IN THE HIGH COURT OF JUSTICE. Between AINSLEY GREAVES. And THE ATTORNEY GENERAL OF

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. C.V Between AINSLEY GREAVES Claimant And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr. Justice Frank Seepersad Appearances: 1. Mr. Ronald Simon and Ms. Ayanna Humphrey for the Claimant 2. Mr. Sean Julien and Mr. Safraz Alsaran for the Defendant Date of Delivery: 30 th September, 2014 Page 1 of 16

2 DECISION 1. By Fixed Date Claim form filed on the 9 th July, 2012, the Claimant Ainsley Greaves, instituted this action wherein he claims that his constitutional rights were breached, when the Trinidad and Tobago Defence Force discharged him on the grounds that his services were no longer required and failed to institute disciplinary proceedings against him prior to his discharge on the 24 th January, The Claimant alleges that his discharge was in breach of the principles of natural justice and contrary to Sections 4 (a), 4 (b), 5 (2)(e) and 5 (2) (h) of the Constitution of Trinidad and Tobago and is Ultra Vires the Defence Act Chap 14: In support of his claim, the Claimant sought the following declaratory and compensatory reliefs: i. A declaration that the failure of the Trinidad Defence Force to institute disciplinary proceedings against the Claimant prior to his discharge on 24 th January, 2012 was in breach of the principles of natural justice since at no time prior to the decision was the Claimant afforded any sufficient opportunity to be heard in relation to the allegation and/or any penalty, including discharge and amounts to an infringement of the Claimants right to a fair trial under section 5 (2) (e) of the Constitution; ii. A Declaration that his discharge on the 24 th January,2012 from the Trinidad and Tobago Defence Force on the grounds that his services were no longer required, amounts to an infringement of the Claimant s Page 2 of 16

3 constitutional right to the enjoyment of property under section 4 (a) of the Constitution of Trinidad and Tobago; iii. A declaration that the failure of the Trinidad and Tobago Defence Force to institute disciplinary proceedings against the Claimant prior to his discharge on the 24 th January, 2012, amounts to an infringement of the Claimant s constitutional right not to be deprived of the right to enjoyment of property except by due process of law under section 4 (a) of the Constitution; iv. A declaration that the failure of the Trinidad and Tobago Defence Force to institute disciplinary proceedings against the Claimant prior to his discharge on 24 th January 2012, is unfair, unreasonable, ultra vires the Defence Act Chap 14:01, an abuse of power and authority, a failure to consider the Claimant s representation or defence in relation to an allegation, the fettering of discretion by adopting and applying an inflexible policy and a breach of the Claimant s rights to natural justice amounts to an infringement on the Claimant s constitutional right to equality before the law and the protection of the law under section 4 (b) of the Constitution; v. A declaration that the failure of the Trinidad and Tobago Defence Force to institute disciplinary proceedings against the Claimant prior to his discharge on 24 th January 2012, without being afforded any or any sufficient opportunity to be heard in relation to the allegation and/or penalty, including discharge amounts to an infringement of the Claimant s Page 3 of 16

4 constitutional right to procedural provisions as are necessary for the purpose of giving effect and protection to the rights and freedoms under section 5 (2) (h) of the Constitution ; vi. An order that Monetary compensation, including aggravated and or exemplary damages for distress, inconvenience and loss suffered by the Claimant as a result of the contravention and breach of his fundamental rights under the Constitution be assessed and paid to the Claimant; vii. An order that monetary compensation and loss of salary, emoluments and benefits suffered by the Claimant as a result of the contravention and breach of his fundamental rights under the constitution be assessed and paid to the Claimant; viii. All such writs and directions as the court may consider appropriate for the purpose of enforcing, or securing the enforcement of and/or redressing the contravention of the Human Rights and Fundamental Freedoms to which the Claimant is entitled under the Constitution. ix. Such further and/or other reliefs as the nature of the case may require; and x. Costs. Summary of Facts 3. On the 1 st May, 2004, the Claimant enlisted in the Coast Guard of the Trinidad and Tobago Defence Force, as an able body seaman # Upon expiration of his existing term of engagement on the 12 th December, 2010, the Claimant applied for re-engagement for a further six years. It came to the attention of the Page 4 of 16

5 Acting Commanding Officer Pritchard, that the Claimant had previous convictions, which he failed to indicate on the attestation form when he enlisted into the Trinidad and Tobago Defence force and on the Vetting Form he filled out for an Armourer Gunner (II) Training Course in On the 8 th February, 2011 a letter was sent to Chief of Defence Staff requesting approval for the Claimant s discharge on the ground that when he enlisted in the Trinidad and Tobago Coast Guard and when he applied for the training course he failed to disclose on the aforementioned forms the fact that on the 26 th January, 2004 he was found guilty on two (2) charges of possession of a Firearm and ammunition contrary to the Firearms Act. 6. On the 24 th January, 2012 the Claimant was discharged from service on the ground services no longer required. The stated reasons for his discharge were- (i) his failure to indicate on his attestation form prior to enlistment on the 1 st May, 2004, that he was found guilty of two (2) charges of Possession of Firearm and Possession of Ammunition on the 26 th January, 2004 at the Arima Magistrates Court and (ii) his failure to declare his previous convictions on his vetting form prior to commencing training in the Armourer Gunner (II) Training Course in Claimant s Case 7. The Claimant contends that he was summarily dismissed without any prior notice and without having had an opportunity to be heard, and in breach of the rules of natural justice. The Claimant further asserts that upon reapplying to be re-engaged his Page 5 of 16

6 application was approved by Commander Mark Williams and that the Coast Guard had discontinued the request for his discharge and further that his re-engagement was confirmed by Memorandum No. 7933/2011 dated 14 th May, The Claimant asserts that he was subsequently instructed to proceed on all his vacation leave pending discharge and he thereafter made a request to see the Chief of Defence Staff and the Defence Council relative to this matter. Whilst on vacation leave, he was summoned by Commander Williams on the 9 th June 2011 and was informed that he was already discharged from the Trinidad and Tobago Defence Force (TTDF) and his request was not forwarded to the Defence Council. The Claimant contends that despite numerous correspondences which were sent to the Chief of Defence Staff and to the office of the Defence Council, he was not given an opportunity to appear before the Defence Council to be heard in relation to any allegation against him and that a summary decision was taken to discharge him. 8. The Claimant contends that the action of the Chief of Defence Staff is contrary to the Defence Act, and standing orders/ regulations pertaining to the validity of attestation and enlistment. Defendant s Case. 9. The Defendant contends that the Claimant was discharged from the Defence Force with effect from the 9 th January, 2012, in accordance with the provisions of the Defence (Enlistment and Service) Regulations. Page 6 of 16

7 10. The Claimant s discharge was initiated by Commander Pritchard by letter dated 8 th February, 2011, and approval was granted by the Chief of Defence Staff for his discharge on the 10 th February, Thereafter several administrative matters had to be addressed to give effect to the discharge. 11. The Defendant further contends that a discharge is an administrative process which is initiated in writing by the Commanding officer to the Chief of Defence Staff with an explanation of the said request. The Chief of Defence Staff then considers the request and makes a determination based on the information presented to him. 12. The Defendant therefore contends that there has been no breach of the Claimant s fundamental rights as guaranteed under the Constitution. Issues: The relevant issues to be determined in this matter are as follows: (a) Whether the discharge of the Defendant was in compliance with the provisions of the Defence Act and/or Defence Enlistment Regulations Chap 14:01? (b) Whether the Claimant was discharged or dismissed by the TTDF without first being charged for an offence and/or without being given an opportunity to be heard, is in contravention of his rights under Section 4 (a) 4 (b) and 5 (2) (e) and 5 (2) (h) of the Constitution? Page 7 of 16

8 Law 13. It is an offence under the Defence Act, Chapter 14:01 for a person to knowingly make a false answer to any question contained in an attestation paper which was put to him by a recruiting officer. Section 32 (1) of the Defence Act Chap 14:01 states: 32. (1) Any person appearing before a recruiting officer for the purpose of being attested who knowingly makes a false answer to any question contained in the attestation paper and put to him by or by the direction of the recruiting officer, is liable on summary conviction to a fine of three hundred dollars or to imprisonment for three months. (2) For the avoidance of doubt it is hereby declared that a person may be proceeded against under this section notwithstanding that he has since become subject to military law. 14. Section 31 of the Defence Act Chap 14:01 states: 31. (1) Where a person has made such declaration upon his attestation as may be prescribed and has thereafter received pay as an other rank (a) the validity of his enlistment is not to be called in question on the grounds of any error or omission in his attestation paper; (b) after the expiration of a period of three months from the date on which he made the declaration, he shall be deemed to have been validly enlisted notwithstanding any non-compliance with the requirements of this Act or any regulations made as to enlistment or attestation or any other ground whatsoever (not being an error or omission in his attestation paper) and he shall be deemed to be an other rank until his discharge. 15. The provisions of section 70 and 71 of the Defence Act, however, speaks to cases where an officer knowingly makes false statements in any document in relation to enlistment or otherwise. Section 70 & 71 provides as follows: Page 8 of 16

9 Section 70: Any person who knowingly makes a false answer to any question set forth in any document required to be completed in relation to his enlistment and who subsequently becomes subject to military law is liable, on conviction by Court-martial, to imprisonment for three months or less punishment. Section 71: Any person subject to military law who (a) makes, signs or makes an entry in any service report, return, pay list or certificate or other service document, being a document or entry which is to his knowledge false in a material particular; (b) alters any service report, return, pay list or certificate or other service document, or alters any entry in such a document, so that the document or entry is to his knowledge false in a material particular, or suppresses, defaces or makes away with any such document or entry which it is his duty to preserve or produce; (c) with intent to defraud, fails to make an entry in any such document; or (d) aids, abets, commands, counsels, procures or connives at the commission by another person subject to service law of an offence against this section or the corresponding section of the appropriate service law, as the case may be (whether or not he knows the nature of the document in relation to which that offence will be committed), is liable, on conviction by Court-martial, to imprisonment for two years or less punishment. 16. The Court must therefore determine the co-relation, if any, between section 31(1) and Sections 70 and 71 of the Defence Act. Section 31 (a) of the Act speaks of and error or omission, and Section 31 (b) provides for a three (3) month period within which any such error or omission can be addressed and if not, then the officer will be deemed to have been validly enlisted. In the view of this Court the error or omission, must be in the nature of an irregularity such as, but not limited to, a misspelt name, wrong date of birth, incorrect address, errors with respect to one s academic record and the grades Page 9 of 16

10 obtained. Sections 70 and 71 relates to the creation of an offence and the sanctions to be imposed where a false statement or declaration has been made and provision is made for imprisonment upon conviction by a court martial. 17. In this case, the Court views the Claimant s failure to disclose his previous convictions for firearm and ammunition not as an irregularity but as an act of fundamental misrepresentation. 18. The Claimant has not disputed the fact of his convictions but has sought to explain the circumstances that resulted in same. The explanation advanced is not relevant and does not change the fact that the Claimant has previous convictions of a serious nature. If what the Claimant has outlined is accurate, it may have been open to him to either appeal his convictions or seek to obtain a pardon from His Excellency The President of the Republic, neither course of action was on the evidence adopted and the convictions remain on his record. 19. The Coast Guard is one of the pillars of this Nation s national security framework and public respect and regard for all the security services and agencies of the State is of fundamental importance. The law and applicable conventions disentitles a person who has a criminal record from being enlisted to serve in the Nation s protective services, as public confidence in these instituition will be eroded if persons with criminal records are enlisted. Those charged with the mandate of upholding the law and defending the Nation s boarders must be citizens of integrity with unblemished records. 20. It cannot be that the system can allow persons with criminal records, to attempt to enlist by withholding the fact of their criminal convictions, in the hope that, same is not detected and that three (3) months elapses from the time of enlistment. The issue of the public s confidence in the Nation s protective and security services must be in the forefront of the national agenda and any unacceptable administrative ineffiency that fails to detect the veracity of any applicant s information and to Page 10 of 16

11 verify prior to enlistment whether a proposed enlistee has a criminal record, cannot be used to justify the enlistment of a person, who has a criminal record and who ought never to have been enlisted. It is inexcusable that the proper systems have not been put in place to ensure that persons who have criminal records are not recruited. 21. All National Security Agencies must ensure that proposed applicants are properly vetted and the brazen attempts by convicts to become enlisted must be detected and denied. It is an abhorrent neglect of their responsibility when simple background checks are not properly undertaken and this level of inefficiency does not augur well for the reputation of and public confidence in the Defence Force. The Chief of Defence Staff and National Security Heads, will be well advised to immediately implement proper criminal record vetting checks and cross checks so as to ensure that convicted persons are never again enlisted for service. 22. On the evidence, in December 2010, when the Claimant applied for re-engagement, it was brought to the attention of Acting Commanding Officer Pritchard, that the Claimant had previous convictions. At paragraphs 3-7 of his affidavit filed on the 30 th November, 2012 Commander Pritchard stated as follows: In or about January 2011 I was informed by Lieutenant Commander Lorenzo Chariandy of the Claimant s previous convictions for possession of a firearm and ammunition contrary to the Firearms Act. I subsequently received official correspondence dated January 31 st, 2011 from Major G. Small, the then Head of the Defence Force Intelligence Department advising that on January 26 th, 2004, approximately four (4) months prior to the Claimant s enlistment into the Defence Force, he had pleaded guilty to the said offences and was fined. Attached to the said correspondence was certified extract from the Arima Magistrates Court dated December 7 th, 2010 evidencing the Claimant s guilty plea and conviction in relation to the said offences on January 26 th, a true copy of the said Arima Magistrate s Court extract dated December 7 th, 2010 is now produced and shown to me hereto annexed and marked H.P.1. Page 11 of 16

12 The said convictions predated the Claimant s enlistment into the Coast Guard and were not disclosed by him on his attestation form or on his Vetting Form prior to commencing training in the Armourer Gunner (II) Training Course in A true copy of the Claimant s Enlistment Papers and Attestation Form is now produced and shown to me hereto annexed and marked H.P.2. This was a breach of the Defence Act, Chapter 14:01 and the Defence (Enlistment and Service) Regulations ( Regulations ). It is considered a serious breach in the Defence Force and so I summoned the Claimant to my office and informed him that I would be seeking approval from the Chief Defence Staff for his discharge from the service on the grounds of Service No Longer Required as a result of the information contained in H.P.1. I informed the Claimant that his discharge was being sought as a result of his failure to indicate on his Attestation Form and on his Vetting Form prior to commencing training in the Armourer Gunner (II) Training Course in 2010 that he was convicted on two (2) charges of possession of a firearm and ammunition contrary to the Firearms Act. I cannot recall the Claimant s response to my claims. Following the meeting with the Claimant, by memorandum dated February 8 th, 2011, I submitted a request for the Claimant s discharge from the Coast Guard on the grounds of Services No Longer Required. A true copy of the request for discharge dated February 8 th, 2011, is now produced and shown to me hereto annexed and marked H.P.3. I forwarded same together with the certified extract from the Arima Magistrate s Court evidencing the Claimant s guilty plea and conviction to the Chief of Defence Staff. On February 21 st, 2011 I handed over command of the Coast Guard to then Commander Mark Wiliams. Page 12 of 16

13 23. In the instant case, the Claimant has not disputed the fact of his previous convictions nor is it disputed that the said information was not included in his Attestation Form filled out prior to his enlistment or on the Vetting Form for Amourer Gunner Training Course. 24. The said endorsements made by the Claimant were clearly inaccurate and dishonest. Section 85 of the Defence Act provides: Before an allegation against a person subject to military law (herein referred to as the accused) that has committed an offence against this Part is further proceeded with, the allegations shall be reported in the form of a charge, to the accused s commanding officer and the commanding officer shall investigate the charge in the prescribed manner. 25. The Vetting Form for the Armourer Gunner (II) Training Course and the enlistment attestation form, in the view of this court fall within the provisions of see 70 of the Act as being documents in relation to enlistment, further the said vetting form can also be considered as a service document under section 71 (a) of Act. Accordingly the Claimant s refusal and /or failure to include his previous convictions on the said forms properly invoked the provisions of sections 70 and 71 of the Act, and the process outlined at sections 85 to 92 of the Act in relation to an investigation and the summary dealing with the charges could have been activated. 26. Commander Pritchard received all the necessary documentation to establish the fact of the Claimant s previous convictions, including a court extract dated December 7 th, 2010 confirming same, as well as the Claimant s Attestation Form and the Vetting Form for the Armourer Gunner (II) Training Course. The Court accepts Pritchard s evidence that he met with the Claimant prior to issuing the request for discharge to the Chief Staff Defence Staff and the fact of the Claimant s convictions has not been disputed. Instead of remanding the Claimant for trial by Court Martial, Pritchard elected to seek the approval of the Chief of the Defence Staff, for the Claimant s discharge on the grounds of Service No Longer Required. Page 13 of 16

14 27. Section 28 of the Act provides for the discharge of an officer by a competent authority at any time during the currency of any term of engagement upon such grounds as may be prescribed at section 5 ( 2) of the Defence (Enlistment and Service) Regulations. The said section outlines the Officers who shall be competent for the purpose of authorizing the discharge of an other rank officer for the reasons set out in the first column to Part II of the second schedule, in pursuance of section 23 (3) and section 20 of the Act. 28. The first column of Part II sets out the reasons for discharge, which includes at item 3 Service No Longer Required and provides that the said ground has to be considered by the Chief of Defence Staff, Part II also outlines as grounds for discharge, misrepresentations and allied offences or having been improperly enlisted. 29. There is no definition in the Act or in the regulations as to what offences or circumstances qualify or entitle the Chief of the Defence Staff to discharge on the ground of Service No Longer Required. In this case, the Claimant is a service lad and Section 2 of the Act defines service law as including the Army Act 1955 of the United Kingdom. As a result regard can be had to the Queens Regulations which is subsidiary Legislation to the Army Act 1955 in the United Kingdom. 30. In this case, the Claimant s failure to reveal the fact of his convictions is inexcusable. The Court must however determine whether the Claimant was treated with fairly. In the instant case there was no formal disciplinary proceedings, but fairness has to be contextual and fact dependant. The central question to be determined is whether the process adopted was a course of action that served the ends of justice and fair play. The Court accepted Commanding Officer Pritchard s evidence that he met with the Claimant and the Claimant was aware that the non disclosure of his criminal convictions was the issue that was being considered and the Claimant as stated earlier, has never disputed the fact that he has previous convictions. 31. In the circumstances of this case, the Court is of the view that the Claimant should never have been enlisted, and once the fact of his previous convictions was Page 14 of 16

15 established by the obtaining of the relevant court extracts, it was open to the Chief of the Defence Force to discharge the Claimant on the ground that his service was no longer required. Before sending the request to the Chief of the Defence Staff, Pritchard met the Claimant and there is no evidence that the Claimant ever denied the fact of the said convictions. It may also have been possible for the Commanding Officer to have discharged the Claimant on the ground of having been improperly enlisted or for misrepresentation. If the Claimant was allowed to remain in service, such a circumstance would erode the public s confidence in the Defence Force, as persons who may have been aware of the Claimant s convictions would understandably lose confidence in the said institution. Given the current state of crime and the recent joint patrols between the Police and members of the Defence Force, public confidence in the said institutions is of vital importance and it can never be in the public interest to have persons who have criminal convictions enlisted. 32. The Claimant is very fortunate that criminal charges were not instituted against him before a court martial and that the commanding officer elected instead to have the Chief of the Defence Staff discharge the Claimant on the ground that his Service is No Longer Required. Having considered all the facts of this case and the relevant law, the Court holds that the adopted course of action did not infringe the Claimant s rights under section (4a) or (4e) of the Constituition. Nor does the Court find that the Claimant s discharge was in breach of the rules of Natural Justice. The Claimant was dishonest when the relevant forms were filled out and such conduct simply cannot be condoned. 33. In Russell Joseph v Chief of Defence Staff and the Attorney General, HCA No of 1997, Smith J (as he then was) held that there can be no property right of a member of the Defence Force that can be infringed and the member has no contractual right to sue for wages, as his employment is at the State s grace. Page 15 of 16

16 34. There is also no evidence before this Court that enables it to hold that the Claimant s rights under section 4 (b), Equality before the law, has been infringed. The Claimant led no evidence that he was in a similar position to persons of comparable circumstances, that he was treated differently from these persons or that his discharge was actuated by malice. 35. There is also no evidence before this Court to enable it to conclude that the Claimant was deprived of any remedy given to him by law or that his rights and freedoms guaranteed under section 5 (2) (e ) or 5 (2) h of the Constituition have been infringed. 36. Accordingly the Claimant s claims are hereby dismissed and the Claimant is to pay the Defendant costs to be assessed by this Court in default of agreement... FRANK SEEPERSAD JUDGE Page 16 of 16