Mon | Dec 18, 2017

Editorial | New vistas from Khajeel Mais’ murder

Published:Thursday | October 12, 2017 | 12:00 AM

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-year-old 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 not 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.