IN THE HIGH COURT OF JUSTICE BETWEEN AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO JUDGMENT

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV No BETWEEN ANINO GARCIA Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before The Honourable Mr Justice Vasheist Kokaram Appearances: Mr. G. Ramdeen for the Claimant Mr. Sieuchand, Ms. Golan and Ms. R. Tang Pack for the Defendant JUDGMENT Introduction: 1. This is yet another claim of unjustified violence meted out towards a prisoner in this country s prison system. This Court is being invited by the Claimant, inmate Anino Garcia, to join the chorus of strong condemnation made by our courts on the use of excessive force in our nation s prisons. As was observed by Justice Jones in Bartholomew v AG, CV No , the use of excessive force to contain a situation in the prisons is not the answer. The use of excessive force merely serves to aggravate a bad situation and set that time bomb ticking. Those observations ring true to contemporary views on the prison system and its ability to administer justice. In a recent Report of the Commission on Safety and Abuse in American prisons, the Commission observed: 1

2 What happens inside jails and prisons does not stay inside jails and prisons. It comes home with prisoners after they are released and with corrections officers at the end of each day s shift. When people live and work in facilities that are unsafe, unhealthy, unproductive, or inhumane, they carry the effects home with them. We must create safe and productive conditions of confinement not only because it is the right thing to do, but because it influences the safety, health, and prosperity of us all We must remember that our prisons and jails are part of the justice system, not apart from it In R v Fryer [2002] 2 Cr. App. R. (S.) 122, Justice Newman in the context of a criminal assault underscored the unique role of the Prisons Officer, his duty to the prisoner and the implications of the breach of trust occasioned by an assault of an officer on a prisoner: There may be some benefit in this Court, spelling out, in the context of this case, what breach of trust actually means. It does not simply mean protection of the prisoner, and a breach of trust to the prisoner, who whilst in prison is entitled to receive protection that the law provides him with from prison officers. It is a breach of trust, so far as the responsibilities of the prisons officers are concerned, to society generally. The damage does not stop with the damage such as it may be to the prisoner. The damage is to the fabric of the prison system, to the proper administration of the prisons, to the need for those who are in prison, and for those who regard the prison system as playing a significant social role, to have confidence in it. Those who are in prison are not to be abused in a way which is likely to undermine yet more their alienation from society. 3. In our prison system where there is an alleged breach of discipline or acts of misconduct by inmates, there are mechanisms in place to deal with such infractions under the Prison Rules. A prison system ought not to breed violence by perpetrating further violence on the prisoners under the care of the prison authorities. At one end of the spectrum such violence creates a cycle of violence where violence begets violence. At the other end of the spectrum, such use of excessive force exposes the State to liability for common law damages as it has done in the present claim initiated by inmate Anino Garcia, the Claimant. 4. Mr. Garcia s claim is for damages, inclusive of aggravated and exemplary damages, for assault and battery arising out of the use of force on 21 st May 2009 by Prisons Officers against him in cell #158 located in division H Division, Maximum Security Prison, Golden Grove. There is no dispute that the Prisons Officers Trinidad and Ramsingh used their regulation staff to subdue the prisoner. It is not in dispute that the alleged assault arose as a result of Mr. Garcia having in his possession a prohibited object namely a cell phone, which he attempted to conceal by throwing it through the bars of his cell window. The very narrow dispute of fact is to determine whether it was Mr. Garcia who initiated an 1 Gibbons and Katzenbach: A Report of the Commission on Safety and Abuse in America s Prisons, Vera Institute of Justice, June 2006, pages paragraph 10. 2

3 unprovoked attack on Officer Trinidad and who was therefore forced to defend himself, or whether it was the officer who initiated the beating of Mr. Garcia without lawful excuse. It is a question of fact to be resolved on an assessment of the oral testimony of the Claimant and the officers for the Defendant. 5. In assessing the credibility of the respective witnesses, I have examined their respective testimony against their statements made in their respective statements of case, the contemporaneous documents and their cross-examination. In my final analysis, I have found the Claimant a credible witness, who vividly described the attack and was unshaken in cross-examination. His version of the assault and injuries sustained was corroborated by the accident report and infirmary report which were tendered into evidence without objection and the evidence of the officers themselves. Conversely the Defendant albeit stringing together a band of witnesses, found itself with testimony that emerged unreliable, inconsistent and conflicting. I got the sense that the main activists in the beating, Officers Trinidad and Ramsingh were deliberately misleading this Court or withholding facts to distort the truth and make it appear that Mr. Garcia was the aggressor. Even if he was, an attack as it was, eventually revealed by three officers on this one prisoner was wholly out of proportion to the offences of refusing to obey the instructions of an officer and possession of a prohibited article. 6. In the circumstances there will be judgment for the Claimant against the Defendant for damages for assault and battery. I have assessed those damages in the sum of $45, inclusive of aggravated damages and exemplary damages in the sum of $20, Prisoners civil rights 7. In spite of imprisonment, the prisoner retains all civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] 1 A.C. 1 at 10. Convicted prisoners do not forfeit all rights to the protection of their fundamental human rights and freedoms guaranteed by the Constitution, even though "[l] lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights": Price v Johnston (1948) 334 US 266, The common law of trespass to the person applies with equal force to prisoners. It is trite law that the burden of proof in trespass to the person lies with the Claimant to establish the interference with his person by the Defendant. It is then for the Defendant to establish some justification or defence. In the Defendant s written submissions it is accepted that Officers Trinidad and Ramsingh aimed blows with their batons on the legs of the Claimant. Given the admission of the battery in the defence, the onus of proof is on the Defendant to establish circumstances amounting to self-defence. In this regard a Defendant must establish that: (i) his belief that he had to act in self-defence was honest and reasonable, even if it was a mistaken belief; and (ii) having regard to all the circumstances of the case, including the fact that the action was taken in the heat of the moment, the action taken by him in self-defence was reasonable in that no more force was used than was necessary: 3

4 Neil Budhoo v Allan Campbell HCA No. S-2355 of 2004; CV and Bartolomew v AG. See also Clerk v Lindsell on Torts 20 th ed paragraph 30-02: It is lawful for one person to use force towards another in defence of his own person, but this force must not transgress the reasonable limits of the occasion, what is reasonable force being a question of fact in each case. At the end of the day this is a question of fact for my determination. The issues: 9. The simple issues of fact that therefore fall for determination in this case are: (a) whether the Claimant attacked Officer Trinidad; (b) whether Officer Trinidad and the officers of the State used reasonable force in the circumstances to subdue the Claimant; and (c) what was the extent of the injuries sustained by the Defendant. If the officers used unreasonable force the Court must further determine the appropriate award for damages. The Assault and Battery: 10. The uncontested facts surrounding the incident are as follows: In the afternoon of 21 st May 2009, the Claimant was ordered out of his cell by Prisons Officer Trinidad. Two other inmates in the cell complied with the order, but the Claimant did not. He was seated on the uppermost bunk in the cell. The Claimant threw a cell phone from his waist through the window of the cell into the yard. A fight subsequently broke out between the Claimant and Officer Trinidad when Officer Ramsingh also became engaged in the fight. The officers had drawn their regulation batons and had begun beating the Claimant. After the Claimant was subdued, Officer George observed the Claimant was bleeding and escorted him immediately to the infirmary for medical attention. The medical report 11. The accident report produced by the Defendant revealed the following injuries: STi to face nose bleed, pericerebral haematoma STi to head. His injuries were cleaned and dressed and an ice pack was administered. He was given medication for his pain. There can be no dispute that the Claimant suffered injuries at the hands of the Prisons Officers, the extent and gravity of which was downplayed by the Defendant s witnesses but even they admitted to significant injuries. For the very least a fracas occurred in cell #158 which resulted in the Claimant being sent for immediate medical attention, with injuries to the face, bleeding from the nose and a hematoma to his head 2. What is significant is that the 2 The Claimant pleads in his statement of case that he suffered the following injuries: (a) Welt marks about the Claimant s body; (b) Severe swelling around the Claimant s right eye; 4

5 injuries are obvious injuries which can be ascertained from a routine inspection of the Claimant. This is significant as I proceed to analyze the various versions of the incident. The pleadings: 12. In the Statement of Case the Claimant contends- 3. On or about the 21 st May 2009 at approximately 5 p.m. the Claimant was ordered out of his cell by Prisons Officer Trinidad. The Claimant informed the officer that he needed some time to put on his jersey before he came out of his cell. The officer used obscene language towards the Claimant, entered the cell of the Claimant, head locked the Claimant and dragged the Claimant [sic] of his bed causing the Claimant to fall of [sic] the bed unto the ground. The said officer then started to assault and beat the Claimant about his body with his baton and by kicking, cuffing and slapping the Claimant about his body. While the Claimant was being assaulted and beaten by Prisons Officer Trinidad another officer who the Claimant knew as Prisons Officer Hamilton also began to assault and beat the Claimant with his riot staff and by kicking and cuffing the Claimant. 13. In its Defence, the Defendant contended that Prisons Officer Trinidad was involved in an incident with the Claimant, whereby he hit the Claimant with his regulation staff. The Defendant also pleads that the said incident occurred as a result of the Claimant s actions and his behaviour after he was found to be illegally in possession of a cell phone during a search of his cell. The Defendant further pleads that the hitting of the Claimant was justified, reasonable and in defence of Prisons Officer Trinidad. The Defendant denies that Prisons Officer Hamilton was involved in the said incident. The Defendant s version of the assault is contained in paragraph 3(d) to (j) inclusive of its Defence. As Prisons Officer Trinidad was attempting to retrieve the said phone, the Claimant attacked Prisons Officer Trinidad by physically assaulting and beating him causing him to fall. While Prisons Officer Trinidad was on the ground the Claimant continued to assault and beat him. Prisons Officer Trinidad then got up and a struggle ensued between him and the Claimant. Prisons Officer Trinidad attempted to defend himself and during the course of the struggle, he was forced to draw his regulation staff to defend himself and subdue the Claimant. Prisons Officer Trinidad used no (c) Hematomas about the Claimant s body; (d) Contusions about the Claimant s body; (e) Tenderness about the Claimant s body; (f) Soft tissue injury about the Claimant s body; (g) Passing of blood in the Claimant s urine and stool; (h) Loss of sight in the Claimant s right eye for one week subsequent to the beating; (i) Contusions and Haematomas to the Claimant s face; (j) Large bruises about the Claimant s body; and (k) Severe swelling about the Claimant s body. 5

6 more force than was reasonably necessary in the circumstances to defend himself and to subdue the Claimant. The Claimant continued to behave in an aggressive manner towards Prisons Officer Trinidad but he was eventually removed from the cell. After the Claimant was removed from the cell, other Prisons Officers conducted the search of his cell and found a number of unauthorized items therein. 14. In its written submission the Defendant contended that the assault took place this way: (a) While the other inmate was en route to return the cell phone, the Claimant, who was on the top bunk near the window about an arms length away from Prisons Officer Trinidad, elbowed the Prisons Officer in his face and pushed him away; (b) A struggle ensued between Prisons Officer Trinidad and the Claimant and both persons fell off the bunk and on to the ground; (c) Prisons Officer Trinidad got up and the Claimant continued to behave in an aggressive manner and kicked the Prisons Officer on his lower legs continuously; (d) Prisons Officer Trinidad withdrew his regulation staff and struck the Claimant a few times on his legs in an effort to subdue him and Prisons Officer Ramsingh also came to his aid and assisted in subduing the Claimant. The evidence 15. The Court heard the oral evidence of the Claimant. For the Defendant, the following officers gave their evidence: Rajnauth Lutchman, Richard Trinidad, Ashton Ramsingh, Tristian Diaz, Samuel George, Christian Hamilton and Kendell Barrington. The following documentary evidence was also tendered and considered by the Court: A copy of an investigation statement made by Prisons Officer Trinidad and dated May 22 nd 2009, which said copy of an investigations statement is annexure A to the witness statement of Richard Trinidad filed on March 29 th A copy of an investigations statement made by Prisons Officer Ramsingh and dated May 22 nd 2009, which said copy of an investigations statement is annexure A to the witness statement of Ashton Ramsingh filed on March 29 th 2010; A copy of an investigations statement made by Prisons Officer Diaz and dated May 22 nd 2009, which said copy of an investigations statement is annexure A to the witness statement of Tristian Diaz filed on March 29 th A copy of an investigations statement made by Prisons Officer George and dated May 22 nd 2009, which said copy of an investigations statement is annexure A to the witness statement of Ashton Ramsingh filed on March 29 th A copy of an inmate s statement made by Kendall Welch and dated May 22 nd 2009, which said copy of an inmate s statement is annexure A to the witness statement of Christian Hamilton filed on March 29 th A copy of a medical statement in respect of the Claimant and dated May 21 st 2009, which said copy of a medical statement in respect of the Claimant is annexure B to the witness statement of Kendell Barrington filed on March 29 th

7 A copy of a medical statement in respect of Prisons Officer Trinidad and dated May 21 st 2009, which said copy of a medical statement in respect of Prisons Officer Trinidad is annexure C to the witness statement of Kendell Barrington filed on March 29 th A copy of an accident report in respect of an incident involving the Claimant refusing instructions and striking a prisons officer, which said copy of an accident report is annexure B to the witness statement of Samuel George filed on March 29 th 2010 and also annexure A to the witness statement of Kendell Barrington filed on March 29 th A copy of a report dated May 22 nd 2009 made relative to the assault on Prisons Officer Trinidad by the Claimant and containing statements from several prisons officers and Star Convict Welch and an accident report, which said copy of a report is annexure A to the witness statement of Rajnauth Lutchman filed on March 29 th A copy of Charge Book entries showing where charges were laid against the Claimant, which said copy of Charge Book Entries, is annexure B to the witness statement of Rajnauth Lutchman filed on March 29 th The evidence analyzed 16. In my view the Claimant s evidence was unshaken, reliable and credible. Under crossexamination, he gave a vivid account to this Court of how the assault took place. He used the witness box to demonstrate the size of the bunk on which he sat and by various postures which he adopted for the Court s benefit he re-enacted for the Court, the manner in which the incident occurred. The Claimant s demonstration was instinctive and I did not get the impression that it was contrived. By his account it was Officer Trinidad who grabbed him at his neck and was the aggressor who sparked the incident. This led to both of them struggling and rolling off the bed, when another officer who was standing outside of the cell, entered and began to administer blows on the Claimant. The Claimant was a frank witness and where there were matters adverse to him, he candidly admitted it 3 : It is after the cell phone was thrown out of the window that the fight occurred between Officer Trinidad and the Claimant which eventually led to the other officers joining in the fracas. To resolve the dispute, the court must unravel the respective versions and examine in almost minute detail, frame by frame the picture that emerges from the witnesses testimonies. The cell phone: 17. It is undisputed that the cell phone was a prohibited item. The Claimant should not have had that in his possession and it is an item that is liable to be seized. Clearly in cross- 3 Is that the only reason you did not comply with the order? No, that was not the only reason. 7

8 examination the Claimant acknowledged this. The Defendant also acknowledged this in its defence and examination-in-chief of Sergeant Lutchman and Prison Office Samuel George who deposed to the fact that a number of items were found in the cell and handed over to the Supervisor. The cell, it was discovered, was virtually a small appliance store where a number of items were recovered including 3 cell phones, batteries, sim cards, chargers, headsets, lighters, razors, cigarettes and headsets. There was therefore a motive for the Claimant to dispose of the cell phone or conceal it from Officer Trinidad and equally a motive for Officer Trinidad to retrieve it. Consistent with this in his evidence in chief, Officer Trinidad stated: I then observed the Claimant trying to conceal an object in his waist. I used the ladder attached to the single bunk to get unto the other bed. I then observed the Claimant draw the object from his waist and throw it out the window. The object appeared to be a blue cellular phone. I immediately moved to the window of the cell. 18. At the time therefore that the cell phone was disposed of, both the Claimant and Officer Trinidad were in close proximity to each other. Interestingly, a statement was taken from inmate Kendall Welch, to which no objection was taken. Mr. Welch s statement also established the close proximity of Officer Trinidad to the Claimant when the cell phone was disposed of. He provided the following statement which was exhibited to Sergeant Lutchman s evidence: I saw inmate Anino Garcia attempting to throw a cell phone though his cell window at the same time Officer Trinidad was trying to prevent him from throwing the phone by holding one hand and pulling him away from the window when the inmate threw the phone through the window. Officer Trinidad then instructed me to throw it back which I did (my emphasis). Officer Trinidad had both the opportunity and the motive to administer the first blow. The initial contact: an elbow to Officer Trinidad s face or the Claimant s locked neck? 19. The Claimant contended in cross-examination that after he threw the phone out the window, Officer Trinidad locked his neck. In order for him to do this, Officer Trinidad must have been in close proximity to the prisoner and held on to him or as the Claimant described locked his neck. The Claimant under cross-examination was unshaken. At this stage Officer Trinidad began to cuff him in his eyes and face 4. 4 What happened after? He began cuffing me up in my face and eyes and nose I start to bleed and I call the other officers to help. Who were the other officers? I saw 2 other officers. You saw Diaz? Yes You saw Hamilton? Yes them was the two Your nose started to bleed then what? He continue cuffing no matter what I do I can t stop him. I start to roll over and then the 2 of us fall off the bed. 8

9 20. According to Officer Trinidad in his examination in chief it was the Claimant who dealt him an elbow to his face. However, no other officer in their examination in chief witnessed the initial contact between the Claimant and Officer Trinidad. It is true that there is a report of minor injuries sustained by Officer Trinidad, but this is also consistent with the scuffle between himself and the inmate on the bed and when he subsequently fell. 21. According to Officer Diaz I heard a commotion inside the cell and upon entering, I saw the Claimant kicking Prisons Officer Trinidad. According to this version as contained in paragraph 5 of his witness statement when Officer Diaz entered, both the Claimant and Officer Trinidad were no longer on the bed. Notably it was Officer Ramsingh, in his report dated 22 nd May 2009, who said that Anino Garcia pushed Prisons Officer Trinidad down and kicked him. The obvious question, however, that arises is why would, if the Defendant is to believed, the Claimant whilst unprovoked, attack Officer Trinidad if the cell phone was already disposed of? Conversely would it be more plausible that it was Officer Trinidad who was the aggressor, who was trying firstly to get the prisoner to exit his cell and second, to prevent him from retrieving the cell phone. In any event, what destroys the Defendant s version is Officer Trinidad s vacillation in cross-examination when he suddenly invents that the prisoner left one bunk and came across to the other bunk to deal him a blow. What further makes this even more incredible is that all this happened and Officer Trinidad did not call out for help. The initial contact, in my view, was Officer Trinidad locking the Claimant s neck as the Claimant so vividly demonstrated in the witness box. The fall to the floor 22. The Claimant contended that he tried to stop the officer from hitting him and he was shouting to the other officers for help. He tried to hold on to Officer Trinidad s hands but he was stronger than him. The officer continued to hit him and in trying to roll over, they then both fell to the floor. Officer Trinidad also admits that they fell to the floor. However, he goes on to say that it is on the floor, that while he was standing up, Garcia was kicking him on his legs. This caused him to take out his staff and subdue him as well as call other officers to administer blows to subdue the Claimant. All of this while the Claimant however was on the floor. According to the Defendant, it is the Claimant who was in this vulnerable position on the floor, but it was he who was the aggressor kicking him while on the floor. Not only is that version implausible, but it is not consistent with the evidence of the Defendant s witnesses. Claimant s overall testimony 23. The Claimant was forthright and frank in giving his evidence. There are several features of his testimony that demonstrate his credibility: (a) the Claimant instinctively identified the officers who assaulted him in Court when asked to do so by attorney for the Defendant. 9

10 (b) Where there were any discrepancies in his evidence, they were not material. One such immaterial discrepancy is seen in the Claimant s account in his witness statement and under cross-examination, that in attempting to defend himself he rolled off the bed and was not dragged off the bed as contended in the statement of case. (c) The Claimant identified Officer Hamilton as one of the officers who administered blows to his head after he rolled off the bed and fell to the floor. At that point Officer Trinidad was kicking him in his belly and Officer Hamilton hit him with his rod behind his neck 5. It was amazing that absolutely no other officer admitted that Officer Hamilton was in the cell, except Officer Hamilton himself. (d) The Claimant consistently maintained his version of the assault under crossexamination after he fell off the bed. In summary his account was: He called out for help; he was kicked in his face and head by Officer Trinidad while another officer came in the cell and beat him over his body with the riot staff. He was being kicked in his head and face. He was told by Officer Trinidad to get up and take his licks. He felt weak. He tried to hold on to one of the cells to get up but was hit on his hands with the riot staff and he fell back to the floor and was kicked again. He begged the officers to stop the beating. He was dragged out of the cell by Officer Trinidad and another officer. He was bleeding from the nose and mouth. 24. The Court faced with the testimony of the Claimant, must still however exercise extreme care in relying on this evidence in the absence of corroboration. The allegations being made against Prisons Officers are extremely serious and ought not to be made lightly. However the Claimant s case was ably assisted by the Defendant s witnesses whose testimony was fraught with inconsistencies, admissions and contradictions and to a large measure even corroborated aspects of the Claimant s case. The witnesses of the Defendant 25. Officer Lutchman s cross-examination was uneventful. Officer Trinidad s evidence was glaring in its inconsistency and he demonstrated a penchant for misleading the Court: 5 Well I saw Mr.Trinidad holding his knees from the fall too. Then what happened? When I try to get up I feel a lash behind my neck (demonstrate behind head) When you get that lash you was on the rod still? Yes (demonstrates) I roll off, I fall on the bathroom wall, was in a crouch position and trying to get back up, my knees on the ground when I get the lash on the back of my head with a staff. After I saw is the staff. What happened after your head hit the ground? Officer Trinidad start to kick me in me belly and the next Officer start to beat me too. Which officer? Mr. Hamilton. He was beating me with the staff all in my back I was just feeling lash. I was feeling weak and I was bleeding plenty from my nose. After that what happened? Mr. Trinidad tell me get up and take your licks. I could not get chance to get up from on the ground. 10

11 (a) He admitted to using force on the Claimant several times. He, however, contended that the force he used was striking the legs of the Claimant with his baton. If this is so, how then does the accused suffer injuries to the face, head and eye as evidenced in the medical report and in Officer George s testimony? (b) He brazenly denies that the Claimant suffered any injuries at all. This bold assertion is made in the face of the medical report, his own evidence that the Claimant was receiving blows from him and Officer Diaz and an account from Officer Ramsingh that there were welts on the Claimant s body. To my surprise he said that the Claimant was not bleeding. This is contradicted by the statements taken by Sergeant Lutchman and Officers Barrington and George s account of the evidence of blood on the face of the Claimant. (c) He admitted that Officer Ramsingh used force against the Claimant by striking the Claimant with his staff on the Claimant s legs. Critically, Officer Trinidad admits that the Claimant did not attack Officer Ramsingh. (d) For some inexplicable reason, this officer maintained under cross-examination that even though he was being assaulted by the prisoner, he did not call out for help. His reasons for doing so varied with the passage of his cross-examination from that he was stunned, to that his focus was on the Claimant. What was even more incredible, is that he could not identify who came into the cell to help him. In a very small cell, Officer Trinidad proffers the excuse that his line of sight was on the Claimant and so he could not see who came in the cell to help him. (e) Even though he admits that it was the Claimant who was on the floor and he was standing up, he contends that the Claimant was hitting him in his lower extremities. Even if that was so, he did not leave the cell because again his focus was on the Claimant. (f) As the cross-examination continued, this witness evidence began to deteriorate to the point of self-destruction. In one breath he said that Officer Ramsingh used force then later in his cross-examination he resiled and clams up Did any other officer administer force on that day while you were there? I can t say. Did you witness in your presence any other Officer administer force to him? At the point in time I was focused on defending myself I did not see any other person use force on him. (g) He denied the presence of Officer Hamilton in the cell at all. But this is contradicted by Officer Hamilton s own evidence-in-chief and cross-examination. In my view this witness was totally unbelievable. 26. Officer Ramsingh observed what took place in the cell even though there is nothing in his evidence-in-chief to suggest this. He contradicts Officer Trinidad in that he states he was already in the cell when they both fell to the ground. They rolled off the bed. Officer Ramsingh maintains that the Claimant suffered no injuries to his face at all. This simply is unbelievable in light of the Defendant s very own accident report. He denies that Officer Hamilton came into the cell at all. 11

12 27. Officer Ramsingh states that Officer Trinidad administered blows then in direct contradiction to Officer Trinidad s account, Officer Ramsingh stated that he administered blows using his staff on the Claimant. It was amazing to hear this account of Officer Ramsingh running to the assistance of Officer Trinidad and administering a beating on the Claimant s legs. At that time when he was administering blows to the Claimant, he states that Officer Trinidad was also beating the Claimant. What is even more remarkable is that when he was beating the Claimant, he says he was standing side to side with Officer Trinidad contradicting the evidence of Officer Trinidad. 28. He also stated in cross-examination that Officer Diaz then rushed in to help physically remove the Claimant from the cell. He observed there were welts to the lower extremities of the Claimant. These admissions in his cross-examination must be compared to the deafening silence on this matter in the contemporaneous statement given by this Officer on 22 nd May 2009 to Sergeant Lutchman. He simply told his superior officer, I heard Prisons Officer R Trinidad instructed someone in the airing yard to return the object. It was then thrown back into the cell. I saw it was blue cell phone. Anino Garcia pushed Prisons Officer R. Trinidad down and kicked him. Force was used to subdue the inmate and he was removed from the cell (my emphasis). 29. This statement appears neutral on its face but it is of huge significance in the context of this case. First this is a statement made by Officer Ramsingh to his investigating Officer Sergeant Lutchman. It is addressed to the Superintendent of Prisons. The purpose of this investigation is to determine culpability and the possibility of disciplinary action against either the inmate, the Officer or both. But this statement on such a crucial aspect of the use of force against an inmate is vague and can in no way be of any assistance to Sergeant Lutchman. 30. It is only in these proceedings have we learnt from Officer Ramsingh that he too used force and used his regulation staff to administer blows on the Claimant. Why was that omitted from his statement to the Superintendent of Prisons? Why is it only Officer Trinidad who made such a statement to the Superintendent of Prisons that he used his regulation staff to subdue the Claimant, of course including his need for self defence? It invites one to speculate that officers are hiding the truth; at worse that there was an agreement that one officer would take the fall. Indeed in light of such a statement, it is no wonder that in Mr. Lutchman s witness statement and in his conclusions made in his report on the investigation dated 22 nd May 2009, he stated that it was Officer Trinidad who used his regulation staff to subdue the inmate. 31. Second, similarly, apart from Officer Trinidad s report, there is no mention in any of the contemporaneous reports of the officers of the use of force by any other officer. Such an assertion has now been exposed as simply untrue. 32. Third, such a false account found its way in asserting a Defence before this Court which keeps faith to those written reports from the officers that it is only Officer Trinidad who used force with a regulation staff. 12

13 33. Fourth, in his evidence-in-chief he was equally vague on such a crucial matter I assisted Officer Trinidad in subduing the Claimant and removing him from the cell. At no point in time did I or any of the officers taunt, kick, cuff, slap or use obscene language toward the Claimant. Of course Officer Ramsingh simply could not add the verb hit or strike to that list, let alone make the statement administer blows with my regulation staff. 34. I emphasise this matter as it shows the domino effect of statements made in reports in investigation which are open-ended, deliberately vague or designed to deceive. It results in poor investigations, the failure of the prison authorities to adequately deal with the problem of excessive force and unnecessary litigation. 35. In relation to Officer George a significant aspect of his testimony was this exchange: Q: What physical injuries you observe him to be suffering from you could see? A: Well all that I saw at that time was some bleeding. I believe it was facial and I can t member exactly and I thought it necessary to take him to the infirmary to get medical attention. Q: Can you describe what physical condition he was in? A: He was bleeding from somewhere in face but that is all I can remember, once I saw blood I took him immediately to he infirmary. 36. This witness highlights the severity of the Claimant s condition that required immediate attention at the infirmary. He stressed this in his cross-examination. The sense of urgency he conveyed also suggested to me that the injuries sustained by the Claimant were serious. 37. Officer Diaz further confirms the assault on the Claimant by both Officers Trinidad and Ramsingh. 38. Officer Barrington was the infirmary officer. What was amazing about this witness was that he did not observe any marks on the legs of the Claimant. This is strange when all the witnesses previously admitted that the Claimant was receiving blows with regulation staffs on his legs by two officers. It gave the distinct impression that he came to cover up the truth and protect his colleagues. It is significant however that he admits that severe injuries are recorded on the accident report. The report speaks for itself. 39. Officer Hamilton: I must admit that after hearing the cross-examination of Officer Hamilton, I wondered why the Defence was being pursued at all. Not only did Officer Hamilton produce another version of how the incident occurred, he clearly involved himself in the incident when all the other officers claimed he was not there. He held on to the Claimant s shirt and helped to pull him from the cell. Not one officer indentified Officer Hamilton as being present that day. The only witness who positively identified Officer Hamilton as being involved in this incident was the Claimant. The final nail in the coffin was made when he boldly denied that any officer used force against the Claimant. He also denied that the Claimant suffered injuries. This is plainly contradicted by the accident report and the evidence of the other officers. He was alive to the fact that an 13

14 allegation was made that he beat the Claimant when he boldly denied that he did not have a staff at all. He claimed that he left it in the kiosk because it gets in his way. Conclusion on the evidence 40. As each Prisons Officer gave his evidence, the Defendant s case became more unbelievable, unstable and shaken until it eventually collapsed after Officer Hamilton gave his evidence. In light of the fundamental conflicts in the Defendant s evidence I simply could not believe the Defendant s version of events, moreso in circumstances where they accepted the burden of demonstrating that only reasonable force was used and/or Officer Trinidad acted in self defence. The Claimant s evidence which stood unshaken in crossexamination therefore remains the only credible account of how this incident occurred: The Claimant was first attacked by Officer Trinidad who locked his neck atop the bunk or bed. The Claimant struggled with Officer Trinidad who administered blows to his face. The two men fell off the bed or bunk and while the Claimant was on the ground Officer Trinidad got up and began kicking the Claimant. Officer Hamilton rushed in and administered a blow to the back of the Claimant s head Officer Ramsingh also rushed in and administered blows to the Claimant s legs. Officer Diaz also came into the cell. The Claimant tried to stand but was beaten with a staff on his leg. He was then dragged out of the cell by the officers. Officer George then took him to the infirmary. There was no lawful excuse for the assault on inmate Anino Garcia. The Claimant s claim for assault and battery has been made out on a balance of probabilities. Damages 41. This is a serious matter as it is an account of an assault, the use of excessive force against a prisoner in the confines of his cell under a mandate of the prison authorities to hold and treat. I endorse the views of D. Mark Pike CJ in R v Carrigan 2009 CarswellNfld 278 at paragraphs 15 and 16: The excessive use of force on a prisoner in the confines of the lockup is a reprehensible a (sic) crime in a free and democratic society. Correctional officers, like the police and sheriff's officers, are in a special position of power over prisoners. Prisoners and those in custody can do little to protect themselves against assaults by those whom the law has entrusted with their care. It is the law and the justice system which puts the correctional officer in the position of power 14

15 over the prisoner and therefore it is the law and the justice system which must protect the prisoner from abuse and excessive force. When a correctional officer assaults a prisoner he commits a serious crime against not only that prisoner but a serious crime against the justice system itself. The public expects a high standard of conduct on the part of trained correctional officers and any abuse of power or excessive force on their part must be resolutely constrained. It is acknowledged by all, that the job of a correctional officer is a very difficult one. Just like police and sheriff's officers, they routinely receive all manner of abuse from those who are incarcerated or otherwise taken into custody; but it must always be remembered that the prisoner is vulnerable when in custody and the law must protect him from assault and excessive use of force just as it must protect others. Quite apart from the repugnance which society holds for the abuse of the exercise of power, there is a clear law enforcement interest in humane and civilized observance of the role of law by those who are bound to uphold the rule of law as their sworn duty. 42. The law must promote the humane observance of the rule of law. Prisons Officers do face a difficult task in dealing with inmates. However, where they have breached the law, the Court will protect the inmates as it will protect others. 43. The protection the laws affords in this case is an award of damages. My award for damages would reflect an award of aggravated damages and exemplary damages. I of course take into account the factors as laid down in the case of Cornilliac v St. Louis (1965) 7 WIR 491 ( the Cornilliac principles ) as well as comparative and recent cases in our jurisdiction. 44. The starting point for assessing an appropriate award on damages is the examination of the physical injuries sustained by the Claimant. On this issue I must tread with a certain degree of caution. First although I have accepted the Claimant s evidence I recognise that it is reasonable to expect some exaggeration from him with respect to the manner in which the injuries were inflicted, the pain and suffering endured and their residual physical injury. 45. Second, in a normal world we can be guided by the contemporaneous records. However, as we have seen in the reports given by the Prisons Officer to Sergeant Lutchman, the gaps in the facts are either deliberate in concealing the truth or unhelpful in determining the truth. The same applied to the accident report. This is a prisoner under the care of the prison authorities, I would hardly expect inmate Garcia to walk out of prison and make an appointment with his medical practitioner of his choice. Officer Barrington gave his evidence and signed the report as Infirmary Officer. 46. The third part of the form was signed by the Prisons Medical Officer who gave no evidence before this Court. We do glean from this report that whatever physical injuries that were sustained they may not cause permanent physical disability. The resulting disability that the Claimant alleged of his difficulty in breathing and the passing of blood in his urine was 15

16 simply not corroborated. He testified that he sought medical attention from the Prison Medical Officer to treat these symptoms. However, he chose not to subpoena that officer to assist this Court to arrive at a proper assessment of the extent of his injuries. My award is therefore based on the physical injuries he sustained from the beating which is corroborated by the accident reports, the infirmary officer s report and the evidence of Officers George and Barrington. 47. Counsel for the Claimant provided a useful table of recent awards for damages for assault and battery in our Court. No. Parties Court Quantum of Damages Date of Judgment 1 Guerra v AG Jones J $55, th January Wilson v AG Armorer J $250, rd October Paul v AG Gobin J $150, th October Brathwaite v AG Boodoosingh J $160, th October Ross v AG Boodoosingh J $216, th October, Joseph v AG Des Vignes J $394, th October Andrews v AG Des Vignes J $160, th October L Roche v AG Des Vignes J $140, th October Greene v AG Des Vignes J $120, th October Abraham v AG Armorer J $180, nd July, Marshall v Ag Rajnauth Lee J $150, st October Shan Danie v Ag Kokaram J $75, th July, Rohit Ramhit v AG Boodoosingh J $50, th June Lester Pitman v AG Jones J $127, th December Sean Wallace v AG Des Vignes J $ nd October Bullock v Ag Master Durity $180, th February Martin Reid v AG Jones J $110, th June 2007 A similar careful study awards was also conducted by my brother, Justice Des Vignes in Sean Wallace v AG, H.C. 4009/2008 in which there is a very useful guide in arriving at an appropriate award. 48. Counsel for the Defendant relied on the authorities of Wilson v Super Mix Feeds Trinidad Limited and Mahabir HCA No of 1983; Fletcher & Topping v The Attorney General and Anor. H.C.A. S-56 of 1982; Bartholomew v AG. H.C.4755 of In Dwain Kirby Henry v The Attorney General and Ors. CV : during an encounter with police officers, which resulted in the Claimant being arrested, the Claimant suffered personal injury and was taken to the Sangre Grande Hospital. A medical report from that institution recorded swelling on the right side of the face, over the right eye and bruise around the left ear. The Claimant was released a few hours later and visited the Arima Hospital where he was seen at the Casualty Department and the following injuries were recorded: left ear laceration with bleeding, right occipital area swelling and tenderness, right forearm abrasions and bleeding. The head injury and the bleeding ear 16

17 were consistent with the Claimant having been hit on the head with an object like a gun. The Claimant alleged that he also sustained blows about the body and other injuries. The Court awarded the Claimant damages for assault and battery in the sum of $35, together with aggravated damages in the sum of $20, The Claimants suffered injury at the hands of police officers employed by the State in the holding cell of the Port of Spain Magistrate Court. The Court accepted the evidence as contained in the medical reports as the basis of the award of damages, being cognizant of some exaggeration from the Claimants with respect to the manner the injuries were inflicted and their pain and suffering. 49. In making the award and in particular when considering the head of pain and suffering, the Court was mindful of the manner in which the injuries were inflicted, and considered that the fact that they were inflicted by repeated lashes from a baton over an extended period had some relevance and served to heighten the pain and suffering experienced by the Claimants. 50. In Bartholomew v The Attorney General, the Court considers the following injuries: (a) Frankie Bartholomew suffered a 1 cm laceration to his left eye that was swollen and tender, swollen right elbow, tender, swollen right forearm, tender, swollen left forearm, puncture wound visualized to posterior aspect of left forearm; tender mildly swollen anterior aspect of left foot; 0.5 cm superficial abrasion to anterior aspect of left foot; tender mildly swollen left ankle; tender swollen anterior aspect of right foot; 0.5 cm laceration to anterior aspect of right foot. He was awarded the sum of $60, general damages which included an uplift representing aggravated damages. (b) Randy suffered a tender mildly swollen right knee; tender swollen right forearm; tender swollen left arm; tender swollen left forearm. He was awarded the sum of $25, general damages which included an uplift representing aggravated damages (c) Leon King suffered from a laceration to right side of forehead 1 cm skin deep; bruise right calf; bruise right side back; bruise over old retained bullet right side of upper sternum; soft tissue injury to lateral aspect of left hand. He was awarded the sum of $35, general damages which included an uplift representing aggravated damages (d) Terrell Toney suffered from soft tissue injuries to both forearms and left thigh with a shallow laceration to his left cleft. He was awarded the sum of $25, general damages which included an uplift representing aggravated damages 51. These cases are but useful working examples of the application of the Cornilliac factors to certain factual scenarios. An assessment of damages is fact specific and fact sensitive. These cases are instructive in so far as they provide a useful guide to the Courts and to litigants as to the likely range of awards, and the view a Court places on certain types of injuries. Indeed, in Peter Seepersad v Persad and Capital Insurance Company Limited 17

18 Privy Council Appeal No. 86 of 2002, their Lordships expressed the view at paragraph 15 that: Their Lordships entertain some reservations about the usefulness of resort to awards of damages in cases decided a number of years ago, with the accompanying need to extrapolate the amounts awarded into modern values. It is an inexact science and one which should be exercised with some caution, the more so when it is important to ensure that in comparing awards of damages for physical injuries one is comparing like with like. The mythology of using comparisons is sound, but when they are of some antiquity such comparisons can do no more than demonstrate a trend in very rough and general terms. 52. Although an assessment of damages is fact specific, the Court should strive for a degree of uniformity in awards. The injuries sustained by the Claimant were welts to the legs and arms, soft tissue injury to the face and arms, bleeding from the mouth and nose, and swollen right eye leading to impaired sight for two days, hematoma on the head, and tenderness about the body. These injuries on its face are not severe. There are neither broken bones nor fractures. Surgical intervention was not required. There are neither gaping wounds nor stitches that were required. There are no resulting disabilities or impairments, the treatment administered were Paracetamol for pain and an ice pack for swelling. However, I must take into account the Claimant s account of the pain and suffering he endured from a beating by more than one officer. 53. I have used a range of $25,000 to $40,000 as the award of compensatory damages. However, I propose to make one award which includes aggravated damages consistent with the approach recommended in Thaddeus Bernard, Airports Authority of Trinidad v Nixie Quashie Civil Appeal No. 159 of The Court of Appeal in that case stated at page 5: The normal practice is that one figure is awarded as general damages. These damages are intended to be compensatory and to include what is referred to as aggravated damages, i.e. damages which are meant to provide compensation for the mental suffering inflicted on the plaintiff as opposed to the physical injuries he may have received. Under this head of what I have called mental suffering, are included such matters as the affront to the person s dignity, the humiliation he has suffered, the damage to his reputation and standing in the eyes of others and matters of that sort. If the practice has developed of making a separate award of aggravated damages, I think that practice should be discontinued. I think it is better to adhere to the traditional practice of making one award of compensatory damages. The judge may in coming to his decision identify the two components of the award but I think to separate them 18