POLICE CONSTABLE RENNIE LAKHAN NO THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO REASONS

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN SIEULAL RAMSARAN CLAIMANT AND POLICE CONSTABLE RENNIE LAKHAN NO THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO DEFENDANTS BEFORE THE HONOURABLE MR JUSTICE R. BOODOOSINGH APPEARANCES: MR. E. ROOPNARINE FOR CLAIMANT MS. T. MAHARAJ AND MRS. F. ALI KHAN FOR DEFENDANT REASONS 1. By his amended claim form and statement of case of 29 September, 2010, the Claimant claimed against the Defendant for false imprisonment, malicious prosecution and for certain constitutional relief. The matter had been case managed. Directions were given for witness statements which were filed and exchanged. 2. The Defendants have filed an application that this claim should be dismissed based on a preliminary point at pre-trial that the claim and the evidence in support does not support a claim for the causes of actions identified. It should, therefore, be dismissed without need for a trial. That the court has the jurisdiction to do this at this stage has Page 1 of 6

2 not been disputed. The defendants say this is an appropriate time given that the witness statements are filed and the court can examine the case the claimant seeks to mount on the pleadings and evidence at its highest. 3. The short background facts as can be gleaned from the witness statements and the relevant supporting documents are as follows. 4. The Claimant had a common law relationship with one Hazel Ann Singh. They have a child together. On 24 August, 2007, a protection order was made against the Claimant to cover the period up to 23 August, On 24 June, 2008 Police Constable Lakhan laid a complaint on oath against the Claimant for breach of that protection order contrary to section 20(1) of the Domestic Violence Act No.27 of This matter was listed before the Rio Claro Magistrate. He was granted bail on this charge. It is alleged that the Claimant had breached the protection order by setting fire to his common law wife. 5. On 27 August, 2009, the Claimant and his common law wife were at the Court in relation to PC Lakhan s charge. 6. It appears that someone alleged an incident occurred between the Claimant and his wife that he had pulled her hand. A security officer made this observation. This was brought to the attention of the Magistrate. 7. There is divergence on the witness statements of both sides about what actually transpired. Page 2 of 6

3 8. The Claimant is alleging that he was at Court early. His wife came and sat next to him. 9. They had previously gotten back together, and the night before they had discussed that she should not continue the criminal matter the next day since they were now living as husband and wife. While they were sitting, the Police Prosecutor called Miss Singh outside. She waved to the Claimant to come outside. He then went outside and held her hands and told her not to leave the premises as she had come to revoke the statement she had given. 10. While they were conversing, PC Lakhan and the Police Prosecutor came up to them. PC Lakhan arrested the claimant and put him in a cell in Court. Then his common law wife, Miss Singh, came in and went to the witness box and spoke. Next, a Court security officer came and spoke. The claimant was then asked to come out of the cell (presumably by the Magistrate) and was asked certain questions. The Magistrate then indicated he was found guilty and, according to his witness statement, my bail was revoked and advised of my rights to apply to Judge in Chambers for bail. 11. The claimant said he was not tried for the offence he had committed. He said the Magistrate never asked him if he had breached the conditions of his bail. 12. That then is the Claimant s case at its highest. 13. I have had the opportunity to examine the Notes of Proceedings which were put in by the Claimant. 14. What these notes clearly show is that the Magistrate conducted an enquiry into whether the Claimant s bail should be revoked given what had been reported. There Page 3 of 6

4 was no charge. Certainly, PC Lakhan never laid any charge. Although expressed as having been found guilty, clearly the Magistrate having conducted an enquiry, decided to revoke the Claimant s bail. There was no criminal charge laid. 15. This is further supported by the Magistrate s advice, as required by the law, that he may apply to a Judge in Chambers. This is for a revision of bail. It could not be for any other purpose. 16. The Claimant never applied to a Judge in Chambers. 17. The Claimant, on the evidence which he intends to advance, has not given any particulars of any charge laid or that such a charge was determined in his favour. The ingredients needed to prove malicious prosecution, therefore, fail from the outset. This is clear from the notes of evidence. This was as much accepted by the Claimant s attorneys who in a pre-action letter written on 12 January, 2010 at paragraph 5 noted: As a result of the forfeiture of bail our client was imprisoned from 27 August 2009 and was released on the 20 November, The next matter is the imprisonment. His denial of liberty was occasioned by a judicial act. The revocation of bail is a matter within the judicial discretion of the Magistrate. Neither the Police Constable nor the Attorney General under Section 4 of the State Liability and Proceedings Act Chapter 8:02 can be held responsible for this. The definition of servant of the State under Section 2 of the Act specifically excludes a Magistrate from being the servant of the second Defendant. In any event, the first Defendant is not a proper party. He did nothing that can amount to a claim on behalf of the Claimant. Page 4 of 6

5 19. What was complained against was the action of the Magistrate in revoking bail and in the process she engaged in to come to that decision. The Claimant s remedy, as noted by the defendants attorneys may have been in the nature of a claim under Section 5(1) of the Magistrates Protection Act, Chapter 6: The last matter of note is perhaps what may be considered the constitutional dimension. The claimant alleges breach of his constitutional rights in that he was denied his liberty without due process pointing to the manner in which the Magistrate conducted the enquiry. 21. The Defendants have submitted the claimant came by the wrong process. Whether this is correct or not, I do not think that the Claimant could proceed on this ground in any event. First, there is an evidential hurdle. Second, constitutional relief is not generally appropriate where a person had an alternative method to obtain relief. In this case it was by applying to a Judge in Chambers to review the revocation of bail of which he did not avail himself. Had he reviewed the revocation of bail, he would have been entitled to put before the Judge all the circumstances he says he was denied the opportunity to do before the Magistrate. The Judge has full power to alter the decision of the Magistrate. This contention that he did not get the opportunity to give side, in itself, is suspect because the Magistrate did call on him to give evidence. 22. I was referred by the claimant s attorney to the case of Ramesh Maharaj v the Attorney General of Trinidad and Tobago (No. 2) (1978) 30 WIR 310. That case in my view is clearly distinguishable. There, the Judge had failed to inform the applicant of the nature of the contempt of which he was charged and for which he was committed and imprisoned. In that case, there was a clear breach of natural justice principles in circumstances when the applicant was in danger of being convicted of contempt. Page 5 of 6

6 23. The instant matter was a matter of review of bail. Different considerations apply to the grant and determination of bail. There is no absolute right to bail. Bail is discretionary given all the circumstances presented. A Magistrate s discretion is far wider in considering a bail application than a court in considering criminal contempt. The Magistrate is entitled to decide on credible information. In this case she relied on the observations of a court security officer even if the evidence of the Claimant s common law wife is discounted. She also heard from the claimant. Given the nature of the allegations made (setting fire to the claimant s common law wife) it would have been prudent to conduct an enquiry into the report made. 24. In any event, based on how the case has been pleaded, this Court would be unable to grant constitutional relief even if the Claimant s evidence is accepted in full. 25. In these circumstances, the Claimant s case is bound to fail. There is no need for a trial. The claim is dismissed without the need for a full trial. 26. The claimant must pay the defendant s costs conservatively assessed in the sum of $7,000. at this pre-trial review stage. Ronnie Boodoosingh Judge 23 February 2012 Page 6 of 6