IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CLAIM NO. CV BETWEEN JOHN PHILLIPS DAVID NOEL JOEL MCHUTCHINSON Claimants AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr. Justice Frank Seepersad Appearances 1. Mr Seepersad and Mr Davis For The Claimants 2. Ms Smith and Ms Katwaroo for the Defendant Date of Delivery: 17 th October 2017 Oral Judgment reduced into writing Page 1 of 10

2 1. Before the Court for its determination is the claim filed by the three Claimants where they respectively sought orders for damages for the assault and battery which they claimed were inflicted upon them by Police Officers at the High Court of Justice on the 25 th September, The Claimants case 2. The Claimants were inmates awaiting trial at the Hall of Justice in Port-of- Spain and were kept in a holding cell in the court. After there was a disturbance with another inmate in another cell, the Claimants aver that masked officers entered their holding cell and beat them with staffs, hands, feet, slaps and kicked them for several minutes. Thereafter, they were escorted to the Maximum Security Facility where a Prisons Officer (unknown to them) insisted that they be taken to the Arima Health Facility for medical attention. 3. The Claimants insist that as a result of the treatment meted out to them, they suffered personal injuries. They further pleaded that the aforesaid circumstances gave rise to the entitlement to an award of aggravated and/or exemplary damages. The Defendant s case 4. The Defendant stated that the prisoners were escorted from the Maximum Security Facility in Arouca to the Hall of Justice in Port-of-Spain where they were searched and processed at around 8:39am. After they attended the court proceedings, they were escorted back to the holding cells until about 3:25pm and preparations were made to transfer them back to the Arouca Facility. The Defendants averred that a Cpl Bachan was charged with securing the inmates and that he was in close enough proximity to observe if they had any injuries as alleged. He claimed that he was not aware of any incident involving police officers beating the inmates. 5. Upon arriving at the Arouca Facility, the Claimants complained of being beaten and as a result Prison Officer Gibbs refused to accept them unless they were taken for a medical examination. The 3 rd Claimant then showed Cpl Bachan a small lump on his neck which he perceived to be an old injury and they were then escorted to the Arima Health Facility where they were examined. Page 2 of 10

3 6. In November, 2014 instructions were given to commence an investigation into the allegations of assault. The investigations were conducted by Ag Inspector Sookram who interviewed the Claimants and received reports from the officers who were in charge on the day of the alleged incident. He also reviewed the station diary extracts and concluded that the claims of assault were without merit. 7. The Defendant further stated that the Guard and Emergency Branch and the Task Force are only called in circumstances where there is a riot and in all other circumstances, the Court Process Officers oversee the processing and transport of inmates to and from prison and there was no record in the station diary to the effect that there was any riot or any other circumstance which warranted the dispatch of the Guard Emergency Branch or Task Force. Analysis of Evidence and Findings 8. In support of the Claimants case each Claimant testified, the Court also had the benefit of the evidence of the Medical Doctor Ayesha Serette who prepared the three medical forms which formed part of each of the respective claims of the Claimants. The Defendant called three witnesses: the police officer who accompanied the Claimants from the holding cell at the High Court and into the prison van securing them for transport by Amalgamated Services on the day in question, the Prisons Officer who received the Claimants when they were taken back to the maximum security prison and the senior police officer who conducted an investigation relative to the Claimants claims. 9. Essentially the issue for the Court s determination was fact dependant insofar as the Claimants had an obligation to prove, on a balance of probabilities, that on the 25th September, 2014, they were battered and that they sustained the injuries that were outlined in their respective claims as recorded in their amended statement of case. The Court noted that generally there were no material departures in cross-examination from what each of the Claimants said in their witness statement. The Court firstly considered the nature of the attack that the Claimants said they were subjected to on the day in question. Each Claimant was fairly consistent insofar as they all contended hat they were in a holding cell when 6-10 masked GB officers, entered their cell and proceeded to inflict blows on them for approximately 3 minutes. They all claimed that they did nothing so as to warrant or Page 3 of 10

4 justify this behaviour by the police officers and they further indicated that prior to the officers coming into their holding cell, there was another incident involving another prisoner who was being held in an adjacent cell. 10. The Claimants stated that the attack was for some three minutes, which is rather a long time and the Court felt that it was more plausible to hold that if four people were battered by six to ten police officers, in an attack which involved the use of boots and batons same ought to have resulted in severe personal injury. In that regard, the Claimants each outlined the nature of the injuries to which each said he sustained. John Phillips 11. The first named Claimant John Phillips in his amended Statement of Case said that he sustained multiple soft tissue injuries, welts and pain with swelling about the body in his chest, forearms and hands. He said he had a swollen left hand with visible abrasions, a sprained little finger on the left hand and a wound on the left hand midway between his elbow and hands. In support of his claim, he annexed a medical certificate which was generated at the Arima Health Facility, and same was prepared on the very afternoon of the alleged attack. The Court had the benefit of the oral evidence of the doctor who prepared the report which was illegible and the evidence adduced by the medical officer provided clarity as to the nature of the assessment that she made when she examined each of the Claimants. 12. When the evidence of Mr Phillips is juxtaposed with the evidence of Dr Serette, some inconsistences came to the fore: Pleaded injuries Multiple soft tissue injuries and welts with pain and suffering about the body, inter alia, chest, forearms and hands Medical Evidence of Dr Ayesha Serette Contusions to right posterior chest wall. Air entry equal bilaterally (used stethoscope and found that the air entered the chest equally on both sides), no crepitation (abnormal lung Page 4 of 10

5 sounds caused by fluid in the lung), no rhonchi (no bronchospasms). Swollen left hand with visible abrasions Sprained little finger on left hand X-ray: Nil rib fracture Assessment: soft tissue injury Wound on left hand, midway between elbow and hands Plan: Discharge with Panadol 1g by mouth every 6 hours for 1 week 13. The medical report generated for John Phillip, was not consistent with the list of injuries that he outlined. There was no mention in the said medical report of any wound to his hand or of any sprained little finger. In fact, the evidence of the doctor was to the effect that Mr Phillips suffered from a contusion and she subsequently clarified that this term meant that the skin was unbroken. Her assessment was that there were no abnormalities found in the x-ray and she did not note any substantial swelling or swelling about the body for this Claimant. The Court assessed the Claimant s evidence as against the documentary evidence provided and the Court found that there was a marked difference and contradiction between the injuries which the Claimant claimed he sustained and the injuries that the doctor recorded. This unexplained difference between the medical evidence and the Claimant s assertion fundamentally affected the Court s view of the Claimant s assertion and the Court found as a fat that the Claimant was not attacked in the manner as he outlined and he did not sustain the injuries that he claimed. David Noel 14. The Court next considered the evidence of the second named Claimant David Noel. Mr Noel said that he sustained multiple soft tissue injuries with welts, pain and suffering about the body, inter alia, the right arm and shoulder, one inch laceration on the right arm, shoulder and back, swollen right hand with visible abrasions and visible bruising on the right shoulder. Page 5 of 10

6 15. When compared with the medical report the evidence is as follows: Pleaded injuries Multiple soft tissue injuries / torn tissues and welts with pain and suffering about the body, inter alia, the right arm/shoulder Medical Evidence of Dr Ayesha Serette On examination: nil obvious distress 1 laceration on right arm/ shoulder and back Cardiovascular system/respiratory system/abdominal system: no abnormality detected Swollen right hand with visible abrasions Extremity exam: range of motion right shoulder mildly decreased, abrasion to posterior aspect (superficial skin injury) Visible bruising on right shoulder Assessment: Soft tissue injury, rule out bony injury Plan: Paracetamol 1g by mouth; X-ray right upper limb and review X-ray: no bony injury Assessment: soft tissue injury Plan: Discharge, Panadol 1g by mouth every 6 hours for a week, advice on return. 6:05pm 25 Sept 2014 Page 6 of 10

7 16. Similar to the assessment made with the first named Claimant, the examination by the doctor did not reveal injuries to the extent and magnitude as outlined by this Claimant. The doctor found that there were some challenges with respect to the shoulder and mobility and noted that there was an abrasion in the vicinity of the shoulder. There was no mention of abrasions on the right hand or any medical evidence of a swollen right hand nor was there any finding or assessment by the doctor of any welts about the body. This particular Claimant in his evidence spoke about being in extreme pain and discomfort but the medical report noted that there was no obvious sign of distress and this assessment was made a few hours after the incident allegedly occurred. These differences were material and fundamental and the court was disinclined to accept this Claimant s evidence and found as a fact that he was not attacked as he said nor did he suffer the injuries which he outlined. Joel Mc Hutchinson 17. With respect to the third named Claimant, he asserted that there were multiple soft tissue injuries with welts, pain, bruising and suffering about his body. He said that there was a bump and swelling to the back of his head close to his left ear as a result of which he experienced continuous headaches and discomfort. 18. His evidence juxtaposed with the medical evidence is as follows: Pleaded Injuries Multiple soft tissue injuries and welts with pain, bruising and suffering about the body, inter alia, the hands and feet Medical Evidence of Dr Ayesha Serette On examination: Nil distress. Cardiovascular system/respiratory system/ abdomen: no abnormality detected Bump/ swelling to the back of the head, close to the left ear, as a result the Claimant continues to complain about headaches and discomfort while sleeping. Central nervous system : Glasgow coma scale 15/15- (level of consciousness-fully conscious and alert). Page 7 of 10

8 Nil deficits- no neurological deficits. Check mark on PERTL- pupils were equal and reacted to light. Skin: contusion to left posterior auricular region Nil bony deficit palpable Assessment- minor head injury. Patient was discharged with head injury advice. Advised to return to the general practitioner s clinic in 2 days for a review. Patient was discharged home but advised on return and prescribed Panadol 1g every 6 hrs by mouth as needed. 19. The doctor did not record injuries to the extent or gravity as pleaded though she spoke of some injury to the Claimant s head. When asked by this Court as to her findings as to the age of the injuries that manifested themselves on the Claimants, the doctor said that she made no such recording on the medical certificate. 20. Counsel for the Claimant accepted that the issues before the Court were fact dependent but also invited the Court to consider the non-disclosure by the Defendant of certain reports which were referred to in their evidence but were not produced. The Court was also invited to infer that the failure by the Defendant to call police officers or persons who would have Page 8 of 10

9 been in the vicinity of the cell block at the High Court of Justice when the attack allegedly occurred ought to create some degree of suspicion in the Court s mind. 21. As it relates to the non-disclosure argument, it is with reference to a report which was generated from the police officer who accompanied the Claimants to the Amalgamated vehicle from the cell block and which was given to his superior officers. That report may have served to reaffirm or contradict the veracity of the officer s testimony and while no proper explanation was given by the State as to why that report was not produced, the Court was generally impressed with that police officer s evidence and he struck the Court as being a witness of candour. At the end of the day, his evidence was not germane or critical to the issues that the Court had to resolve since he did not observe the event as alleged by the Claimants and even though he opined that he saw no visible injuries, the time period that he had to undertake any such assessment was rather limited, as he said it took only 80 seconds to travel between the cell and the van. 22. The officer testified that he made no visual assessment of any discomfort evident on the Claimants nor did they communicate any such circumstance to him when he was taking them into the transportation vehicle. The Prisons Officer gave very formal evidence as to the nature of the Claimants complaints and said that he did notice some sign of injury on one of the Claimants but he could not recall the extent of same. Based on the complaints and his observations they were sent to Arima for treatment. 23. With respect to the senior police officer, the Court found that his evidence provided very little assistance in the resolution of the factual issues. While he did an investigation, there is no evidence before the Court which demonstrated that anyone was charged for any incident with respect to these Claimants or that any disciplinary action was taken against any officer. Evidence from officers who might have been present when the actual alleged incident occurred was not forthcoming, but this was not a circumstance from which the Court was prepared to draw any adverse inference. Page 9 of 10

10 24. Ultimately, this case rested upon the resolution of the facts as presented by the Claimants with a determination as to whether or not they established, to the satisfaction of the Court, on a balance of probabilities that they were beaten and sustained the injuries claimed. Having regard to the contradictions between the nature of the injuries claimed and the documentary evidence in the form of the medical certificates and having noted that although they claimed they were beaten for three minutes, the Court felt that the injuries recorded on the medical certificates were not consistent with the extent of the injuries that one would reasonably expect after a sustained three minute attack. The Court found that it was inherently implausible and improbable that each of these Claimants were attacked as claimed or that they suffered the injuries as outlined in the statement of case as the medical evidence simply did not support the positions they advanced. 25. Ultimately, Courts have to determine matters based on the pleaded case and the evidence adduced. On the facts of this case, the Court found that the Claimants did not prove their case on a balance of probabilities and the Court found as a fact that they were not subjected to the attack that they outlined nor did they suffer the injuries claimed and the Court rejected their evidence. In the circumstances, their claim was devoid of merit and same was dismissed. 26. The Claimants were ordered to pay to the Defendants costs assessed by the Court in the sum of $14, FRANK SEEPERSAD JUDGE Page 10 of 10