Mr. B. Charles instructed by Ms. S. Charles. Mr. S. Lalla instructed by Ms. M. Benjamin JUDGMENT

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN JONATHAN MOORE CRYSTAL RICHARDSON Claimant (Appointed administrator ad litem of the Estate of Jonathan Moore, deceased, substituted pursuant to the Order of the Honourable Madame Justice Joan Charles made on 25 th February 2015) AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Appearances: For the Claimant: For the Defendant: Mr. B. Charles instructed by Ms. S. Charles Mr. S. Lalla instructed by Ms. M. Benjamin Date of Delivery: 19 th April 2016 JUDGMENT -1-

2 THE CLAIM [1] This Claimant died on the 20 th December 2014 and was substituted by Order of this Court on the 30 th December 2015 by Crystal Richardson. [2] Jonathan Moore, (hereinafter referred to as the Claimant) instituted court proceedings by way of Claim Form and Statement of Case, against the Attorney General (hereinafter referred to as the Defendant) for damages, including aggravated and or exemplary damages for assault and or trespass to the person. He also sought damages including aggravated and exemplary damages for false arrest and or imprisonment and malicious prosecution. [3] The Claimant pleaded that on the October 6, 2009, at about 2:30 p.m. he was standing in the corridor of his apartment building located at 1-4 Bath Street, Port of Spain, when a bus load of officers came into the parking lot of his apartment. The officers told all who were outside to go into their homes or else they would be charged for loitering. The Claimant then went to his apartment door and stood next to it. While standing next to his apartment door, he received a call from a friend who lives at Basilion Street and left his apartment to go to his friend s house. [4] Sometime later, he returned to his apartment where he met with officers still on the compound and questioned them about their visit and search of his friend s home at Basilion Street. He pleaded at paragraph 3 of the Statement of Case that one of the officers told him that he was too disrespectful to question them and ordered another police officer to lock him up. -2-

3 [5] The Claimant related that he asked the police officers if he was getting locked up for talking his rights, whereupon Police Constable Small handcuffed him. He was then taken to the Repeat Offenders Programme Task Force office upstairs the Besson Police Station and placed in a cell. [6] The Claimant pleaded that while at the Repeat Programme Task Force office, he was removed from the cell and taken to Inspector Boyce s office where he was slapped in the face and head by Inspector Boyce. Thereafter, a group of police officers came into the office and began to beat him severely. According to the Claimant, he bled through his nostril as a result of the beating. He also alleges that Inspector Boyce threatened him, and instructed one of the officers to charge him with something. [7] At paragraph 6 of the Statement of Case, the Claimant averred that he was charged by PC Small with the offence of using insulting language to PC Small and resisting PC Small in the execution of his duty. The said charges against the Claimant came up for hearing on a number of occasions and were eventually dismissed by Her Worship M. Murray on the 26 th April, [8] The Claimant contends that in preferring the charges against him, PC Small acted maliciously and without reasonable and probable cause. It is the Claimant s case that PC Small fabricated the charges against him as he did not use insulting language to PC Small nor did he resist PC Small in the execution of his duty. Further, that PC Small knew or ought to have known that there was no evidence or no reliable evidence against the Claimant that could have implicated him in the commission of any of the said offences. Finally, the Claimant pleaded that the police had no power -3-

4 under statue or the common law to arrest and or imprison him and the motive of the police in arresting and imprisoning him was expressly and impliedly wrongful and unlawful. THE DEFENCE [9] An amended Defence was filed on behalf of the Defendant, denying the Claimant s claim. The Defendant pleaded that on October 6, 2009, a party of police officers which included Police Constable Small left the Repeat Offenders Task Force located at the Besson Street Police Station at around midday, to conduct patrol and exercise duties in the Bath Street area of the East Dry River, Port of Spain. Several marked and unmarked police vehicles were used to transport the officers, but at no time was a bus used to transport the said officers to the Bath Street area. Upon their arrival at Bath Street, the party of officers broke up into smaller groups and proceeded to execute search warrants and conduct searches. [10] At about 4:30 p.m. Police Constable Small was standing outside the mobile police post stationed in the vicinity of Building 1 on Bath Street when he observed a male person whom he later came to know as the Claimant, gesticulating and saying among other things, words to the effect, Boy all yuh is stupid police, why all yuh ain t go from here? and, We living here we could do want we want. PC Small observed that there were several persons grouped near to the Claimant at the time and that the Claimant by his words and actions appeared to be agitating these other persons. PC Small formed the opinion that the Claimant was making use of insulting language which might tend to provoke the other persons around him to -4-

5 commit a breach of the peace and that the Claimant, by his words and actions was disturbing the peace of his surroundings at that time and that the Claimant s behavior ought not to be allowed to continue. [11] PC Small, together with Police Constable Hall, and Police Constable Gloud approached the Claimant, and spoke to him about his behavior, warning him that he was committing an offence and asking him to desist. The Claimant responded by shouting words to the effect, allyuh is fools and cartoon characters! My father is Sergeant Moore, he done tell me what time it is already! Ah go make you lose yuh work. Whilst saying these words the Claimant gesticulated towards PC Small and the other officers and it was observed by PC Small that other persons in the area appeared to become even more agitated. [12] PC Small informed the Claimant that he had committed an offence pursuant to SECTION 49 of the SUMMARY OFFENCES ACT CHAP 11:02 and that he was under arrest for the said offence. PC Small cautioned the Claimant and attempted to inform him of his rights and privileges during which the Claimant began backing away and gesticulating wildly in a threatening manner. The Claimant then shouted words to the effect Me ain t going nowhere, you can t lock me up. At that time, Police Constable Hall and Police Constable Gloud observed the Claimant s behavior and came to PC Small s assistance and together they were able to handcuff the Claimant and arrest him. PC Small then informed the Claimant of his legal rights and privileges. PC Small also informed the Claimant that he had resisted him in the execution of his duty which was also an offence. -5-

6 [13] The Defendant pleaded that the Claimant was then conveyed to the Repeat Offenders Programme Task Office upstairs the Besson Street Police Station and was placed in a cell together with other persons arrested that day. PC Small then informed Inspector Boyce who was in charge of the Repeat Offenders Task Force that persons had been arrested for various reasons as a result of the exercise conducted earlier that day. It is the Defendant s case that Inspector Boyce visited the cells and spoke with several of the arrestees including the Claimant. Thereafter, Inspector Boyce had no further dealings with the Claimant. The Defendant categorically denied that the Claimant was informed that Inspector Boyce wanted to see him and that he was taken out of the cell and carried to Inspector Boyce s office. The Defendant also denied that the Claimant was slapped, hit, threatened or otherwise assaulted or beaten by Inspector Boyce or by any other police officer, or that Inspector Boyce instructed any police officer to charge the Claimant at all. [14] The Claimant was formally charged by PC Small for the offences of using insulting language to PC Small contrary to SECTION 49 of the SUMMARY OFFENCES ACT CHAPTER 11:02 and with resisting Constable Small in the execution of his duty contrary to SECTION 29 of the OFFENCES AGAINST THE PERSON ACT CHAPTER 11:08. [15] The Claimant was taken to the Port of Spain Magistrate s Court the following day (the 7 th October 2009) when he was remanded on bail to the 8 th October On the 26 th April 2010 the charges against the Claimant were dismissed by Her Worship M. Murray. -6-

7 THE EVIDENCE [16] The evidence filed on behalf of the Claimant in these proceedings comprised solely of the Claimant s witness statement filed on the 4 th May [17] The Defendant filed several witness statements as outlined below: a. The witness statement of Police Constable Jacey Small filed on the 31 st May 2012; b. The witness statement of Police Inspector Randolph Boyce filed on the 31 st May 2012; c. The witness statement of Police Inspector Sahadeo Singh filed on the 22 nd June 2013 (The Claimant s evidence in respect of Inspector Singh was struck out during evidential objections. Inspector Singh therefore was relieved from testifying in this matter after Counsel for the Claimant indicated that this witness was not necessary for crossexamination); and [18] The witness statement of Police Constable Franklyn Hall was filed on the 22 nd June This witness failed to appear on the date of the trial. Counsel for the Defendant was prepared to close its case in the absence of Police Constable Hall unless Counsel for the Claimant was desirous to have the witness attend court to be cross examined on his witness statement. Counsel for the Claimant indicated that he did not require PC Hall for cross examination. -7-

8 Jonathan Moore [19] The Claimant testified that he was home at Building #1 Apartment 1-4 Bath Street, Port of Spain on 6 th October 2009 at approximately 2:30 pm when police arrived on the compound. The officers instructed all persons outside to go into their homes failing which they would be arrested for loitering. The Claimant went to his apartment door and stood next to it. [20] While standing there he received a call from his friend Odinga who lived at Basilion Street close to Bath Street. He went to Odinga s home where he observed clothes that he had left there damaged by paint. He returned to his apartment where he asked the officer there about his ruined clothes at Odinga s apartment. One of the officers told him that he was disrespectful and ordered another officer to lock up the Claimant. At this point the Claimant stated that he was only seeking his rights whereupon PC Small informed him that he was being arrested for loitering. He was put in a SUV and taken to the Besson Street Police Station where he was severely beaten by several police officers in Inspector Boyce s office. He related that Inspector Boyce, who was present during this attack, assaulted him also. Cross examination of Jonathan Moore [21] This Claimant admitted that he was arrested later than 2:30 pm, closer to 4:30 pm. He stated that when the police told everyone to go inside otherwise they would be locked up for loitering, he went inside. Mr. Moore admitted that in his witness statement he said that he stood outside -8-

9 his door. He also stated that neither he nor the residents listened to the police when they ordered them inside their homes. [22] In answer to Counsel, the Claimant indicated that there were residents around when he, a man and a woman were also arrested. The woman, who was about thirty feet away from the Claimant was arrested before the Claimant. This Claimant denied speaking to any of the officers in an angry tone of voice even though he was angry. It was his testimony that when the woman was arrested another man began making noise and he too was arrested. The Claimant testified further that he observed one of the officers slap the woman at the time of her arrest. This was not included in the Claimant s witness statement. His explanation for this new item of evidence was that he did not remember it at the time that he gave his witness statement. The Claimant denied that he was arrested before the man and woman. [23] The Claimant stated that he was put in a holding bay upstairs and not in a cell. He asserted that the cells were downstairs in the police station. However, in his witness statement he had said that he was put in a cell. The Claimant testified he was the only person taken out of his cell and taken to Inspector s Boyce s office where the latter and other police officers assaulted him. [24] Mr. Moore explained that he was slapped by Inspector Boyce whereupon he fell to the ground; he could not say what happened immediately thereafter because he passed out. The Claimant could not say for sure how long he was unconscious or how many lashes he received from the -9-

10 officers. He was in severe pain and was semi-conscious; he was slapped, cuffed and kicked. He attempted to block some of the blows with his hands but was slapped, kicked and cuffed all over his body. As a result he suffered severe pain during the assault and for some time afterward. [25] I note that this Claimant did not say in his witness statement that he was cuffed, kicked or how many lashes he got. He stated that he wiped blood from his nose on his jersey. He testified that he got bail the same day from a Justice of the Peace and went home that night; he was taken to court the next day. This Claimant testified that he complained to Inspector Singh and his father Inspector Moore but could not remember if he complained to the Police Complaints Authority. [26] Mr. Moore asserted that PC Small only attended the matter once. [27] Mr. Moore testified that the police officers have beaten him before this incident on prior occasions they broke his fingers and gave him a wound to the head. EVIDENCE FOR THE DEFENCE Witness Statement of Police Constable Jacey Small [28] PC Small testified that on 6 th October 2010 he and several officers of the Repeat Offenders Programme attached to the Besson Street Police Station went on patrol and exercise in Bath Street, East Dry River, Port of Spain. -10-

11 Upon arrival the officers split into groups and began to execute search warrants and conduct searches. [29] About 4:30 pm whilst in company with Police Constables Gloud and Hall he observed the Claimant speaking in a loud tone of voice gesticulating saying Boy allyuh is stupid police, why all yuh ain t go from here? and We living here we could do what we want. He observed that the Claimant appeared to agitate persons around him. He believed that the Claimant was making use of insulting language which could cause persons around him to commit a breach of the peace and he was disturbing the peace himself. [30] He together with Police Constables Gloud and Hall approached the Claimant. He identified himself to the latter by his Trinidad and Tobago Police Service Identification Card. PC Small explained that he was dressed in police uniform and he introduced the other officers with him. He warned the Claimant that he was committing an offence of using insulting language and asked him to desist whereupon the Claimant shouted All yuh is fools and cartoon characters. My father is Sergeant Moore. He done tell me what time it is already. Ah go make allyuh lose allyuh work. The Claimant gesticulated [31] At this time PC Small observed that persons in the vicinity were bceoming agitated against the police. He then informed the Claimant of the offence...using language with an intent to, or which might tend to, provoke any other person to commit a breach of the peace. PC Small cautioned him and told him he was under arrest for the offence and attempted to hold -11-

12 onto him. The Claimant pulled away from him and backed away gesticulating wildly in a threatening manner shouting, Me ain t going nowhere. You can t lock me up. [32] With PC Hall s assistance, PC Small was able to handcuff the Claimant. He then informed the Claimant that he had committed the offence of resisting arrest to which the Claimant replied, Ah go make allyuh loss allyuh work. He then informed the Claimant of his rights and privileges to which the Claimant made no requests and remained silent. [33] At the Besson Street Police Station the Claimant along with other arrested persons were placed in a cell. PC Small then reported to Inspector Boyce, the officer in charge of the unit, that he had returned from Bath Street exercises and arrested the Claimant for insulting language and resisting arrest. Inspector Boyce visited the cell and asked the Claimant if he knew why he was arrested. PC Small said he heard the Claimant tell Inspector Boyce that he was arrested for insulting language and resisting arrest. [34] PC Small denied ever taking the Claimant to Inspector Boyce or telling the Claimant that Inspector Boyce wanted to see him. He then charged the Claimant. [35] This police constable also denied assaulting the Claimant alone or in the company of the other officers. Additionally, he denied that the Claimant asked him to call his father, Sergeant Moore. PC Small said that he was not instructed by Inspector Boyce to charge the Claimant he did so because of his behaviour; what he said led PC Small to believe that this Claimant -12-

13 was trying to provoke the persons around him, including himself and to commit a breach of the peace. [36] PC Small attended court on the 7 th October The Justice of the Peace read the charges to the Claimant who was remanded on bail on the 8 th October On 26 th April 2010 he advised the Court and Process Department at the Magistrates Court that he was running late. When he arrived the matter was already dismissed. Cross examination of PC Jacey Small [37] In cross-examination this witness stated that about five persons were standing around in a group near the Claimant. He was not present when the Claimant complained about paint being thrown on his clothes. He testified that he was not aware of an officer telling the Claimant that he was too disrespectful. PC Small denied that the Claimant s account leading up to his arrest was correct. He stated that when he took the Claimant to the Besson Street Police Station he didn t know what to charge him for. [38] PC Small testified further that he didn t know what the Claimant meant by describing the police as cartoon characters; he therefore interpreted what the Claimant said. He admitted that the Claimant spoke to a group of officers including himself but he was the only one who reacted to what was said. PC Small testified that the Claimant used insulting language to him by calling him a fool in the presence of members of the public. He -13-

14 asserted that after he spoke to Boyce, he, PC Small, along with another officer accompanied Inspector Boyce to the cell where the Claimant was kept and Inspector Boyce spoke to the Claimant for approximately one minute. [39] PC Small, in answer to Counsel, revealed that although he, Small was not the senior officer on the exercise, he reported to Inspector Boyce upon their return to the Besson Street Police Station. Witness Statement of Inspector Boyce [40] This officer testified that in October 2009 he was the Officer in Charge of the Repeat Offenders Program Task Force based at the Besson Street Police Station. On 6 th October 2009 officers of the Unit left the Station to conduct patrols and exercises in the Bath and Basilon Streets area of East Dry River, Port of Spain. Officers returned at around 4:40 pm in company with several persons arrested by said officers. [41] It was the testimony of Inspector Boyce that he exited his office and went to the holding bay area where the officers reported to him they informed him of the reasons for the various arrests made. He asserted that it was his practice to speak to arrested persons in order to ascertain whether they knew and understood why they were arrested. [42] Inspector Boyce stated that PC Small reported that he had arrested Jonathan Moore, the Claimant; he was aware at the time of said arrest that the Claimant s father was a Police Inspector with the Trinidad and Tobago Police Service. -14-

15 [43] Inspector Boyce spoke to the Claimant asking him if he knew why he was arrested. The Claimant replied that it was for using insulting language and resisting arrest. The Claimant also stated that he was upset about paint falling on clothes belonging to his friend during a search of the latter s house in Basilon Street by the police. Inspector Boyce then spoke with several other arrested persons, left the cells and returned to his office. He had no further interaction with the Claimant or other arrested persons. Cross examination of Inspector Boyce [44] In cross examination it was the testimony of this witness that about 8 or 9 persons were arrested that day, among them was one female. The female was place in an interrogation room while the males were placed in holding cells. [45] Inspector Boyce testified that when he came out of his office toward where the prisoners were held, he saw that the Claimant was one of the persons arrested. He explained that his office is 15 feet away from the holding bay and that the sentry is on the right side located about 3 to 4 feet aware from his office. [46] Inspector Boyce stated when he first saw PC Small he was in the vicinity of the two interview rooms where they were searching prisoners. When he came to the area, he spoke to several prisoners including the Claimant. PC Small and the other officers were present when he spoke to the Claimant. Inspector Boyce also spoke to the female prisoner and one or two other prisoners. When he was finished he returned to his office. -15-

16 [47] Inspector Boyce also testified that he spoke to the Claimant for less than 5 minutes because the Claimant was quarrelling about paint falling on his friend s clothes; while this was going on, PC Small was in the general area. Inspector Boyce asserted that no officer accompanied him when he spoke to the Claimant and the other prisoners. He also stated that upon the prisoner arrival, he went to the area where they were. ISSUES i. Whether PC Small had reasonable and probable cause to believe that the deceased was committing an offence pursuant to Section 49 of the Summary of Offences Act Chap 11:02 [48] The Claimant was charged for the offence of using insulting language to Jacey Small contrary to SECTION 49 of the SUMMARY OFFENCES ACT CHAP 11:02. [49] SECTION 49 of the SUMMARY OF OFFENCES ACT provides, Any person making use of any insulting. Annoying or violent language with intent to, or which might tend to, provoke any other person to commit a breach of the peace, and any persons who uses any obscene, indecent or profane language to the annoyance of any resident or person in any street, or of any person in a place in which the public is admitted or had access, or who fights or otherwise disturbs the peace is liable to a fine or two hundred dollars or to imprisonment for thirty days. -16-

17 [50] In Civil Appeal No 267 of 2011 Nigel Lashley v The Attorney General of Trinidad and Tobago, Narine JA considered the issue of unlawful arrest and the law that is applicable. At paragraph 12 Narine JA opined: It is well settled that the onus is on the police to establish reasonable and probable cause for the arrest: Dallison v Caffrey (1964) 2 ALL ER 610 at 619 D per Diplock LJ. The test for reasonable and probable cause has a subjective as well as an objective element. The arresting officer must have an honest belief or suspicion that the suspect had committed an offence and this belief or suspicion must be based on the existence of objective circumstances, which can reasonably justify the belief or suspicion. [51] No evidence was adduced before the Court to support a charge pursuant to SECTION 49. The evidence in chief of PC Small was that the Claimant gesticulated at PCs Small, Hall and Gloud and stated Boy all yuh is stupid police. Why all yuh ain t go from here? and We living here. We could do what we want. He noticed that his words and actions appeared to be agitating the other persons grouped near him. After he approached the Claimant as a result of his concern that the Claimant s words may have provoked persons around him to commit a breach of the peace and warned him to desist, the Claimant railed at him shouting all yuh is fools and cartoon characters. He admitted that with the exception of the Claimant describing the police as stupid the rest of what he said was not insulting language. He considered that this was a sufficient basis to charge the Claimant pursuant to SECTION 49. He argued that the comments -17-

18 were addressed to himself and other police officers yet he was the only one who reacted to the comment. [52] Significantly, he gave no details about his observations that the Claimant s words appeared to be agitating a group of persons around him. In the circumstances where the officer claimed to have arrested the Claimant pursuant to SECTION 49, an important element of the offence which must be proved is that the words/acts of the Claimant might tend to or intended to provoke another person to commit a breach of the peace. No such evidence was adduced; indeed it was PC Small s evidence in cross examination that upon the arrival of the police on the compound: a. the residents did not welcome police b. when he took the Claimant to the Besson Street Police Station after arresting him he did not know what charge(s) he could lay against him. [53] I found the latter statement to be incredible given the simple straightforward allegation against the deceased that he used insulting language with intent to or which might tend to provoke another person to commit a breach of the peace. It seems to me that had PC Small really observed this, he could have had no doubt as to the charge that had to be preferred against the deceased. [54] This confusion is borne out by the charge that he eventually laid against him: that he used insulting language to Jacey Small contrary to SECTION 49 of the SUMMARY OF OFFENCES ACT. This charge is unknown to law. Notwithstanding this fact, I still had to examine the evidence in order -18-

19 to determine whether, despite the defective charge, there was reasonable and probable cause for PC Small to arrest and charge the deceased. [55] In the case of Percy v. Director of Public Prosecutions 1 the appellant entered a military air base on five separate occasions by climbing over the perimeter fence. The appellant's aim was to stage a peaceful protest about the use of the base and the abuse of byelaws relating to the base. At no time did she commit or threaten any violence or cause any damage. It was held that:...a breach of the peace had to involve violence or the threat of violence. The violence did not have to be perpetrated by the defendant himself; it was sufficient if his conduct was such that violence from some third party was a natural consequence of his action, thus giving rise to a real risk, rather than a mere possibility, of some actual danger to the peace. It followed that a civil trespass could not of itself amount to a breach of the peace unless the circumstances were such that violence would be the natural consequence as, for example, where trespassers made continued incursions in the face of threats to use violence to remove them. Since on the facts there was no evidence before the justices which entitled them to find that the appellant's non-violent acts of trespass would provoke service personnel to violent reaction, it followed that her 1 3 All ER 124 (1995) -19-

20 conduct was not capable of amounting to a breach of the peace. [56] In Redmond-Bate v. Director of Public Prosecutions 2 three claimants were preaching on the steps of Wakefield cathedral and a crowd of people gathered around them, with some shouting abuse. A police officer told them to stop preaching or they would be arrested for breach of the peace and when they refused he arrested them. The judge stated: Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having. What Speakers Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear. [57] In Dolly Kendall and others v. Mohamed Khan 3, a judgment of the Appeal Court of Guyana at page 36 paragraphs f, g and h Chief Justice Crane opined that: it is extremely unlikely the legislature contemplated facts of this kind in which the virtual complainant, a law officer, JP 789, [1999] Crim LR 998, 7 BHRC 37 Queens Bench Division 3 (1979) 26 W.I.R,

21 can be heard to complain he was so provoked that a breach of the peace seemed likely to be committed by him. It seems to me it is a fundamental principle in the law that one to whom is entrusted the keeping of the peace cannot be heard to urge the court in order to secure the conviction of another that he was so provoked by that other that there was a likelihood he would have committed a breach of the peace. As a peace enforcement officer Khan ought to use every restraint in maintaining the peace, and speaking for myself I think it would be entirely wrong for him to press the likelihood of his own wrongdoing on the court in order to secure the conviction of another, a proposition which is too monstrous to contemplate. Were the law to permit him to do so, it would only be in mockery of justice. [58] In Jarrett v. Chief Constable of West Midlands Police Service 4 where the police sought to justify an arrest on the ground that the claimant's conduct and behaviour in her presence i.e. that of becoming excited and wielding her bags - was conduct that amounted to a breach of the peace the Honourable Lord Justice Potter in giving his decision in the Court of Appeal held at paragraph 23 of the judgment stated that: The conduct of the claimant relied on by Sergeant Reece in this case involved no questions of injury or possible threat of injury to any member of the public, save, arguably, Sergeant 4 [2003] EWCA Civ

22 Reece herself. The words amounted to nothing. No verbal threats were said to have been made. Mere agitation does not involve a breach of the peace. So far as the waving of the bags was concerned, the officer did not in her evidence suggest that they were being wielded at her or were more than a symptom of the claimant's agitation. In relation to none of those matters did the officer suggest she feared imminent violence to herself or her property or that there was any reason or necessity for public alarm. [59] I accept that the Claimant was upset about the fact that his clothes had been damaged by paint and spoke to the police about it. I also accept that he uttered the words attributed to him by PC Small in his attempt to find out what happened to his clothing during a police search of his friend s house nearby where the clothes had been stored. [60] In my view, the words allegedly spoken by the Claimant to PC Small and the other officers while aggressive and to some degree insulting, do not amount to a breach of the peace nor were they capable of provoking any person to commit such a breach. Very importantly, PC Small, a Peace Officer, cannot claim that he was so provoked that there was a likelihood that he would commit a breach of the peace. There was no likelihood or probability of a breach of the peace occurring as a result of the Claimant s words or gesticulations. In the circumstances, I hold that there was no reasonable or probable cause for the arrest of the Claimant. -22-

23 [61] It is undisputed on the evidence that the Claimant was arrested and detained by the police in this matter for a period of approximately 24 hours before being released. In the circumstances I also hold that his arrest and detention was unlawful. ii. Was the Claimant assaulted at the Besson Street Police Station [62] There were material inconsistencies/discrepancies in the evidence of PC Small and Inspector Boyce which caused me to conclude on a balance of probabilities that their evidence was not credible. I accepted the Claimant s evidence that he was assaulted by police officers while at the station and suffered injury. [63] Inspector Boyce testified that he left his office and went to the area where the arrested persons were kept; however, PC Small testified that he reported directly to Inspector Boyce who was seated at the Sentry s desk and accompanied him to the cell where the Claimant was located. It was PC Small s evidence that Inspector Boyce spoke to the Claimant only while Inspector Boyce testified that he spoke to other prisoners as was his usual practice. [64] PC Small asserted that he and Inspector Boyce went directly to the Claimant at the cell where he was kept. He remained in Inspector Boyce s company while the latter spoke to the Claimant for one minute. [65] Inspector Boyce also testified that officers, including PC Small reported to him at the holding bay and not in his office or at the Sentry s desk. Indeed -23-

24 it was his evidence that the Sentry s desk was located about three to four feet away from his office. [66] Inspector Boyce stated that the first time that he saw PC Small that day the latter was in the vicinity of the two interview rooms where he and other officers were searching prisoners. Inspector Boyce asserted that these rooms are approximately fifteen feet away from his office. Upon his arrival he spoke to several persons including the Claimant while PC Small and other officers were present. [67] I note that PC Small testified that Inspector Boyce and the Claimant spoke for about one minute at the cell while Inspector Boyce said that he spoke to the Claimant for less than five minutes because the Claimant was quarrelling about paint falling on his friend s clothes. [68] This witness clearly stated that no one accompanied him when he went to speak to the Claimant. [69] The discrepancies in the evidence of PC Small and Inspector Boyce led me to believe that neither officer s account of what happened at the station could be relied upon. It is odd to say the least that Inspector Boyce would be seated at the Sentry s desk as PC Small alleged. As Inspector Boyce asserted he was not the Sentry on duty but the Senior Officer in Charge of the Repeat Offender Programme Task Force. There can be no reasonable explanation as to why PC Small, one of the junior officers on the exercise, would report directly to Inspector Boyce about what transpired on that duty, the persons arrested; even stranger still was PC Small s evidence that -24-

25 he accompanied Inspector Boyce to the Claimant s cell, an account which Inspector Boyce flatly denied. [70] I formed the view that both officers tailored their evidence to place Inspector Boyce out of his office contrary to the Claimant s allegation. I accept the Claimant s account that he was targeted and assaulted by these officers. There was no reason for PC Small to take Inspector Boyce to meet someone charged with a very minor offence still less reason for Inspector Boyce to remain talking to him for less than 5 minutes. I do not consider the evidence of either witness credible. I hold that on a balance of probabilities that the Claimant has established that Inspector Boyce and the officers of the Repeat Offenders Task Force assaulted him. [71] I note that the injuries described in the Medical Report attached to the Claimant s Statement of Case are not consistent with the severe beating described by the Claimant. He spoke of being kicked, cuffed, slapped all over his body and trying to block some of the blows. The medical report revealed severe tenderness to the mid-section and head. In my view, the severity of the assault described by the Claimant should have occasioned injury/tenderness to other parts of the body. [72] The medical report was annexed to the Claimant s witness statement; however, no witness summary of the doctor who signed the medical report or subpoena for him to attend and give evidence was filed. The Claimant also did not file a Hearsay Notice in respect of the medical report. The Defendant submitted that there is no medical evidence before the court to support the Claimant s allegation of assault; in the -25-

26 circumstances the Claimant has not established on a balance of probabilities that he was assaulted by the police. [73] I have already determined that the Claimant was assaulted by the police. I exercise my discretion under CIVIL PROCEEDING RULES 30.8 to allow the Claimant to adduce hearsay evidence in the form of the medical report. No explanation has been forthcoming from the Defendant to account for the injury sustained by the Claimant while he was in their custody [74] The injuries sustained are relatively minor and so I award the sum of $40, as damages for the assault. iii. Has the Claimant established on a balance of probabilities that his arrest and aforesaid charges amounted to malicious prosecution [75] The essential ingredients of the tort of malicious prosecution are set out in Clerk & Lindsell on Tort 5 : In an action for malicious prosecution the claimant must show first that he was prosecuted by the defendant, that is to say that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant. Evidence of malice of whatever degree cannot be invoked to dispense with or 5 20 th Ed. Pg 1070, para 16:09-26-

27 diminish the need to establish separately each of the first three elements of the tort. [76] The Claimant must establish on a balance of probabilities that the prosecution was malicious. As Rajnauth-Lee J opined in Cecil Kennedy v The Attorney General of Trinidad and Tobago 6 : Malice must be proved by showing that the police officer was motivated by spite, ill-will or indirect or improper motives. It is said that malice may be inferred from an absence of reasonable and probable cause but this is not so in every case. Even if there is want of reasonable and probable cause, a judge might nevertheless think that the police officer acted honestly and without ill-will, or without any other motive or desire than to do what he bona fide believed to be right in the interest of justice: Hicks v Faulkner [1987] 8 QBD 167 at page 175. [77] Therefore, where a police officer believed that he had enough evidence to prosecute the accused based on his understanding of the law, no malice would be inferred. [78] It is clear that PC Small believed erroneously that he could prosecute a charge of using insulting language to [himself] Jacey Small contrary to SECTION 49 of the SUMMARY OF OFFENCES ACT. The fact that the Claimant may have gesticulated and referred to the police as stupid could 6 Civ App No 87 of

28 not by itself form the basis of this charge. I have already pointed out that there is no evidence to show intent or tendency to provoke a breach of the peace. [79] The fact that I came to the conclusion that there was no reasonable or probable cause for the arrest of the Claimant could not by itself lead me to the conclusion that PC Small acted maliciously. Had that been all the evidence I may have come to the conclusion that more likely than not, that whilst he misapprehended the law, there was no malice or ill will. When I take into account the circumstance of the assault at the police station however, I formed the view that on a balance of probabilities that the prosecution was malicious. I relied on the following facts as outlined below: i. the fact of the assault of the Claimant at the station in circumstances where PC Small believed that the Claimant was disrespectful and had insulted him in public; ii. iii. there was clearly a history between the Claimant and these officers the lack of credit worthiness of the evidence of both PC Small and Inspector Boyce satisfied me on a balance of probabilities that the prosecution of the Claimant was malicious. [80] I inferred from these circumstances that the motive for his arrest, charge and prosecution was an improper one. [81] The law is that a party may not have to establish actual malice or ill will. It can be inferred from the circumstances of the case. Having found that the Claimant was assaulted in the police station I formed the view that those -28-

29 are objective circumstances which I can take into account in coming to the conclusion that there was an improper motive in prosecuting this matter against the Claimant. It was no part of the Defendant s case that the Claimant had to be violently subdued and this may have occasioned some tenderness on his head and chest. No explanation had been forthcoming and in light of that I came to the conclusion that the Claimant established on a balance of probabilities that the prosecution was malicious. iv. Should an Award of Exemplary Damages be made [82] According to Mc Gregor on Damages 7 : The primary object of an award of damages is to compensate the plaintiff for the harm done to him; a possible secondary object is to punish the defendant for his conduct in inflicting that harm [83] In Rookes v Barnard 8 Lord Devlin stated: In a case in which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may of course be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and 7 18 th Ed, Para [1964] AC 1129, page

30 to deter him from repeating it, then they can award some larger sum. [84] Lord Devlin in Rookes v Bernard 9 supra identified three categories of cases where the court has discretion to award exemplary damages. These three categories of cases are: i. Cases of oppressive, arbitrary or unconstitutional action by servants of the Government, ii. iii. Cases where the defendant s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and, Cases in which exemplary damages are expressly authorized [85] In this case the Claimant was arrested and charged for an offence which he had not committed, nor was the offence one known to law. I have held that there was an absence of reasonable and probable cause for said arrest and that said arrest was unlawful. Following upon the unlawful arrest aforesaid, I have also concluded that the Claimant s prosecution was malicious. [86] However, the assault on the deceased while he was in police custody amounts to arbitrary and oppressive conduct on the part of the police for which the deceased must be compensated. This physical attack was unjustified and unlawful. It is unfortunate that an officer of the rank of Inspector was involved in this unlawful assault upon the deceased. It is of even greater concern that no measures have been put in place such as the 9 Pages

31 introduction of video cameras in police stations, especially in areas where prisoners are held to deter the actions of a few renegade officers. [87] I consider this a case in which an award of exemplary damages should be made. Accordingly, I award the sum of $40, under this head. CONCLUSION [88] I therefore make the following Orders: 1. The Defendant do pay to the Claimant damages for trespass to the person in the sum of $40,000.00; 2. That the Defendant to pay to the Claimant Damages for false imprisonment and malicious prosecution in the sum of $15,000.00; 3. Exemplary Damages in the sum of $40,000.00; 4. Special Damages in the sum of $2,500.00; 5. Interest of the rate of 6% from the date of filing 16 th June 2011 until the date of judgment; 6. The Defendant to pay the Claimant s costs in the sum of $25, Joan Charles Judge -31-