IN THE HIGH COURT OF JUSTICE BETWEEN NIGEL MORALES CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD & TOBAGO DEFENDANT

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN NIGEL MORALES CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD & TOBAGO DEFENDANT BEFORE THE HON. MADAME JUSTICE JOAN CHARLES Appearances: For the Claimant: For the Defendant: Mr. K. Samlal Mr. S. Alsaran Date of Delivery: 29 th July, 2011 JUDGMENT BACKGROUND [1] The Claimant was at the material time a taxi driver. On the 2 nd June, 2002, the Claimant was arrested for possession of marijuana; he pleaded not Page 1 of 17

2 guilty and the matter 1 was eventually dismissed on the 17 th January, Thereafter, he sought and obtained a copy of the Magistrate s Casebook Extract ( the said extract ) in respect of the said Case on the 26 th January, [2] On the 21 st May, 2007, the Claimant applied for a Certificate of Character ( the said Certificate ) at the Criminal Records Office (CRO), Port-of- Spain. On the 23 rd May, the Claimant, armed with a copy of the said extract went to the CRO to check on the status of the said Certificate. THE CLAIM [3] The Claimant alleged that upon arrival at the CRO, he met Police Officers Norbert and Young, to whom he made his request for the said Certificate. Sometime after, the Claimant informed Corporal (Cpl.) Norbert that he wished to leave to purchase lunch, whereupon the latter told him that he could not leave the Station. The Claimant acquiesced and around 11:00 a.m., he was approached by Officer Dickenson from the Siparia Police Station. [4] After identifying himself to the Claimant, PC Dickenson informed him that he had in his possession a warrant for his arrest due to his failure to attend court for the charge of possession of marijuana. The Claimant explained that the case had been dismissed and produced the said extract. Nevertheless, Officer Dickenson restrained the Claimant by firmly 1 Case No. 7529/2002 Page 2 of 17

3 gripping his hand and escorted him into the Port-of-Spain Magistrates Court. [5] Upon arrival at the court, Officer Dickenson conferred with the Justice of the Peace and showed him the warrant for the Claimant s arrest and the Magistrate s Case book extract. The Justice of the Peace took the documents and left the Claimant with PC Dickerson. He returned to them several minutes later and informed PC Dickenson that the Claimant should be released as there was a mistake since the case had been dismissed. [6] Officer Dickenson then informed the Claimant that he was free to go but instructed the Claimant to return to CRO and tell Cpl. Norbert what transpired. The Claimant did so and reported the events to Cpl. Norbert and requested his Certificate once more. However, Cpl. Norbert refused to supply the Claimant with the Certificate and gave no reasons for his refusal. The Claimant then left the station and without the said Certificate. [7] The Claimant contends that as a direct result of Cpl. Norbert s refusal to issue to him a Certificate of Character, he has been unable to renew his taxi badge. As such, he was unable to earn income from his only means of support. [8] In addition, the Claimant contends that: i. At no time during his unlawful arrest and detention was he informed of his constitutional right to retain an Attorney-at-law; Page 3 of 17

4 ii. iii. He remained at CRO for several hours during which he was unlawfully deprived of his liberty; and, The conduct of the Police Officers involved was arbitrary, oppressive and/or unconstitutional. [9] Thereafter, the Claimant filed this action on the 10 th June, 2008 seeking the following reliefs: i. Damages including aggravated damages and/or exemplary damages for false imprisonment and loss of renewal of the Claimant s contract of employment; ii. A declaration that the arrest and detention of the Claimant was unconstitutional and illegal; iii. A declaration that the refusal and/or omission of the Police to inform the Claimant upon arrest and/or detention of his right to retain or instruct without delay a legal advisor of his choice and to hold communication with them was illegal; and, iv. A declaration that the Claimant was deprived of his constitutional right to be informed of his right to and communicate with, instruct and retain an Attorney-at-law of his choice was contrary to SECTION 5(2)(c)(ii) of the CONSTITUTION OF TRINIDAD AND TOBAGO. Page 4 of 17

5 THE DEFENCE [10] The Defendant challenged the Claimant s account of the events that unfolded on the 23 rd May, 2007, when he went to the CFO to enquire after the said Certificate. [11] The Defendant alleged that the Claimant had applied for the said Certificate on the 21 st May, When he attended the CRO on the 23 rd May, 2007, it was for the purpose of ascertaining the status of the said application. [12] The Claimant spoke to Cpl. Norbert who asked the former to remain in the public reception area whilst he ascertained the status of the said Certificate. Cpl. Norbert s inquiry revealed that the application was still being processed and that there was an outstanding warrant for the arrest of the Claimant at the Siparia Police Station. [13] Cpl. Norbert contacted Inspector (Insp.) Cooper, of the South West (SW) Division and informed him of the Claimant s presence at the CRO inquiring after the said Certificate. Insp. Cooper confirmed that there was an outstanding warrant for the arrest of the Claimant and instructed Cpl. Norbert to detain the Claimant until the warrant officer, PC Dickerson, arrived at CRO to pick up the Claimant. [14] Cpl. Norbert then told the Claimant that there were problems with the said Certificate which were being sorted out; whereupon the Claimant Page 5 of 17

6 indicated a willingness to wait at the CRO until the problem was ironed out and he voluntarily did so. [15] At around 11:35 a.m. PC Dickerson arrived at the CRO and Cpl. Norbert introduced him to the Claimant. PC Dickerson then identified himself to the Claimant, showed him the warrant and told the latter of the offence for which the warrant was issued. The Claimant then informed PC Dickerson that the case had been dismissed. PC Dickerson replied that he would have to take the Claimant to the Port-of-Spain Magistrates Court to clarify the issue. [16] The Claimant and PC Dickerson then left the CRO for the Magistrates Court. The Claimant was in no way held or restrained by PC Dickerson; in fact, they were talking and laughing on their way to the Office of the Justice of the Peace. [17] At the Justice of the Peace s Office, PC Dickerson showed the former the warrant. The Justice of the Peace then instructed the Officer to leave the Claimant and warrant of arrest in his care. PC Dickerson did as the Justice of the Peace instructed and left the Claimant at his office. [18] The following matters were specifically denied: i. That the Claimant showed to either Cpl. Norbert or PC Dickerson a copy of the said extract prior to being taken to the Magistrates Court; ii. That the Claimant was ever arrested by the Police at any time; and, Page 6 of 17

7 iii. That the warrant was ever executed upon the Claimant. [19] The Defendant contended that since the Claimant was never arrested, his constitutional rights were never infringed as he alleged and that he was not entitled to any of the reliefs sought in his Statement of Case. THE EVIDENCE [20] Under cross-examination, the Claimant insisted that he showed Cpl. Norbert the copy of the said extract from the Magistrate s Casebook which certified that his case had been dismissed. When it was pointed out to the Claimant that he had not said this in his Witness Statement, he explained that the omission was an error. [21] He further testified that he believed that he was under arrest because Cpl. Norbert told him that he could not leave the CRO to get lunch. He believed that if he attempted to leave Cpl. Norbert would arrest him. [22] The Claimant also stated that PC Dickerson identified himself to him and informed him that he had a warrant for his arrest. The latter did not state that he was arrested but held onto his hand and later marched him across St. Vincent Street in public view. He insisted that he also informed PC Dickerson that the case against him has been dismissed and showed him the copy of the said extract in his possession whilst still at the CRO. [23] At the Office of the Justice of the Peace, the Claimant testified that Cpl. Dickerson spoke to the Justice of the Peace, gave him the warrant and the Page 7 of 17

8 said extract. The Justice of the Peace checked the information, returned sometime later and told PC Dickerson that he was free to release the gentleman since it was an obvious mistake. [24] In answer to Counsel, he stated that Cpl. Norbert refused to give to him the said Certificate upon his return to CRO. He has not received it to date. The Police, however had promised to call him but never did so and he was afraid to return to the CRO for fear of arrest. [25] Cpl. Norbert testified on behalf of the Defendant and was cross-examined by Counsel for the Claimant. He stated when the latter attended the CRO to inquire after his application for the said Certificate he made enquiries which revealed that there was an outstanding warrant for his arrest. He verified this information with Insp. Cooper of the South West Division who told him that the warrant officer would come to Port-of-Spain execute the said warrant on the Claimant. [26] His evidence is that he told the Claimant that someone from the Siparia Police Station was travelling to Port-of-Spain with documentation to clear up his record ; the Claimant immediately told him that he would wait. He never informed the Claimant that there was an outstanding warrant for his arrest, or that a warrant officer from the Siparia Police Station was on his way to the CRO to execute the said warrant on him (the Claimant). Under cross-examination Cpl. Norbert admitted that the normal practice in a case such as this would be to arrest such a person. He swore that he Page 8 of 17

9 did not arrest the Claimant because he did not see the need since the Claimant appeared eager to sort out the situation and volunteered to remain at CRO until the warrant officer arrived. [27] Cpl. Norbert denied that the Claimant, at any time, indicated that he wanted to leave the CRO. Under further cross examination, he admitted that where a warrant has been issued for a person the normal procedure is to execute the warrant on that person and then take them to court. [28] He testified that when PC Dickerson arrived at the CRO, he informed the Claimant that he had a warrant in his possession for the latter s arrest. He also witnessed PC Dickerson showing the warrant to the Claimant. They then left the CRO together chatting and laughing. Under further cross examination, Cpl. Norbert admitted to having received a message from Insp. Cooper at 9:15 a.m. to detain the Claimant but denied carrying out this instruction. [29] PC Dickerson, the warrant officer, was another witness called to testify on behalf of the Defendant. He testified that he arrived at the CRO between 11:30 a.m. 11:45 a.m. He stated that after he introduced himself to the Claimant he then informed him that he had a warrant in his possession for the arrest of the Claimant from the Port-of-Spain Magistrates Court for failure to attend court upon the hearing of a charge for the possession of marijuana against him (the Claimant). Page 9 of 17

10 [30] PC Dickerson went on to state that the Claimant informed him that the case had been dismissed, whereupon he told the Claimant that he would have to accompany him to the Port-of-Spain Magistrates Court in order to verify the information. He insisted that the Claimant never showed to him a copy of an extract from the Magistrate s Casebook showing that the case had been dismissed. In answer to Counsel, he insisted that he never held or restrained the Claimant in any way as they walked from the CRO to the Port-of-Spain Magistrates Court, [31] Upon arrival at the Magistrates Court, he spoke to the Justice of the Peace and informed him of what had transpired between himself and the Claimant. He gave to the Justice of the Peace the warrant and asked him to verify whether the case had been dismissed. After checking the records, the Justice of the Peace stated that the matter was dismissed and he should leave the Claimant and the warrant with him. He did so and left. This witness also testified that the life span of a warrant for arrestable offences is ten (10) years and that it was normal police practice to have a warrant outstanding for five (5) years. [32] He admitted to having known the Claimant; he knew where he lived and he travelled in his taxi on a regular basis for several years. Despite this, he was unable to execute the warrant on the Claimant having made more than five attempts over the fiver year period that the warrant was outstanding. Page 10 of 17

11 [33] He admitted that the words detention and arrest have the same meaning but he denied that Insp. Cooper gave instructions to detain the Claimant. When confronted with the extract from the telephone message book, in which that instruction was clearly given by Insp. Cooper to Cpl. Norbert, he then stated that the Claimant had been detained without his knowledge. ISSUE [34] The issue for determination by the Court is whether, in fact, the Claimant was unlawfully arrested and/or falsely imprisoned by the Police Officers. ANALYSIS ARREST [35] An arrest is the seizing or touching of the person of an individual with a view to restraining them. 2 In Shaaban Bin Hussein and others v Chong Fook Kam and Another 3, Lord Devlin defined arrest as follows: An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It also occurs when by words or conduct he makes it clear that he will if necessary use force to prevent the individual from going back where he may want to go. It does not occur when he stops an individual to make inquiries. 2 Alderson v Booth [1969] 2 QB [1970] A.C. 942 at p. 47B Page 11 of 17

12 [36] From the evidence before me, I find the following facts: i. At 9:15 a.m. Insp. Cooper instructed a junior officer, Cpl. Norbert, to detain the Claimant; ii. iii. The Claimant remained at the CRO from 9:15 a.m. until the arrival of the warrant officer at 11:30 a.m. 11:45 a.m.; The warrant officer, PC Dickerson, executed the warrant upon the Claimant by reading and showing same to him. Thereafter he took the Claimant to the Port-of-Spain Magistrates Court to the Office of the Justice of the Peace. He remained there with him until the Justice of the Peace verified that the case had been dismissed; [37] Having heard and seen the witnesses, I accept the Claimant s version of events and I found him to be more credit-worthy than the two officers. I accept his evidence that he was detained at the station form 9:15 a.m. 11:30 a.m. and that he was held by PC Dickerson and taken to the Magistrates Court. [38] I did not consider Cpl. Norbert to be truthful or reliable. He danced around the issue of whether the Claimant had been arrested or detained and in fact completely denied arresting or detaining him. He invited this Court to accept that he flagrantly disobeyed an instruction of a senior officer to detain someone in respect of whom there was an outstanding warrant, even while admitting that the normal procedure in such a case is to execute the warrant upon the person and to take them to the Magistrates Court. Page 12 of 17

13 [39] PC Dickerson was not a credible witness either. He denied having executed the warrant upon the Claimant even though he testified to having informed the Claimant of the contents of the warrant. When coupled with the evidence of Cpl. Norbert that he witnessed PC Dickerson both reading and showing the warrant to the Claimant, it is clear that he is not telling the truth. [40] As well, it is to be noted that the warrant was an important item of evidence in this case. The warrant officer was required to indicate on the back of the warrant the attempts made to serve it on the Claimant; as well he was required to affix a certificate to the back of that warrant upon executing it on the Claimant. Conversely, an examination of the warrant would have also assisted the Court on the issue of whether any attempts were made to execute the warrant, or whether as PC Dickerson maintained the warrant was never executed and as such the Claimant was never under arrest. [41] The failure by the Defendant to produce this document which was in their possession and which would have assisted the Court on a very material issue is a matter that allows me to draw an adverse inference against them and I so do. [42] In all the circumstances, I hold that the Claimant was arrested by the Police and since there was no legal authority by which they could have arrested him, the arrest was unlawful. Page 13 of 17

14 FALSE IMPRISONMENT [43] False imprisonment is committed where one unlawfully or intentionally or recklessly restrains another s freedom of movement from a particular place without lawful justification. 4 The tort of false imprisonment is established on proof of: i. the fact of imprisonment; and, ii. the absence of lawful authority. 5 [44] The Claimant contends that he was falsely imprisoned from 9 a.m. to 11 a.m. on the 23 rd May, Having already held that the Claimant was unlawfully detained during this period by Cpl. Norbert, then the claim of false imprisonment is made out since an unlawful arrest is automatically deemed to be false imprisonment 6. [45] The Court accepts the Claimant s evidence that after the warrant was executed on him, he was held and taken down St. Vincent Street to the Magistrates Court thereby giving rise to another period of false imprisonment by PC Dickerson. [46] It is to be noted that the said extract was obtained by the Claimant since the 26 th January, 2007 clearly for the purpose of his intended application for the said Certificate. The Court therefore accepts that the Claimant had in his possession the Magistrate s Case book extract which was shown to 4 Smith & Hogan, Criminal Law, 12 th Edition, p. 637, para Clerk & Lindsell on Torts, 18 th Edition, para Ibid, p. 688, para Page 14 of 17

15 Officers Norbert and Dickerson. This ought to have alerted them to the fact that further inquiries should have been made before executing the warrant on the Claimant and arresting him and taking him down to the Magistrates Court. [47] It is clear from the evidence that the Claimant was not informed upon his arrest of his right to retain and instruct without delay a legal advisor of his choice, nor was he informed of his right to hold communication with such legal advisor. [48] The Claimant claimed loss of earnings for a period of three hundred and sixty eight (368) days at the rate of $ per day, as a result of the non receipt of the said Certificate from the Police in order to renew his taxi badge. The Defendant indicated that the said Certificate had been ready since the 13 th July, 2007 but that the Claimant did not return to collect it. [49] The Claimant indicated that he had left his telephone number with Cpl. Norbert who had undertaken to call him when the said Certificate was ready. He stated that he was afraid to return to the CRO to inquire after the said Certificate having regard to what had happened previously. [50] The Claimant did mitigate his loss by obtaining employment one month later as a driver earning $4, a month. He claimed that he earned $ a day as a taxi driver and claimed this sum over a period of three hundred and sixty eight days. Page 15 of 17

16 [51] I consider this sum and the period over which it is being claimed to be excessive and accordingly I reduce the period to one hundred and eight four days (184) and the rate of earnings to $ per day. Whilst it is understandable that the Claimant may have been reluctant to return to the CRO more was required of him. He could have retained an Attorney to pursue the grant of the certificate or sent someone on his behalf to inquire after its status. CONCLUSION [52] In the circumstances, I hold that: i. the arrest and detention of the Claimant was unconstitutional and illegal; ii. iii. he was deprived of his right to retain and instruct upon his arrest a legal advisor of his choice without delay or to hold communication with such legal advisor; the refusal to grant the Certificate of Character led to a significant loss of income for the Claimant [53] I therefore make the following orders: i. Judgment for the Claimant against the Defendant; ii. The Defendant to pay to the Claimant the sum of twenty thousand dollars ($20,000.00) representing damages and aggravated damages; Page 16 of 17

17 iii. Vindicatory damages in the sum of ten thousand dollars ($10,000.00); iv. Loss of earnings in the sum of sixty nine thousand dollars ($69,000.00); v. The Defendant to pay the Claimant s costs to be assessed in default of agreement. JOAN CHARLES JUDGE Page 17 of 17