New vis­tas from Kha­jeel Mais’ mur­der

Jamaica Gleaner - - OPINION & COMMENTARY -

WE DON’T know why, or what it says or im­plies that Pa­trick Pow­ell didn’t con­test the civil suit for the death of Kha­jeel Mais six years ago, but for which he was ac­quit­ted of mur­der last Oc­to­ber.

In­deed, Mr Pow­ell may yet seek to set aside the de­fault judg­ment that or­dered him to pay com­pen­sa­tion of J$2 mil­lion to the Mais fam­ily, in which event, if he were suc­cess­ful, would al­low a full le­gal air­ing of what, for Ja­maica, was a novel use of an ex­ist­ing law and pro­vide a plat­form for an ex­panded de­bate on vic­tims’ rights.

Kha­jeel Mais, it is re­called, was a 17-yearold school­boy in July, 2011 when he was shot dead while trav­el­ling in a taxi in what be­came known as the X6 Mur­der, one of Ja­maica’s most cel­e­brated homi­cide cases, with sev­eral twists and turns. It is al­leged that the in­ci­dent was sparked by a mi­nor ac­ci­dent when a taxi hit a BMW X6 sports util­ity ve­hi­cle, whose driver opened fire with a gun. Pa­trick Pow­ell, iden­ti­fied as the owner of the X6, was, even­tu­ally, after his re­turn from the United States, ar­rested for the mur­der. His mur­der trial, how­ever, col­lapsed when the State’s key wit­ness, the driver of the taxi, tes­ti­fied that he didn’t see who was driv­ing the X6 or who had fired the shots, re­cant­ing ear­lier state­ments to the po­lice.

In one of the case’s sev­eral twists, Mr Pow­ell, a busi­ness­man, failed to sub­mit his li­censed firearm for test­ing, in breach of the law. For that he is serv­ing a nine-month jail term. In an­other of the turns, it was dis­cov­ered that the file re­lat­ing to Mr Pow­ell’s gun was miss­ing from the Firearm Li­cens­ing Author­ity.

In the mean­time, Kha­jeel Mais’ par­ents, Al­lana and Novel Mais, had brought a civil case against Mr Pow­ell for the wrong­ful death of their son, util­is­ing the Law Re­form (Mis­cel­la­neous Pro­vi­sions) Act of 1955, which al­lows for ac­tions of civil tort by the es­tate of a de­ceased per­son, in­clud­ing, Sec­tion 2 (2) (C) im­plies, in the cir­cum­stances “where the death of that per­son has been caused by the act or omis­sion” of an­other per­son.

In their state­ment of claim, the Maises con­tended that Mr Pow­ell “stopped along­side the taxi­cab (in which their son was a pas­sen­ger) ... and neg­li­gently and with­out law­ful cause dis­charged his firearm and shot the de­ceased”, who was “un­armed and posed no threat”.

NOT UN­HEARD OF

On the face of it, the Maises would have had to put Mr Pow­ell at the scene of the in­ci­dent and prove that it was he who shot their son, a claim that the Crown could cause to stick dur­ing the crim­i­nal trial. Civil tort on be­half of a de­ceased per­son is not un­com­mon in Ja­maica, but it is rare, if not un­heard of, for such cases to be brought in a cir­cum­stance where the ac­cused per­son, as was Mr Pow­ell, was al­ready freed of crim­i­nal li­a­bil­ity.

In the event, Mr Pow­ell has failed to re­spond within the al­low­able time, to the claims filed two years ago, hence the de­fault judg­ment. He is re­quired to pay J$206,786, for loss of ex­pec­ta­tion of life and J$1.7 mil­lion in spe­cial dam­ages as re­im­burse­ment to the Maises for fu­neral ex­penses.

This ac­tion by the Maises could well open the way to sim­i­lar claims of com­pen­sa­tion by the fam­i­lies and or es­tates of mur­der vic­tims, even in cir­cum­stances where the al­leged killer has been freed of the crime. More­over, it has a po­ten­tial to sharpen the spot­light on the obli­ga­tions, at Sec­tion 13 (1) (c) of the Con­sti­tu­tion, for all “all per­sons ... to re­spect and up­hold the rights and oth­ers recog­nised in this chap­ter”. Among those rights is the right to life.

Crit­i­cally, in­di­vid­u­als, and not only the State, are re­spon­si­ble, and can be held to ac­count for in­fring­ing the rights and free­doms guar­an­teed by the Con­sti­tu­tion, which, it seems to us, gives greater po­tency to ac­tions such as those taken by the Maises.

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