time, to which it was stated that the accused officer was a Constable and that he was on sick leave.
A media operative then asked: “Will the investigation be conducted using the internal mechanism of the Force or will a special prosecutor/investigator be brought in?”
In response, Assistant Commissioner of Police (ACP) with responsibility for Crime, Ian Queeley said, “The investigations are well underway and this particular point in time there is no external mechanism. The Violent Crimes Unit of the St. Kitts-Nevis Police Force has been activated along with the Office of Professional Standards. So we have concurrent investigations happening at this time.”
And responding to if the police had heard or seen anything that suggested deadly force was used in the shooting of the teen, ACP Vaughan Henderson, who is responsible for Operations, said: “At this point in our investigation the matter is still sub judice. The matter is still very early and still under investigation. And to be fair to both sides, we are not in a position to say whether or not the shoot with deadly force that was used is justified. As the investigation goes on, we are hoping that we will give further information and updates to the general public.”
There were two questions which answers had caused many people to comment that the police were “tight-lipped” on the matter.
One was: “Is there any evidence that the guy who received injury to his head was struck by the guy who got killed?” And the other was: “Did that officer had the rank to carry a weapon while off-duty?” or similar words.
Both questions were answered by ACP Queeley.
“Firstly, the ranks and issuance of firearms...there are regulations. I indicated earlier certain persons are allowed to carry firearms. For the purposes of this, I cannot say what unit or persons would be entitled to carry firearms. That would be compromising to say.
“In relation to the other question, that matter is too early to give any feedback to. Suffice to say, that is only an allegation. And if it’s an allegation, investigations that we are ongoing we are hoping to extract from all potential witnesses what they would have seen or heard so as to determine whether or not that was true.”
Following that press conference, late last month (Nov.) it was bandied that the Constable had returned to active duty, but that rumour was debunked by Acting Commissioner Stafford Liburd.
“The Constable who is involved in the shooting-death of Philo Wallace is not on active duty. He is presently on administrative leave, but he is very much restricted while on that leave. The restriction on that leave does not permit him to be around in certain areas of the Police Force,” Liburd said
He reminded that the officer was on sick leave shortly after the shooting incident and, on completion of that, the restriction was implemented.
Asked if the embattled Constable was restricted from entering any police station, the Commissioner (Ag) said: “He is restricted in a number of ways...where he can go, how he can go, and in so doing he must get the appropriate permission.”
Liburd had pointed out that a Coroner’s Inquest was scheduled to be held “but I cannot say how soon. However, we will try to advance it as quickly as we can”.
He informed that the Office of the Director of Public Prosecutions (DPP) had given the Police Force a directive to move towards the Coroner’s Inquest, and “once it is held and whatever the outcome, we are obliged by law to follow”.
When contacted, the Acting DPP, Arudranuath Gossai, told SKNVibes that he had sent a letter on Wednesday (Nov. 4) to the Magistrate on Nevis advising her to hold a Coroner’s Inquest into the matter.
And during last week, SKNVibes again contacted Commissioner (Ag) Liburd on the date of the Coroner’s Inquest and he informed that “it would be held in early January”.
Because of the high degree of public interest this incident has attracted, SKNVibes had decided to keep readers informed on its developments, the last of which was “The Philo Wallace Saga – Coroner’s Inquest”.
However, in that article, the writer had failed to mention a very important aspect of the December 31, 2002 Revised Edition of the Coroners Act, which indicates that the responsibility lies with the police in selecting a five-member jury to serve on the inquest.
Chapter 3.08, Section IV (18) Jury how summoned...states:
(1) Where by this Act a Coroner is required to hold an inquest he or she shall, subject to the provisions of section 12, issue his or her warrant directed to the senior officer of police and other police officers of the district where the body lies, requiring him or her or them to summon five good and lawful persons to appear before him or her at a specified time and place, there to inquire as jurors touching the death of such person as aforesaid.
(2) On receipt of such warrant the said senior officer, or in his or her absence such other police officer as shall be in charge of the police station in the district, shall summon such five good and lawful men as aforesaid which summons shall be served personally, or by leaving a copy at the usual place of abode of the juror, and shall deliver a list of the persons so summoned to the Coroner at the inquest.
It is because of the police investigating their own, coupled with this section of the Coroners Act, that the senior Wallace and many others are of the view that there would be no justice for the deceased teenager.
“The thing about it is once police are going to judge police you could expect the worst. I have an issue with the police trying the police. That’s a big, big problem. It is similar to trying the devil in hell and there will be no justice for my son. He had a very bright future as a cricketer. Who knows how great he might have been? None of us, because we are not clairvoyant! But all it took was just one bullet from an off-duty police officer to end his dreams,” the father said.
He is also adamant that the Coroner’s Inquest would reflect the same.
“The Inquest will be based on evidence that the police investigators will present to the Coroner and that could be biased. I say bias because I do not trust the police. They may want to justify the officer’s action by only presenting statements made by so-called witnesses who are sympathetic towards the officer.”
Because of the mistrust and lack of confidence in the police, many individuals, groups and non-governmental organisations have suggested that an independent investigation should have been conducted into the matter.
It is however lawful for the police to investigate their own. And in keeping with the Coroners Act (which, by the way, is archaic), it is not the police who make the decision for the holding of an inquest but the Office of the DPP. This therefore means that, regardless of the public’s view, the police ought not to be blamed for the decision-making process into the matter.
According to ACP Queeley, the investigation was completed and the file was sent to the Office of the DPP, from where the decision was taken for a Coroner’s Inquest to be held.
But on the other hand, taking the current situation that exists in St. Kitts and Nevis where members of the RSCNPF are engaged in community activities to resuscitate the good relationship they once enjoyed with members of the public, an independent investigation would have surely appeased the bereaved relatives and other concerned parties.
This is not the first time a police officer had shot and killed a civilian in St. Kitts and Nevis. A number of such incidents occurred in the past and the officers were not charged with murder but Coroner’s Inquests were held. Among those victims were: Dave Ainsley Jeffers who was shot and killed in 1991; Philmore ‘Kiddie’ Seaton who was shot and killed on Thursday, March 8, 2007; Eustace ‘Boukie’ Benjamin shot and killed on August 19, 2012; Winston Calistus Browne shot and killed on January 22, 213; and Trevor ‘Eldred’ Douglas shot and killed on March 27, 2013.
Research indicated that it was a Police Recruit who had shot and killed Jeffers on Church Street in Basseterre and there was no inquest. He was sentenced to 18 months imprisonment on a charge of manslaughter.
A similar approach to the Jeffers case occurred in neighbouring Antigua and Barbuda almost a decade ago when, for the first time in the history of that country’s Police Force, an officer had shot and killed a civilian and was convicted of murder.
According to reports, there was no Coroner’s Inquest and the policeman was charged with murder. This therefore begs the question: “Couldn’t the Office of the DPP use this case as a precedent, knowing that St. Kitts and Nevis, like Antigua and Barbuda, is part of the Eastern Caribbean?”
The trial was held at the Antigua and Barbuda Supreme Court, where the policeman, Kevil Nelson, was convicted and sentenced to 22 years for the 2006 murder of Denfield ‘Tody’ Thomas.
He appealed and the murder conviction was quashed in November 2013 by the Eastern Caribbean Court of Appeal and substituted by manslaughter and his sentence was reduced by 10 years, but from which pre-sentence custody of four-and-a-half years must be deducted.
However, according to the High Court records, Constable Nelson did not serve four-and-a-half years in custody awaiting trial because he was arrested and charged in September 2007, convicted in October 2009 and sentenced in December of that year, making it two years and two months on remand.
In explaining the rationale for the ruling, Justice Davidson Baptiste, who wrote the judgment, insinuated that the trial judge had erred by not providing an explanation on provocation to the jury. He said in cases where provocation arises, it is incumbent on the trial judge to direct the jury that had the intention to kill arisen from that, Constable Nelson would have been entitled to the lesser verdict of manslaughter.
As a result, the DPP subsequently filed an appeal to the Privy Council – Director of Public Prosecutions (Appellant) vs. Nelson (Respondent) [2015] – before Lady Hale, Lord Hughes and Lord Toulson.
Arguments by counsel for the appellant had proven that the trial judge did not err because he had provided a textbook definition of provocation, using the words of the statute, as counselled by Lord Diplock in DPP vs. Camplin [1978] AC 705 at 718E.
Judgment was delivered on February 16, 2015 by Lord Hughes, who stated that the “Board will humbly advise that the appeal of the Director of Public Prosecutions should be allowed and the conviction for murder and sentence restored, whilst the cross appeal of the defendant should be dismissed”.
Evidence presented to the Privy Council is as follows: “In the evening of 23/24 October 2006 there was a dispute at the home of the deceased between himself and his girlfriend, Nasha Edwards. He put her out of the house. She called the police. Two officers responded, the defendant Nelson and a colleague, PC Francis. They assisted Nasha to collect her son from the home of the mother of the deceased, and then they took her at her request to the deceased’s home to collect a bag of the child’s necessities. By the time they arrived there it was something like 0130 in the morning. The deceased emerged from the house, carrying the bag of the baby’s things. A confrontation ensued between the two officers and the deceased. How it arose and of what it consisted was in hot dispute at the trial. But in the course of it, the defendant drew his gun and shot the deceased dead when he was no more than an arm’s length away.
“According to Nasha, the officers had summoned the deceased out of the house and had told him that he must come to the police station, although, she said, she told them to leave him alone. According to her, the defendant then seized hold of the deceased, the deceased struck the defendant powerfully in the eye, and PC Francis tackled the deceased to the ground. Then, she said, the defendant told Francis to ‘watch yourself’ and shot the deceased as the latter tried to get up from the ground. She said that when she asked why he had shot the deceased, the defendant replied ‘You don’t see; he almost burst my eye? What do you want me to do?’, thus indicating that he was shot as a reprisal. There was medical evidence that the defendant had received a heavy blow to the eye which had caused a ‘blow out’ fracture of the floor of the orbit.”
By contrast, the defendant’s account of the incident was that “they were leaving when the deceased approached him aggressively telling him to get out his yard. The defendant said that he saw the deceased put something shiny into his trouser pocket. When PC Francis tried to search him, the deceased knocked him to the ground and turned on the defendant, striking him in the eye. Francis grappled with the deceased and they both went to the ground, but the deceased then charged at the two officers as they retreated towards the fence of the yard. The defendant said that he believed the deceased to have a weapon in his hand. He Page 2 said that he shot the deceased as he closed on the two of them, and did so in reasonable self defence”.
As stated in the judgment, the evidence of Constable Francis at the High Court trial broadly supported that of the defendant. Also, all witnesses had made earlier statements and were duly cross examined upon suggested inconsistencies between those statements and their evidence at the trial.
The report however stated, “The pathologist’s evidence suggested that the trajectory of the fatal bullet had been somewhat downwards having entered the front of the body at chest level. There was thus a direct conflict of evidence, which only the jury could resolve, as to what had happened, as to whether the defendant was under attack from the deceased, and as to whether the latter was armed with the scissors.”
Former Police Constable Kevil Nelson is currently serving his sentence at Her Majesty’s Prison in Antigua and Barbuda.
This media house has learnt that ACP Queeley had indicated that no stone would be left unturned in the police’s investigation into Wallace’s death and that he would ensure statements are provided by all available witnesses, thus providing transparency, professionalism and commitment to law and order by the RSCNPF.
He had also sent out a clarion call for anyone who would have witnessed the incident to contact the police so that the investigation would not be perceived as being biased.
However, if the investigative process had run contrary to the ACP’s pronouncements, there will certainly be repercussions that can create further disunity between the police and the public, which will adversely affect the transference of information from the latter to the former with regard to criminal activities. But, on the other hand, if the investigative process had included statements from all witnesses and made public during or after the Coroner’s Inquest, there may be a reverse and the relationship between the police and the public may be fruitful.
This situation could have been avoided if the previous Administration, having passed the Police Complaint Bill in 2012, had attached a commencement date to it. The current Administration also failed to do so since in Office. Therefore, to guard against a recurrence, the Team Unity Government should act swiftly to set a commencement date and to also review and amend the Coroners Act.
