Lawyer Jomo Thomas has written to Director of Public Prosecutions (DPP) Sejilla Mc Dowall asking her permission to bring private criminal complaints against a police officer who shot a civilian maliciously six years ago.
The High Court has held that the police officer, Corporal Mohammid Lavia shot civilian Okeno Fergus, then 31, maliciously during an unprovoked attack in Owia on March 3, 2019.
However, instead of prosecuting Lavia for his actions, police charged Fergus after he sued Lavia and the government.
After a trial, then Magistrate Bertie Pompey found Fergus guilty of wounding Lavia. However, the Court of Appeal overturned that conviction, ruling that the magistrate had switched the burden from the prosecution to prove Fergus guilty, to Fergus having to prove himself innocent.
All this time, the state has failed and or refused to prosecute the officer involved, despite Thomas’ efforts to get Mc Dowall to do so.
In his Plain Talk commentary on Boom FM on Thursday, Thomas outlined the history of the case and his efforts to get the prosecution to bring criminal charges against Lavia.
He said Fergus instructed him in late January to write to the DPP, asking her to permit him to bring private criminal charges against Lavia.
Private criminal charges are when a citizen, rather than the state, brings a criminal charge against a person.
Before 2008, any citizen could have brought a private criminal charge against another, but the government changed the law and the Director of Public Prosecution must permit such charges.
In a Jan. 27 letter to the DPP, Thomas said his client had instructed him to write her “on a matter fundamental to elementary justice and the rule of law in St. Vincent and the Grenadines”.
He outlined to Mc Dowall that Lavia shot Fergus in his left leg on March 3, 2019, and Fergus was improperly charged and prosecuted for injuring Lavia.
“Mr. Fergus had to appeal to the Court of Appeal to vindicate his innocence,” Thomas said, adding that the High Court upheld Fergus’ claims of assault and battery.
He informed the DPP of Justice Esco Henry’s decision of July 14, 2022, in which she said:
“I cannot understand what would drive a police officer to treat a resident of any country in the way Cpl. Lavia behaved towards Mr. Fergus that morning. It was inhumane, merciless, aggressive, high-handed and totally undeserved. The court cannot countenance such conduct in a democratic society where the rule of law pervades the administration of justice and the society. If ever there was a case that attracted exemplary, aggravated and substantial general damages for loss, damage, physical, emotional and mental injury, this one certainly does.”
Thomas also noted that High Court Master Cybelle Cenac-Dantes ordered the State and Lavia to pay Fergus EC$102,754, which was done.
The lawyer said that the overturning of the unjust conviction, the pursuance of a successful civil claim against the State and Lavia and the payment of the assessed damages have offered Fergus some level of solace and satisfaction.
Fergus’ ‘pain and suffering from the gunshot wound continue’
“… his pain and suffering from the gunshot wound continue. The wound has not healed. His body continues to expel bone fragments. The gunshot wound occasionally oozes pus and causes severe pain whenever it rains,” Thomas said.
He informed the DPP that repeated calls for internal discipline by the police force and criminal charges by her office have fallen on deaf ears.
Thomas further mentioned to the DPP that he had written to her on Aug. 12, 2022, demanding that Lavia be arrested and charged.
“This letter was never even acknowledged,” he told the DPP, adding that he had attached a copy of it for her ease of reference.
“Therefore, because of the pigheaded abstinence by the state authorities to do justice and to ensure that the rule of law is adhered to, Mr. Fergus has implored me to request that a special fiat be granted to allow for the private prosecution of Mohammed Lavia. It is proposed that Officer Lavia be arrested, charged and tried with assault causing grievous bodily harm, reckless endangerment and wounding with intent.”
Thomas copied his letter to the Minister of National Security, Ralph Gonsalves, who is also prime minister, and acting Commissioner of Police, Enville Williams.
‘emotional meeting’
In his radio commentary, the lawyer said he had had an “emotional meeting” with Fergus the previous week, during which the client showed him the foot where Lavia’s bullet had entered six years ago.
“In fact, he showed me one of the bone fragments that was protruding,” the lawyer said.
“Now the thing that Mr. Fergus asked me to do was to ask the Director of Public Prosecutions to allow for a Fiat. A fiat is where you have to ask the director of Public Prosecutions to allow for private prosecution of an individual, a citizen of St. Vincent and the Grenadines.
Thomas that before then-police officer Michelle Andrews brought a private criminal complaint in 2008 alleging that Gonsalves had sexually assaulted her, citizens did not need the permission of the DPP to bring such private charges.
“It was within our laws for any citizen to institute a private prosecution against any citizen,” the lawyer explained.
“But after that unfortunate incident with Michelle Andrews, the state authorities moved to take away that ability for citizens to initiate a charge, and you must now apply to the director of public prosecution for the fiat to institute and to pursue a charge.”
Thomas said he did not know what would happen to his request for a fiat.
“The state may well remain in its pigheadedness. This letter may not be acknowledged, as was the previous one about two years ago, but the important thing is that citizens of St. Vincent have to be prepared to fight for every benefit that they get,” Thomas said.
“And I applaud Mr. Okeno Fergus for insisting that this man be brought to justice.”
Fergus living with impact of his injury
Thomas said that Fergus had reminded him that almost immediately after he was shot, Lavia was promoted to corporal.
The lawyer further pointed out that shortly after the court awarded damages in the case, “the police found it fit, found it proper, found it necessary to do an extensive press release announcing to the world that Mohammed Lavia was a model of leadership, that he had gone away and trained, … and that he excelled in so many areas.
“This man is a criminal. This is a man who improperly shot a citizen of St. Vincent and the Grenadines, injured him badly.”
Thomas said Fergus could no longer jump.
“He can no longer play the games that he used to play. He cannot go into the mountain and work as he used to work, and bring the load down. And this officer continues to be on the force.
“Now we know that we have a serious problem with crime if police officers can engage in criminal activity and get away with it, as is the case with Mohammed Lavia, it’s no example to the citizens.”
Thomas said that Fergus had initially asked that the police force institute disciplinary proceedings against Lavia.
“Nothing in the public domain said that he was ever disciplined. In fact, the police response was to promote him to corporal.
“Another important point that’s worth knowing, when Okeno Fergus was being tried in the Georgetown Magistrate Court, under cross examination, Mohammed Lavia admitted to the court that he had shot other persons before, and persons he had shot had died.
“So, think about the kind of person who you have on the force, who can so wantonly, who can so recklessly, use force against citizens and get away with it.”
Thomas said Lavia was not the only such person on the police force.
He said some officers “who are rapidly going up the ranks are equally aggressive, equally reckless, but for the aggression and their recklessness against ordinary people, they tend to suffer grievously.”
The lawyer said he wanted the public to know that Fergus continues to fight.
“He wants justice, and we are hoping that this time around, the state would move in a positive way to set a positive example by disciplining Mohammed Lavia internally and for the state to bring criminal charges against him because this is not somebody who should be on the police force.
“He was hired to protect and serve, and what he did to Okeno Fergus, as Justice Henry said, clearly, not the kind of model of individual we want on the police force.”
Don’t look for that fiat. Once a police officer supports the ruling party he becomes untouchable