IN THE HIGH COURT OF JUSTICE

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV BETWEEN MUKESH LUTCHMAN Claimant AND AIRPORTS AUTHORITY OF TRINIDAD AND TOBAGO Defendant Appearances: Mr Mc Master and Mr Roper for the Claimant Mr Toney and Ms Toney for the Defendant Date: 16 June 2016 REASONS (Edited Oral Judgment) 1. This claim arises from an incident at the Piarco International Airport on Sunday 6 February, 2011 at about 4.45 to 4.50 a.m. This claim was brought in June 2014 by the Claimant. In his claim he says that on that morning, he, in company with two cousins, Reinzi Ali and Kristan Ali along with his uncle, Faizul Ali and friend, Page 1 of 12

2 Shayam Sagram, in a vehicle driven by Shayam, went to the Piarco Airport. They were on their way to make a purchase at the KFC outlet located at the Food Court of the Airport. 2. On arrival at the Airport, the Claimant says he came out of the vehicle along with Reinzi Ali and Faizul Ali. He walked in the direction of the Food Court. They were going to seek permission to park. The officers refused to grant permission and told the driver to move. He complied with the officers instructions. As the Claimant was walking away, he was approached by two Security Officers. They were dressed in Estate Constable uniforms. One of them, Marvin Ferguson, shouted at the Claimant in an aggressive tone instructing him not to enter the terminal and to leave the Airport. The Claimant asked about the reason saying he had done nothing unlawful or anything impermissible. Officer Ferguson told him to leave for using obscene language. The Claimant informed Officer Ferguson that the person or persons who had used obscene language had driven off in a car and that did not concern him. Notwithstanding that he repeatedly told Officer Ferguson that he did not use obscene language and he ought not to be prevented from using the facilities. The Claimant told him he was entitled to access the Food Court as a patron and that he would leave for the avoidance of a dispute but he needed to pay with his credit card which required his signature. 3. Officer Ferguson along with another Officer Smith then started to threaten the Claimant and instructed him to leave. The Claimant continued to insist he did nothing wrong and he enquired the reason he was being required to leave and was told by Officer Ferguson that I is a fucking police and I say so, and yuh better leave before I lock up yuh mother cunt here tonight. The Claimant informed the Officers that he was a member of the Coast Guard and he wanted Page 2 of 12

3 to speak to a senior officer. Officer Ferguson told him it have no fucking Coast Guard thing here and they would make an example of him. Ferguson advanced to him, held him by the throat, pushed him at a nearby bar counter and punched him repeatedly. Several other officers then joined Ferguson and Smith in grabbing and punching the Claimant. They kicked him, punched him and while he was on the ground, he was forced to his knee. One of the Constables forcefully drove his knee to the back of the Claimant s neck and he was prevented from breathing properly. The altercation continued with the Claimant trying to tell the Estate Constables that he was a member of the Coast Guard and they replied in an aggressive manner that there was no Coast Guard thing here and he was going to get charge. There was additional obscene language used. There were several travelling passengers looking on. 4. Reinzi Ali was in close proximity and asked them to desist. He was chocked and told to move otherwise they would carry him down too. One of the officers placed his knee on the Claimant s neck while putting hand cuffs on the Claimant. The handcuffs were placed tightly and he later had to seek medical attention. Obscenities and abuses were hurled at him by the Officers. The Claimant was instructed to stand up. He was taken to a waiting pick-up truck driven by another Estate Constable. They pushed him in the rear door of the truck causing him to hit his head. 5. Upon the Claimant s arrival at the Piarco Police Station, the Estate Constable slammed him against a wall. At the Piarco Police Station, he was placed in a prisoner s cell, he made repeated request to speak to a Senior Officer of the Coast Guard. About two hours after, he was allowed to speak to a member and he informed Chief Petty Officer Haynes of his detention. He was subsequently charged for assault on Estate Constable Mervyn Ferguson, resisting Junior Smith Page 3 of 12

4 in the execution of his duty, the use of obscene language to the annoyance of persons in the said place, and the use of violent and threatening language to the annoyance of persons. He was granted bail later on when a Justice of the Peace arrived. He lodged a report of an assault. He appeared before the Magistrate on 7 September. 6. It is not in dispute, that the charges which were brought against the Claimant were dismissed at the Magistrates Court on the failure of the Officers to be present when the matter was called for hearing. The matter was not determined on the merits of the claim, but that is not necessary in respect of a claim such as this. There is a claim for damages, exemplary damages as well as a claim for aggravated damages and vindicatory damages. In support there was a medical report submitted from the North Central Health Authority which details certain injuries to the Claimant. 7. The Defence which was filed by the Defendant and amended accepted that the Claimant was taken into custody by Estate Constables in the employ of the Defendant and that there was an incident on 6 February, 2011 at about 4:50 a.m. at the Piarco International Airport in the vicinity of the Pizza Boys bar. Their version however is substantially different. 8. The Defendant s version is that the Claimant exited the vehicle. He was unable to stand up for a while, and with slurred speech and smelling of alcohol, he used loud obscene language. When told by Estate Constable Smith he was under arrest for using obscene language he resisted him and assaulted Estate Constable Marvin Ferguson to prevent his lawful detention. The Defendants said through the Officers in their employ they had reasonable and probable cause to Page 4 of 12

5 come to the conclusion that he had committed an offence. In the particulars of the grounds of reasonable and probable cause the Defendants case was that the Claimant having difficulty standing up, with slurred speech, and said in a loud tone of voice in the vicinity of the Pizza Boys bar at the Piarco Airport like I fucking drunk father, I can t even fucking stand up. When told by Estate Constable Smith about his use of obscene language he said Don t worry boss, I is fucking police. Further, when told by Constable Ferguson that he was not allowed to use the Airport facilities because of his use of obscene language under the Airport Authorities Act, he said Boss I is police and you can t stop me from going for KFC, fuck you and your fucking Act. He was informed by Officer Smith he was under arrest, he started resisting, he grabbed the shirt collar of Estate Constable Smith, a struggle ensued and they fell to the floor. Other Officers, Austin and Boyke, came forward and assisted in subduing him. He was taken in a marked security vehicle and while in the vehicle the Claimant continued to use obscene language and made threats to the Officers. They accept they preferred the charge. They accept that the charges were dismissed on the second hearing on 11 July, 2011 when both Complainants arrived late for Court. Those were the rival contentions in respect of the claim. 9. The critical issues for determination were whether there was an absence of reasonable and probable cause in the prosecution of the Claimant and whether the Prosecutors were actuated by malice. As indicated, it is not in dispute the charges were preferred and dismissed. In this contest on the disputed facts two witnesses were called on behalf of the Claimant, the Claimant himself along with Reinzi Ali. Three Officers were called who would have been present at the scene. The Court had to compare the versions of both sides. The burden is on the Claimant to prove his case on a balance of probabilities. Page 5 of 12

6 10. In his witness statement filed on 27 February, 2015 the Claimant, Mr Lutchman, essentially gave the version which he had set out in his pleadings. There were certain additions which were made in his witness statement. For example, at paragraph 6 he indicated that the driver of the vehicle was the one who used obscene language as he drove off, shouting all yuh bring real fucking chicken here, I real hungry but he had proceeded to walk in the direction of the Food Court to make his purchase and then he indicated that Officer Ferguson came forward and the melee started consistent with what he had pleaded. In support, he called Reinzi Ali whose version was essentially in similar terms. 11. Officer Ferguson gave evidence. He had been employed with the Authority for eleven years. He was stationed there on duty. The evidence he gave essentially followed the Defence which was filed as well. One important fact which was set out in the witness statement was that one of the men had exited the vehicle through the rear driver s side window and shortly after, fell to the ground, and that that person was later identified as the Claimant. Officer Smith and Boyke, as indicated in their witness statement, essentially carried on with that version. 12. Having summarised the both versions including the cross examination I turn now to my main findings and reasons. I found it strange that the Claimant would be pounced upon for no reason in that he did not do anything wrong to the Officers of the Defendant. They did not know him before, and if his version is accepted, he had done no wrong. If anything, the driver of the car had used words against the Officers. I considered that there was no good reason advanced by the Claimant to conclude that not one, not two, but a group of Officers suddenly acted in concert together to deny the Claimant entry to the Airport and then assault him and then maliciously prosecute him. The Claimant said the driver of the vehicle Shayam had used obscene language to the Officers. They had been Page 6 of 12

7 speaking to him. I find it incredible that they would have chosen to pick on the Claimant if another person had used obscene language. Why not divert their energies to the driver who had committed an offence instead of the Claimant? 13. Coming back to the Claimant s version, he chronicled the following facts as having taken place. He exited with his cousin. He observed the Security Officers. Reinzi Ali walked in the direction of the Security Officers. He saw him having a conversation with the Officers. He saw the Officers approach the car. They had a conversation with Shayam Sagram. Sagram then drove off and as he drove off he shouted the words which he set out. He then proceeded to walk in the direction of the Food Court to make his purchase. As he got to the vicinity of the entrance, he was approached by two Security Officers and then Ferguson shouted to him don t go inside, all yuh get out of the Airport. It was at that point that the altercation essentially picks up from there. 14. I found that version of facts as set out by the Claimant, to be implausible that the Claimant having done nothing at all, would simply have been picked on, when as far as the Officers have been concerned, there was someone involved who had driven off. 15. To accept the Claimant s case would mean that the Defendant s witnesses concocted on the spur of the moment a somewhat incredible story. Among the particulars of this incredible story, would be that he alleged that he came out of the back window. I found that to be such an unusual event, that it would be strange for Officers making up a case to invent a fact such as that. His behaviour suggested that he was under the influence of alcohol from what the Page 7 of 12

8 Officers had said. There would have been no reason to make up that he jumped out of the back window. 16. On the other hand, considering the version of the Defendant s witnesses, it is clear that the behaviour they described would have attracted their attention to him. As indicated, one contest on the facts is how did the Claimant exit the vehicle. I find it odd that the Defendant s witnesses would make up a story as incredible as the Claimant coming out of the vehicle through the back window of the Cifero car. It would have been unnecessary to make up such a far reaching story and for three persons to swear to this. Further, such an exit from the vehicle coupled with the observation about his gait and his language would have likely motivated Officers to approach him and to caution him. 17. One fact also asserted by the Claimant, is that the Officers behaved in this manner in the open in front of many passengers who were using the Airport facilities. I find it incredible to believe that the Officers would act as the Claimant had suggested in the plain view of so many other users of the Airport. It is more likely, in my view, that the Claimant behaved in the manner they described and the Officers therefore acted together to subdue him and arrest him. In those circumstances, they would have used reasonable force to do so, or they would have been entitled to used reasonable force to do so. 18. I noted as well, that there were other persons with the Claimant besides Reinzi Ali. Bearing in mind the burden rest on the Claimant to prove his case, I find it curious that others have not come forward. There was the cousin Kristan Ali, there was the uncle Faizul Ali and there was also the driver Shayam Sagram. Page 8 of 12

9 19. While Sagram and Kristan Ali would have been in the vehicle and the evidence is that at some point they drove off, the uncle Faizul Ali, according to the Claimant, had exited the vehicle. He would have therefore been in a position to see everything. Why was he not called or a version given from him? Even the other two occupants might have been able to confirm the particulars in terms of the approach by the officers, the use of language and that the Claimant himself was not involved in any improper behaviour. They would have been able to confirm he had not done anything wrong. 20. It also seemed odd to me, that they did not remain to check on him. I infer from that that their versions would not have supported the Claimant s case. As has been very ably pointed out in the submissions of the Claimant s attorney, there were inconsistencies in the evidence of the Defendant s witnesses. Some of these have been pointed out in submissions by Counsel for the Defendant in their written submissions and I had to consider these inconsistencies. However, they are in my view the result of different witnesses seeing the events from different perspectives and vantage points and also that witnesses would sometime recall the sequence of events in different ways. I did not find that these inconsistencies undermined their credit or reliability in any significant way. The Officer who, in my view, was most challenged in cross examination in terms of his evidence was Officer Colin Monroe who turned out not to be an Officer who was present on the scene. So the significant inconsistencies and answers given by Officer Monroe in my view, did not impact on the evidence given by the other Officers Smith, Boyke and Ferguson. 21. I therefore did not find that the inconsistencies undermined their credit or reliability in any significant way. This is in particular in the context that the preaction protocol letter was sent on 8 November, 2013, two and one-half years Page 9 of 12

10 after the incident. This was also two years and two months after the charges were dismissed. Memories fade and it is not inconceivable that on collateral matters honest witnesses will vary. 22. The context of the events also has to be considered in terms of the country where we live. Is it more likely the Claimants and his party had been drinking? They were coming from a birthday party for a relative. This was 4:50 in the morning, a time when most people may be safely ensconced in their homes. They chose after the party not to go to their homes but to go for something to eat from KFC which ordinarily would not be something entirely unknown to do, but this would be an unusual hour for that to happen. Living where we live, these circumstances more suggest that they were on some kind of jaunt, or to use a local expression, they were on a beat. 23. This makes it reasonable to accept what the Officers said that the Claimant appeared to be under the influence of alcohol and said the words he said after coming out of the vehicle. It seems quite plausible, therefore, that they may have, and in this case, the Claimant especially, had been acting in a boorish manner which would have naturally attracted the attention of the Airport Security Officers. It is to be noted that the Claimant himself accepts the driver of all persons made an obscene remark. As indicated, I find it implausible that the Claimant would have been acting in a normal manner and would have been picked on by persons who did not know him ahead of someone who had been acting improperly. Page 10 of 12

11 24. The Officers said that they were all rowdy. It is not unreasonable to expect that they would focus on the one causing the most disruption and annoyance which from their evidence was the Claimant. 25. The injuries noted by the Doctor are in my view consistent with a robust struggle. In my view, the Officers were acting lawfully in trying to arrest the Claimant. I find there was a struggle. I do not find that they acted by using more force than was necessary. The fact that Officer Ferguson was himself injured is also consistent with the evidence of the Officers of how the Claimant was arrested. 26. I have looked at the injuries which the Claimant sustained, and those injuries in my view, are quite consistent with a struggle in the context that the Officers have indicated. Having preferred their version, I find as a fact, that the Claimant did come out of the back window of the vehicle. This drew attention to him; he used obscene language; Officers went to him and cautioned him; he started to use more obscene language; he made various remarks at the officers; they had to subdue him; he was arrested and taken. He was lawfully detained while charges were processed. 27. It is likely that more than one of the Claimant s party were acting in an obnoxious manner of which the Claimant was the most vocal and attention drawing. It seems reasonable that the Defendant s witnesses would have acted based on this. 28. The fact that the defendant s witnesses were late to Court and the Complainant in particular and the charges were dismissed do not in my view suggest that they Page 11 of 12

12 were actuated by malice or that there was an absence of reasonable and probable cause. 29. The Officers in my view had reasonable and probable cause to lay the charges which they did. While these charges may not have each been sustained ultimately, the officers laying the charges cannot be said to have acted maliciously in all the circumstances. 30. Accordingly, for these reasons, the Claim is dismissed. 31. Costs follow the event and in the circumstances the Claimant must pay the Defendant s costs in the sum of $14, Ronnie Boodoosingh Judge Page 12 of 12