THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE No. CV2007-02297 BETWEEN NIGEL MAYERS CLAIMANT AND THE ATTORNEY GENERAL OF TRINIDAD & TOBAGO DEFENDANT JUDGMENT BEFORE THE HONOURABLE MADAME JUSTICE TIWARY-REDDY APPEARANCES: Wayne Sturge instructed by Lemuel Murphy for the Claimant Israel Khan SC leading Keith Scotland instructed by Nairob Smart for the Defendant I. INTRODUCTION 1. The Claimant who is also called Du Four seeks damages for assault and battery consequent upon being shot by members of the Police Force on 10.10.04. The Claimant contends that the Defendant is vicariously liable for his injuries by virtue of section 19 of the State Liability and Proceedings Act Chap. 8:02. The Defendant maintains that the police officers acted in self-defence in the face of imminent danger as the Claimant, who was, at the material time, a notorious Page 1 of 14
criminal and wanted by the police for, inter alia, murder, openly fired on the said police officers, in blatant disregard of the authority of the police. 2. The Claimant was his only witness while Acting Inspector Hubert Sharpe (Sharpe), Acting Inspector Garfield Stewart (Stewart) and Senior Superintendent Franklyn Edwards (Edwards) testified for the Defendant. Both sides agreed that this Court determine only liability at this stage. II. CLAIMANT S CASE 3. In his Witness Statement, the Claimant said that at about 7:30 a.m. on 10.10.04 he and his friend Dexter Burnett (Dexter) were at the home of his child s mother, Ruth Hamlet at Mount Marie in Tobago when he heard footsteps outside the house. The Claimant looked outside and saw numerous police officers, as well as soldiers. Dexter and the Claimant ran and hid in nearby bushes. After several minutes they surrendered to the said police officers, who ordered both men to put their hands behind their heads and to lie flat on the ground. Both men complied. The Claimant was then shot in his left leg by one of the officers whose identity remains unknown to him. Another police officer searched the Claimant and took away some cash, a cellular phone, and a New Testament book from his trouser pocket. The Claimant was then shot on the left and right sides of his chest. Thereafter, police officers lifted him up and placed him to lean against a tree and shot him on his side. The Claimant then fell unconscious and recovered in the Scarborough General Hospital. 4. The Claimant insisted that at the time of the incident he was unarmed and there was no lawful justification for the police to have shot him. The Claimant suffered: a. Multiple gunshot wounds to the anterior chest wall and left thigh; b. Development of bilateral pneumothorax of the sixth rib; and c. A lacerated wound to the right side of the thigh. Page 2 of 14
The Claimant was transferred to the Eric Williams Medical Sciences Complex where he was warded from 18.10.04 to 22.11.04. 5. In cross-examination the Claimant admitted that on the day he was shot, he was aware that he was wanted by the police. He insisted that while he was warded at the Scarborough Hospital, two police officers tried to turn off his oxygen and he resisted. As a result the Claimant was transferred to the Mount Hope Hospital. However the Claimant was unable to identify these police officers or the nurse or doctor to whom he allegedly reported the incident. In re-examination the Claimant stated: I knew I was wanted by the police. I was wanted for a matter in the Magistrate s Court for murder. I won it and while being out there I was re-indicted. At that point I was wanted for a knife murder. I won the murder case in the High Court III. THE DEFENDANT S CASE 6. The Defendant denied the Claimant s account. Sharpe, who was then attached to the Tobago Division in charge of CID, received information of an armed robbery allegedly committed by two men of African descent at Ella s Restaurant and Bar (Ella s) in Scarborough on 9.10.04. One Police Cpl. Kerr, who responded to this report, had been shot and wounded by the suspects. Based on this information, next morning Sharpe and a party of police officers went to a house at Mount Marie, Tobago where they saw two men fitting the description of the suspects in the armed robbery. The two men were the Claimant and Dexter. They were in the company of a third man. The police officers shouted Police! and ordered the men to remain where they were. In response the Claimant pointed a revolver and fired at the police officers who took cover in the bushes. All three men then turned and ran into the surrounding bushes. Page 3 of 14
7. The police officers pursued the men and came upon the Claimant and Dexter in some bushes. Sharpe called out to these two men, who once again opened fire on the group of police officers who took cover. Stewart returned fire resulting in injuries to the Claimant and the death of Dexter. The Defendant contended that the police officers acted in self-defence, using no more force than was reasonably necessary in the circumstances. 8. In cross-examination Sharpe admitted that the Claimant was never charged with any offence arising out of this incident. Further he, Sharpe was instrumental in having the station diary written up. Sharpe also admitted that at one time he was himself charged with murder and was detained at the Golden Grove prison. 9. Stewart s witness statement corroborated Sharpe s account of the circumstances in which the Claimant was shot. At paragraphs 11 and 12 of his witness statement Stewart said: 11. The Claimant and Dexter Burnett then looked in my direction and at the same time, they both pointed fire-arms at us and fired. I heard an explosion and saw the muzzle flash of their guns. They each held a firearm in their hands 12. Being fearful that my life and that of my colleagues were in imminent danger, I pointed my service Galil and fired a short burst at the Claimant and Dexter Burnett. I heard several explosions at this time and then there was silence. The Claimant and Dexter Burnett both fell to the ground Stewart was cross-examined at length on his statement that he heard an explosion and no more. However he maintained that: Page 4 of 14
Not correct that I heard one explosion. With a revolver, with each pull of the trigger I would hear a separate explosion After my evasive measures I did not hear any explosion. I did hear further explosions. And Stewart accepted that he had not said in his Witness Statement that he had heard any further explosions. 10. Edwards said that in October 2007 he had been detailed to investigate the incident of 10.10.04 in which both the Claimant and Dexter had been shot. Edwards could not recall who instructed him to investigate or whether this was after the instant action had been filed. It is to be noted that this action was filed on 3.7.07. On 6.12.07 Edwards retrieved the two firearms and ammunition from the Property Keeper at the Scarborough station and submitted them to the Forensic Science Centre for analysis. He received the Certificate of Analysis dated 30.1.08 on 10.3.08. The said Certificate stated that the firearm allegedly found near the Claimant had fired some of the cartridges found at the scene while no conclusion was made as to whether any cartridge cases found at the scene had been fired from the firearm allegedly found near Dexter. 11. Edwards could not recall whether, during the course of his investigations, he had seen the Station Diary Extract of this incident, which was a contemporaneous record of the incident. It is trite law that there must be an inquest into every unnatural death. Dexter died on 10.10.04 and in cross-examination in May, 2010 (almost 6 years later) Edwards confirmed that no inquest had been ordered into Dexter s death. And this was a case of the shooting death of a civilian by the police. Further, he had received no forensic report showing propellant powder on the Claimant or Dexter. It is also significant that up to the trial in May, 2010 Edwards had not concluded his investigation or prepared a report into the shooting incident of 10.10.04. Page 5 of 14
MEDICAL REPORT 12. The Claimant sought to rely on a medical report (Report) dated 3.8.05 of Dr. Penco, a cardio-thoracic surgeon at the Chest Clinic of the Eric Williams Medical Sciences Complex (the Complex). The Defendant objected to the use of the said Report as it was not issued on the official letterhead of the Complex, that another person whose name is indiscernible signed the report on behalf of Dr. Penco, and that vital information such as the patient s date of birth, details as to dates, diagnoses, and types of surgeries performed were missing from the body of the Report. Further, the official stamp of the Complex usually affixed at the right side of the doctor s signature was missing. The Defendant first challenged the authenticity of the said Report in paragraph 16 of the Defence filed on 7.12.07. 13. The Defendant submitted that the Report breached Part 8.10 of the Civil Proceedings Rules 1998 as amended (CPR) which states that if a Claimant will be relying on the evidence of a medical practitioner the Claimant must attach to the Claim Form a report from the medical practitioner on the personal injuries which he alleged in his Claim. This Court has noted that the said Report, however brief, confirmed the evidence of both the Claimant and the Defendant s witnesses, that is, that the Claimant was shot several times about his body. Further the Defendant s witnesses confirmed that the police had shot the Claimant. According to the Report, the Claimant had history of multiple gun shots to anterior chest wall and left thigh. The Claimant s claim for damages for assault and battery is grounded in the allegation that he was shot about his body by police officers. And this allegation has not been denied by the witnesses for the Defendant. 14. The 41 st Edition of Black s Medical Dictionary defines pneumothorax as: A collection of air in the pleural cavity, into which it has gained entrance by a defect in the lung or a wound in the chest wall And the Claimant had testified that he was shot on both sides of his chest. Page 6 of 14
Further the Second Edition of Butterworths Medical Dictionary defines thoracotomy as: The operation of incising the wall of the thorax. In all the circumstances this Court over-rules the objection to the report. ISSUES 15. 1. Whether the police shot the Claimant. 2. Whether the police were acting in self-defence. 3. Whether the defence of ex turpi causa non oritur actio is open to the Defendant. 4. Whether the Defendant is vicariously liable for the action of the police. STATION DIARY EXTRACT (THE EXTRACT) 16. The extract of the station diary of 10.10.04 was one of the documents listed in the Agreed Trial Bundle. The evidence contained in the Extract was that on 10.10.04 a party of armed police officers went to a house off a trace at Mount Marie Road, in Tobago upon information received relative to the Claimant for whom there was a warrant for his arrest on a charge of murder and to Dexter Burnett who was wanted in connection with a robbery at Ella s. As the officers approached the house they saw both men together with another man, standing in the yard. The police officers ordered the men to surrender. The Claimant pointed a gun in the direction of the police and fired a shot. The three men then ran through the nearby bushes. The area was cordoned off and whilst the officers were walking through a track they saw the Claimant and Dexter each with a gun in his hands. The officers ordered them to surrender by lying on the ground. In return they pointed their guns at the police officers and several explosions were heard. The officers took cover and returned fire. The Claimant and Dexter fell to the ground. Page 7 of 14
17. In his witness statement dated on 19.8.08 Sharpe said that on 10.10.04 he saw three men, two of whom fitted the description of the suspects in the robbery and shooting at Ella s. He later discovered the two men were the Claimant and Dexter. In cross-examination Sharpe said: I said so in my witness statement that the Claimant ran. I now see my witness statement. It is not in my statement. I never said in my witness statement that the Claimant shot at us and tried to escape. That would be important as to whether it is self defence or not. I cannot recall if I put that in the station diary. That could be a typo error. The station diary is not a typed document. I could have told them to put it, but it could have been left out. 18. This Court noted and Sharpe agreed that the Extract had been prepared shortly after the event had occurred and was then fresh in his mind. Further, the Extract was prepared from information provided by Sharpe himself. When confronted with the discrepancy between the contents of the Extract and his own evidence in the witness box, Sharpe replied that all the shooting occurred simultaneously. Sharpe also tried to explain away the discrepancy by stating that he may have given the information to his attorney-at-law, implying that his Attorney did not see it fit to use the information, and that there may have been a typographical error in the Extract. Having reviewed the evidence and having seen and heard the witness, Sharpe in the witness box, this Court formed the opinion that the Claimant s account is to be preferred to that of the Defendant. DID THE CLAIMANT SHOOT AT THE POLICE? 19. The Defendant s witnesses testified that, while trying to avoid being arrested the Claimant and Dexter opened fire on the police officers. The Certificate revealed Page 8 of 14
that two guns had been submitted for analysis. One was a Smith & Wesson model 66-3,.357 magnum calibre revolver and the other an RG Industries model RG 14,.22LR calibre revolver. The Smith & Wesson revolver was allegedly found next to the Claimant while the RG Industries revolver was found next to Dexter. 20. In summary, the Certificate stated that the Smith and Wesson had fired some of the cartridges, the cases of which had been found at the scene, while no conclusion could be made as to whether any cartridges of the cases found at the scene, had been fired by the RG Industries revolver. Sharpe was adamant that both the Claimant and Dexter had fired at the police. The contents of the Certificate conflict with the evidence of the police officers who insisted that the Certificate clearly stated that the Smith and Wesson which was allegedly found on the Claimant had indeed been fired. Whether the Claimant had this weapon in his possession and used it to fire on the police officers on 10.10.04 is another issue. WAS THE CLAIMANT IN POSSESSION OF THE SMITH & WESSON REVOLVER ON 10.10.04. 21. Edwards said in 2007 that he had been detailed to investigate the shooting death of Dexter and the shooting of the Claimant on 10.10.04. Edwards had been detailed to investigate, some three years later and only after the Claimant had initiated these proceedings. At the trial Edwards testified that the investigations were still ongoing. Edwards gave the same response when asked whether he had prepared a document to send to the Office of the Director of Public Prosecutions to facilitate an inquest being conducted into the shooting death of Dexter. He gave the same answer when questioned as to why no charges had been laid against the Claimant with respect to the robbery at Ella s and to the Claimant s resisting arrest and shooting at the police on 10.10.04. Page 9 of 14
22. Edwards testified that he received the guns and ammunition allegedly found on the Claimant and Dexter from the Property Keeper, who did not testify. However, no Property Register was produced by the Defendant to assist the Court in confirming the history of the guns and ammunition. This then begs the question: how can we be certain that the weapons submitted for analysis were those retrieved from the Claimant and Dexter? This Court also noted the absence of any evidence as to whether the Claimant and Dexter had been swabbed for prints or gunpowder residue or of any relevant forensic report. This would have greatly assisted the Defendant s case as it would have been conclusive proof that the Claimant and/or Dexter had been in possession of the respective firearms and also that they had fired the said weapons at the police. 23. Edwards testified further that he was experienced in dealing with firearms and that when one fires a firearm, gun powder residue will be deposited on the hand and clothing of the person discharging the firearm. He also accepted that the purpose of swabbing the hands of a person suspected of discharging a firearm was to determine whether the weapon was actually fired by him. Edwards agreed that it was routine practice for the hands and clothing of shooters to be swabbed and their prints taken. However, he could not explain why this standard procedure was not followed in the instant case. Neither did any of the Defendant s other witnesses give an explanation. In all the circumstances, this Court prefers the Claimant s evidence to that of the Defendant s witnesses and finds on a balance of probabilities, that the Claimant s evidence was more credible than that of the witnesses for the Defendant. TIME OF THE SHOOTING 24. In his Statement of Case filed on 3.7.07 the Claimant pleaded that he was at the house at Mt. Marie at about 7:30 p.m. on 10.10.04 when the police arrived. In its Defence filed on 7.12.07 the Defendant pleaded that the police arrived at Mt. Page 10 of 14
Marie at about 10:30 a.m. on 10.10.04. In his witness statement filed on 11.12.08 the Claimant said that he was at the said house at Mt. Marie at 7:30 a.m. on 10.10.04 when the police arrived. Both Sharpe and Stewart stated in their witness statements that the police arrived at the said house at 10:30 a.m. on 10.10.04. Senior Counsel for the Defendant made heavy weather of this time-line and submitted that the Claimant be bound by the time-line of 7:30 p.m. in his Statement of Case since there had been no amendment. In his opening address the Claimant s attorney said that the shooting took place in the morning of 10.10.04. 25. This Court noted that the robbery at Ella s had taken place on 9.10.04 after which police officers from the Tobago Division as well as from the Guard and Emergency Branch and from the Inter-Agency Task Force based in Trinidad met in Tobago where they were briefed by ACP Allard and Sharpe, before travelling to Mt. Marie. This Court also noted that the Extract had been entered in the station diary at 12:15 p.m. and after the police party had returned from Mt. Marie. In all the circumstances this Court finds that it is unlikely that the police party had arrived at Mt. Marie at 10:30 a.m. and the pursuit and actual shooting and return to the station had all taken place in less than two hours. This Court therefore holds that the police arrived at Mt. Marie in the early morning of 10.10.04 and that the Claimant s time-line of 7:30 a.m. is to be preferred. ANALYSIS 26. The Defendant s three witnesses were all police officers, each with approximately 30 years experience in the police force. Sharpe had shot and killed a civilian some years ago and was himself tried for murder. He ran a defence of self-defence successfully at his trial. The party of policemen consisted of some 25 officers. Approximately ten of them wore bullet proof vests and were armed with Galil machine guns and one Uzi machine gun, while the Claimant and Dexter were Page 11 of 14
allegedly carrying a revolver each on 10.10.04. The Certificate could not confirm that one of the two revolvers allegedly held by Dexter had even been fired. 27. Dexter, a civilian had been shot and killed by the police on 10.10.04 while another civilian, the Claimant herein had also been shot and seriously wounded by the police. The Claimant commenced this action on 3.7.07, up to which date no formal investigation had been carried out into the shooting of two civilians and the only official record of this incident was the Extract. Further, although Sharpe and Stewart insisted that the Claimant had shot at the police and that a revolver and ammunition had been found in his pocket, no charges were ever preferred against the Claimant for the offence of shooting at the police or being in possession of a firearm and ammunition. And no explanation for this failure has been forthcoming. CONCLUSION 28. There is no dispute that the police shot and wounded the Claimant on 10.10.04. Whether the police were acting in necessary self-defence is a question of fact. In order to establish self-defence the Defendant must show that the action taken and the force used were reasonable in all the circumstances of the case. 29. Section 4(1) of the Criminal Law Act, Chap. 10:04 provides: a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or of persons unlawfully at large. 30. Having seen and heard the witnesses and after reviewing the evidence, particularly that of Stewart, this Court concludes that when Stewart fired on the Claimant and Dexter, Stewart and his colleagues were not being fired upon by the Claimant or Page 12 of 14
Dexter. In any event the police officers were better armed with machine guns and equipped with bullet proof vests and had considerably more lethal and faster firepower than the Claimant and Dexter. Further this Court notes and prefers Stewart s account that he heard an explosion before he took careful aim and then fired at the Claimant and Dexter. In the result the action taken by the police and the force used were not reasonable in the circumstances. Accordingly the police are liable for the Claimant s injuries. 31. Further, this Court finds that neither the Claimant nor Dexter was armed or shot at the police on 10.10.04. In this regard the Defendant cannot maintain a defence of ex turpi causa non oritur action. 32. I move next to consider whether the Defendant is liable for the acts of the police officers. In the case of the Bernard v The Attorney General of Jamaica [2004] U.KPC 47 (Bernard) the Privy Council stated at paragraph 21: Vicarious liability is a principle of strict liability. It is a liability for a tort committed by an employee not based on any fault of the employer. There may, of course, be cases of vicarious liability where employers were at fault. But it is not a requirement. This consideration underlines the need to keep the doctrine within clear limits. And at paragraph 15 of Bernard (above), the Board, per Lord Steyn, adopted the following approach as set out in Lister v Hesley Hall Limited 2002 1 AC 215: The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. Page 13 of 14
33. In the instant case the police officers were acting in the course of their duties. Here the police party were engaged in apprehending the Claimant for whom they were aware there was a warrant for his arrest on a charge of murder and Dexter, who was a suspect in a recent robbery and shooting. It cannot be disputed that there was a close connection between the nature of their employment and the tort of trespass to the person. This Court therefore holds that the Defendant is vicariously liable for the assault and battery committed by the police on the Claimant. DECISION 34. a. There will be judgment for the Claimant on his claim with damages to be assessed by the Master in Chambers on a date to be fixed by the Registrar. b. The Defendant do pay to the Claimant, the costs of this action to be assessed in default of agreement. NOTE 35. Having regard to this Court s comments on the conduct of the police, I hereby direct that a copy of this judgment be sent to the Director of Public Administration for transmission to the Police Service Commission for its consideration and for such action as it may deem appropriate. Dated this 25 th day of February, 2011 Amrika Tiwary-Reddy Judge Page 14 of 14