THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No. CV 2009-01926 BETWEEN JOSEPH BERNARD-BANFIELD AND Claimant SARGEANT SOOKRAM REG NO. 9200 First Defendant THE COMMISSIONER OF POLICE THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Second Defendant Third Defendant Before the Honourable Justice Frank Seepersad Appearances: 1. Mr. Garnet Mungalsingh instructed by Mr. Ravi Mungalsingh for the Claimant. 2. Mr. Lee Merry instructed by Ms. Kamala Mohammed-Carter for the Defendants. Delivered 15 th July, 2013 Page 1 of 13
DECISION 1. For determination before the Court is the Defendant s Application filed 15 th January, 2013 for an Order pursuant to Part 26.3(b) of the Civil Proceedings Rules 1998 that the Statement of Case filed herein be struck out against the Defendants for the reason that it is an abuse of process of the Court. The Claimant s Claim 2. By Claim Form and Statement of Case filed the Claimant commenced the instant action. 3. The summary of the relevant undisputed facts before the court is as follows: i. The Claimant was committed to stand trial on August 9 th 2000 by His Worship Mr. Wellington at the Princess Town Magistrates Court. The Claimant was subsequently indicted by the Director of Public Prosecutions and in June, 2002 the Claimant s trial commenced before the Honourable Mr. Justice Volney at the San Fernando First Assizes. ii. On June 27 th 2002 the learned trial judge commenced the hearing of a voir dire to determine the admissibility of the oral admission, written confession and the Claimant s subsequent conduct at the locus in quo. iii. Having heard evidence from the Claimant and the police investigators, the Judge decided that the oral and written statements were voluntarily given. iv. With respect to the locus in quo, however, the judge determined that the Claimant ought to have been given the Rule III caution prior to being taken to the locus instead of the Rule II caution; consequently he ruled that the evidence of subsequent conduct of the Claimant was inadmissible. The trial judge delivered written reasons for his ruling on July 10 th 2002. Page 2 of 13
v. The oral admission and written statements were put before the jury along with other circumstantial evidence and the jury delivered a not guilty verdict on July 19 th 2002. 4. The Claimant commenced the instant proceedings for wrongful arrest, false imprisonment, assault and battery and malicious prosecution on the 2 nd April, 2004. The Claimant contends that neither the written or oral confessions were made voluntarily and that they were obtained in circumstances that were oppressive. The Law 5. The Court has a duty to prevent a misuse of its procedure which would cause unfairness to the parties and/or bring the administration of justice into disrepute. The doctrine of abuse of process has been invoked by the courts to prevent such a misuse when it arises in the form of an attempt to re-litigate issues. A statement of the general principles on re-litigation can be found in Halsbury's Laws of England, 5th Edition (2009), Volume 12, para 1166: "The law discourages re-litigation of issues except by means of an appeal. It is not in the interests of justice that there should be a re-trial of a case which has already been decided by another court, leading to the possibility of conflicting judicial decisions, or that there should be collateral challenges to judicial decisions; there is a danger, not only of unfairness to the parties concerned, but also of bringing the administration of justice into disrepute." 6. The matter of the re-litigation of issues was considered by the House of Lords in Hunter v. Chief Constable of West Midlands Police [1982] A.C. 529. The case involved the infamous "Birmingham 6" bombers who had been accused of killing 21 people and injuring 161 others in bomb explosions in 2 pubs in Birmingham, England. When they were arrested the accused men allegedly made written and oral confessions but they subsequently contended that those confessions had been induced by violence and threats by the police. During the criminal trial Page 3 of 13
the trial judge conducted a voir dire to determine the admissibility of the confessions and ruled that they were voluntarily given. The men were subsequently convicted. They then sought to bring civil proceedings alleging assault and battery on the part of the police investigators. Lord Diplock set out the governing rule on the subject at hand at p. 541: "The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court in which it was made." 7. The court in Hunter had to deal with a number of issues, including the question of whether such subsequent proceedings ought to be allowed to proceed where the claimant sought to rely on evidence that was not available in the previous proceedings. Lord Diplock stated that such fresh evidence had to pass the rigorous test of being evidence that "entirely changes that aspect of the case" (p. 545). 8. In Hunter the availability of new medico-forensic evidence on photographs of the accused men which showed that they had signs of injury prior to the giving of the statements, as well as statements from three prison officers stating that the men bore signs of injury upon being brought to the prison, were held not to have satisfied the said test. 9. The Court also considered the difference in the standard of proof required in criminal and civil cases. Lord Diplock opined at p. 543: "...a decision on a particular question against a defendant in a criminal case, such as Bridge J s ruling on the voir dire in the murder trial, is reached upon a higher criminal standard of proof beyond all reasonable doubt and is wholly inconsistent with any possibility that the decision would not have been against him if the same question had fallen to be decided in civil proceedings instead of criminal." Page 4 of 13
10. The public policy reasons for the rule in Hunter were considered in detail in the Court of Appeal decision of Smith v. Linskills [1996] 2 All ER 353. The court held at p. 361: "The main considerations of public policy which underlie the existing rule are, as we understand, threefold. (1) The affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction... (2) The virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion... (3) The importance of finality in litigation... " 11. The matter of re-litigation was also considered in the decision of the Canadian Supreme Court in Canadian Union of Public Employees v. City of Toronto, [2003]3 R.C.S. 77. In delivering the judgment of the court, Arbour J discussed the reasons for employing the doctrine of abuse of process to curtail re-litigation rather than the res judicata or issue estoppel principles at para 51 and said: "Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the re-litigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. Page 5 of 13
In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system's point of view, re-litigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where re-litigation will enhance, rather than impeach, the integrity of the judicial system, for example : (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context... The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against litigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the Administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision. " 12. The settled position is that courts should consider abuse of process applications on a case by case basis, with each decision turning on its own facts. As was stated by the Sir Thomas Bingham in Smith v. Linskills, "It was not, as we understand, the intention of the House in Hunter to lay down an inflexible rule to be applied willy-nilly to all cases which might arguably be said to fall within it. Lord Diplock was at pains to emphasize the need for flexibility and the exercise of judgment." Lord Diplock made it clear that the court is not exercising a "discretion" when dealing with these applications, but rather performing a "duty". Page 6 of 13
13. With respect to the burden of proof in Smith v. Linskills, Sir Thomas Bingham cited with approval the judgment of Goff LJ who presided over Hunter in the Court of Appeal: "It is none the less noteworthy that in McIlkenny v Chief Constable of West Midlands Police Force [1980] 2 All ER 227 at 247, [1980] QB 283 at 33 3 Goff LL whose judgment was unreservedly approved by the House of Lords, expressed the opinion that relitigation of an issue which had previously been the subject of final decision 'must prima facie be an abuse of the privilege of the court to allow the matter to be litigated all over again'. In the present case Mr Nicol has, rightly in our judgment, devoted his argument to seeking to show that certain ingredients of Lord Diplock's rule are not present here." Justice Volney s Ruling 14. Justice Volney provided full and detailed reasons for his ruling on the voir dire. In the course of his reasons the learned judge dealt with all the issues of fact and law that has now been raised by the Claimant in his Statement of Case. In fact, an examination of the Statement of Case reveals that it was fashioned very closely upon the record of the Claimant's evidence at the voir dire (These proceedings formed part of the claimant s supplemental list of documents filed on February 22 nd, 2010). 15. At the criminal trial and upon hearing the voir dire the trial judge made several conclusions which impact directly on the Claimant s claim that is now before this Court. With respect to the Claimant s claim for wrongful arrest, Justice Volney dealt with this issue in the first and second paragraphs of page 2 of his ruling. On the issue of the Claimant s detention the judge at the second paragraph concluded that, "there can be little doubt that Banfield provided the police with reasonable justification for continuing to hold him." 16. The learned judge also considered the reasons that were advanced so as to demonstrate that the oral and written statements ought to have been viewed as being inadmissible. It was Page 7 of 13
submitted, that the interview during which the incriminating oral statement was allegedly made by the accused/claimant was unauthorized and that the information was obtained at a time when the accused ought to have been released. The judge considered whether the oral statement was proferrered as a result of oppression and/or breaches of the judge s rules. The judge concluded at paragraph 2 on page 7: the conditions of the detention, as I find them to have been, did not lend themselves to the suggestion of oppression. Whatever the claim to presumptive unfairness might have arisen due to the length of the detention has clearly been negated by evidence of acceptable conduct by the police in whose custody the accused was kept during the period of his detention. 17. In relation to the written statement, Volney J said at paragraph 3 of page 7: there can also be no room for doubt that on the evidence that Banfield agreed to give a written statement to the police The submission that all the circumstances in which this confession was obtained demonstrated that oppressive questioning was used is wholly unsustainable. 18. The Court also found that any suggestion that the circumstances were oppressive was wholly unfounded and was rejected. The Judge went on in the first paragraph at page 8 to say: I do not find on the facts that its effect can serve to compromise the otherwise fair treatment accorded the accused in the course of the detention. I can find no merit in any of the other matters argued by the Defence that were urged as creating more than a reasonable doubt as to the fairness of the circumstances in which the impugned admissions were allegedly made. 19. Justice Volney further stated at the second paragraph of page 8 that, "On receipt of the written statement, the police had evidence to charge the accused. The State at the trial, in addition to Page 8 of 13
the confessions relied on evidence which was gathered after the taking of the statement namely the actions of the Claimant when taken to the locus in quo. This additional evidence was, however, ruled to be inadmissible because of a failure of the police to give the correct caution. The information/evidence was, however, available to the arresting officer prior to the decision taken to arrest the Claimant and is therefore relevant to the determination as to whether there was reasonable and probable cause to charge the Claimant. 20. Justice Volney from paragraph 2 on page 3 to paragraph 3 of page 4 said as follows: it was equally clear the Banfield had known at the start of his detention that he was being held as a suspect in connection with enquiries into the suspected homicidal death of Ashe Robley. As such, his detention was a licenced one. 21. The Court ultimately held that the confessions were admissible and in doing so rejected the Claimant s assertions that he was a victim of assault and battery. While the judge did not expressly deal with the issue of the alleged assault upon the Claimant, he found no merit in any of the other matters raised by the Defence. Consequently the judge rejected the reasons and circumstances advanced by the Claimant and found that the statements were voluntary. Application of the Law 22. Unlike the outcome in the Hunter case, this Claimant was acquitted at his trial. The Court in Hunter, however, made it clear that the relevant previous decision by a competent court was the decision of the trial judge on the voir dire and not the decision of the jury. Lord Diplock stated at p. 542: "In the instant case the relevant final decision by a competent court in which the identical question sought to be raised has been already decided is the ruling of Bridge J, on the voir dire in the murder trial, that Hunter' s confession was admissible. Page 9 of 13
Initially his ruling may have been provisional in the limited sense that up to the time that the jury brought in their verdict he had power to reconsider it in the light of any further evidence that might emerge when the whole question of the circumstances in which the confession was obtained was gone into again before the jury on the question of the weight to be attached to it: see R v Watson [198012 All ER 293, [1980] 1 WLR 991. But his ruling became final when the trial ended with the return of the jury's verdict of guilty and the pronouncement by the judge of the mandatory sentence of life imprisonment. Bridge J thereupon became functus officio. His ruling that the confession was not obtained by the use of violence by the police, as Hunter had alleged, could thereafter only be upset on appeal to the Court of Appeal. The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge's direction to them must clearly also have been satisfied beyond reasonable doubt that Hunter's account of the assaults on him by the police was a fabrication does not affect the finality of the judge s ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil action, were to be permitted to set up in that action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as, the final decision against him by a competent court on the very question that he seeks now to raise. 23. In Mitchell v. Chief Constable of the Royal Ulster Constabulary (1992) NI 35 the appellant had been convicted of robbery in a criminal trial which was heard before a judge without a jury. During the trial the judge held a voir dire to determine the admissibility of a confession. He determined that the said confession was admissible and that allegations made by the appellant of being assaulted by the police were untrue. On appeal, the Court of Appeal overturned the conviction, although without making any pronouncement on the correctness of the judge s decision on the confession. The appellant then instituted civil proceedings for Page 10 of 13
damages for assault and battery and the court held that those proceedings were an abuse of process, since the Court of Appeal did not reverse the decision of the trial judge on the voir dire, so that the judge s decision on the issue namely the assault stood. 24. In Byrant v. Collector of Customs, (1984) 1 NZLR 280 statements made by the appellant were ruled inadmissible by the trial judge in the first criminal trial and the appellant was subsequently acquitted. The prosecution then brought different charges against the appellant and sought to rely on the said confession statements in a second trial before a different judge. The New Zealand Court of Appeal found that it was an abuse of process to attempt to go behind the decision of the trial judge in the first trial. Having cited Hunter at some length Richardson J then stated (p.284): The attempt to introduce the oral and written statements to the police in evidence in the second trial was a challenge to a final decision of another court of competent jurisdiction Judge Callendar s ruling at the first trial that the tendered statements were not voluntary and were accordingly inadmissible was immediately binding on the Crown and became final when the verdict (of not guilty) of the jury was entered. 25. There was never any appeal of Justice Volney s ruling on the voir dire. The Court must always jealously guard the integrity of the judicial process and this court is firmly of the view that it will amount to an abuse of the Court s process, if the Claimant is permitted to proceed with his claim. 26. The criminal justice system was fully engaged in relation to the charges preferred against the Claimant, a magistrate found there was a prima facie case against him, the Director of Public Prosecutions indicted him, the trial judge conducted a voir dire and determined that the oral admission and confession statements attributed to the Claimant were voluntary and allowed same to be put before a jury. The learned judge had to be satisfied on the requisite standard of proof that the statements oral and written were in fact voluntary and in arriving at his decision, Page 11 of 13
the Court rejected the Claimant s contention that he was battered and assaulted to give the said statements or that he was subjected to oppressive conduct by the police. 27. In addition, the state also relied on circumstantial evidence which was placed before the jury. In his ruling Volney J determined that Banfield s detention prior to being charged was lawful and that the police had evidence (which included the statements which the Court found to have been given voluntarily) to charge the accused. 28. If this court were to conduct a trial in the instant case and the court were to ultimately accept the Claimant s version of events, such a finding would be entirely inconsistent with the ruling and findings of the criminal trial judge upon the determination of the voir dire, this would result in an affront to the system of justice. 29. The Court cannot lose sight of the fact that the standard of proof required in these proceedings is lower than the standard of proof that operated in the voir dire in which the standard of proof is beyond reasonable doubt and the onus is on the prosecution to negate suggestions of oppression and to disprove assertions that the impugned statements were derived as a result of unfair police conduct. At the conclusion of the voir dire the Judge did find that the prosecution had successfully negated the allegations which included inter alia, suggestions of oppression. 30. This Court charged with the responsibility of jealously guarding and protecting its processes, must always ensure that its limited resources are properly and fairly allocated. The expense and employment of judicial time that would be undertaken if the court were to embark upon a trial in the instant case cannot be justified, the credibility of the entire judicial process could be significantly undermined and it will amount to an abuse of the Court s process. Page 12 of 13
31. In the circumstances the Claimant s statement of case is hereby struck out and the parties shall be heard on the issue of costs... FRANK SEEPERSAD JUDGE Page 13 of 13