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Trinidad and Tobago Court of Appeal |
] [Hide Context] REPUBLIC OF TRINIDAD & TOBAGO
IN THE COURT OF APPEAL
CvA. No. 84 of 2004
Between
DAMIAN BELFONTE Appellant
And
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Respondent
Panel :
S. Sharma, C.J.
M. Warner, J.A.
I. Archie, J.A.
Appearances :
Dr. F. Ramsahoye S.C. and Mr. A Ramlogan for the Appellant
Mr. T Thorne and Ms. Seenath for the Respondent
Date of delivery:
Friday 3 rd June 2005
JUDGMENT
Judgment of the Court Delivered by S. Sharma C.J.
INTRODUCTION:
(1) This appeal is against the decision of a trial judge made on 11 th June 2004 which held firstly that, in the circumstances of this case, Damian Belfonte (the Appellant) had no constitutional right to be informed of his right to retain and instruct counsel and secondly that there was an abuse of process due to the Appellant’s failure to pursue a civil action for the torts of unlawful arrest, false imprisonment and trespass to the person.
(2) The main issues for determination on this appeal are whether the Appellant had a right to be informed of his right to Counsel upon arrest for non-payment of fines and whether the Appellant should be denied relief in bringing an originating motion against the State (the Respondent) pursuant to section 14 of the Constitution (for breach of fundamental human rights) by virtue of there being a parallel remedy in private law.
(3) The Appellant filed a constitutional motion against the Respondent on 21 st June 1999 seeking relief for breaches of his fundamental rights while incarcerated during the period 3 rd November 1998 to 25 th November 1998.
(4) The Appellant was arrested on 3 rd November 1998 for the non-payment of fines arising out of narcotic offences previously committed. The fines amounting in one instance to a balance of $350.00 and in another instance to $800.00, remained unpaid despite the fact that the Appellant had secured a banker’s cheque for the Clerk of the Peace in the sum of $1,150.00. An Officer Brown held the cheque for one (1) year and the money was never paid to the Court, unknown to the Appellant. While the cheque was in the Officer’s possession, the Appellant was arrested and imprisoned by other officers. The Appellant was eventually released after his mother retrieved the cheque from Officer Brown and paid the outstanding fines.
(5) At the trial, Officer Brown denied ever having received a cheque from the Appellant. The Appellant challenged his arrest, detention, and/or imprisonment by servants of the Respondent from 3 rd November 1998 to 25 th November 1998. The Appellant claimed he had been arrested without being informed of his right to retain an attorney. The undisputed or unchallenged issue in the Court below however, was that the Appellant during his imprisonment at the Port-of-Spain prison, had his Rastafarian ’dreadlocks’ shorn off against his will and was subjected to a meat diet which was contrary to his religious beliefs and practices.
(See table at Appendix I for details of disputed and undisputed facts).
(6) The findings of the trial judge (not challenged in this appeal) were as follows:
(i) The Appellant was lawfully arrested on 3 rd November 1998 under a valid warrant for non-payment of fines.
(ii) None of the arresting police officers had informed the Appellant of his right to retain Counsel; [1]
The above notwithstanding, based on Rajesh Ramsarran v. AG [2] there was no breach of the Appellant’s right to be informed of his right to consult an attorney upon his arrest, in the circumstances of this case. [3]
(iv) The unchallenged evidence was that the Appellant suffered while in prison the removal of his “dread locks” hair against his will. He was beaten and also deprived of his vegetarian diet. These actions denied the Appellant his fundamental right to security of the person and freedom of conscience and religious beliefs.
(v) Parallel remedies in tort such as assault and battery, were also associated with these unlawful acts.
(vi) On the basis of Jaroo v. AG [4] , the Appellant should have made use of the available common law procedure rather than pursue constitutional proceedings which were only to be invoked in exceptional circumstances, and therefore the proceedings were an abuse of process.
7. The motion was therefore dismissed with costs.
(8) On the first issue, the primary finding by the trial judge was that the Appellant was never informed of his right to consult an attorney upon arrest. She observed:
“I find it passing strange that the Applicant is suddenly taken into custody while he is ostensibly selling handbags in the centre of the town of Sangre Grande and would not ask to contact a family member or relative or friend, when he is offered such an opportunity. I do not accept that any of the police officers told the Applicant of these rights at any time after his arrest.” [5]
However, basing her reasoning on the authority of Rajesh Ramsarran v. The Attorney General [6] , the learned Judge decided that the Appellant’s right to consult an attorney had not been breached. In that case the local Court of Appeal held that the rights under consideration protected by the Constitution were confined to the pretrial stage only.
(9) By Privy Council Appeal No.18 of 2004, the Ramsarran judgment was reversed so that it is now law that a person’s fundamental human rights are breached when he is not informed of his right to consult an attorney upon arrest. It was there confirmed that the same rights (to consult) are enjoyed by a person arrested for the non-payment of a fine. The Board rejected the view that section 5(2) (c) of the Constitution was designed only for persons arrested or detained during an investigation. Section 5 (2) reads:
“5 (2) Without prejudice to sub-section 1, but subject to this Chapter and to section 54, Parliament may not:
deprive a person who has been arrested or detained:
of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention;
of the right to retain and instruct without delay, a legal adviser of his own choice and to hold communication with him.”
The opinion of the Board was that an examination of previous decisions such as Maharaj v AG [7] , Thornhill v AG [8] and AG v. Whiteman [9] confirmed that it was the right of a person arrested on suspicion of having committed a criminal offence, to retain and instruct a legal advisor and to hold communication with him. This right was protected by the Constitution, both on a proper construction of section 5(2) (c) and on the basis of settled practice embodied in the Judges’ Rules. [10]
(10) According to the Board in the Ramsarran case, the purpose of Constitutional protection was to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence, have an effective and practical means of securing their release as soon as possible. Their Lordships there reasoned:
“… If the Appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for the payment of the fine and could have made a speedy habeas corpus application, if this did not secure the Appellant’s early release.” [11]
Similarly, in this instance, even though the Appellant had not paid the fine at the time of the arrest, had he been allowed the benefit of the legal advice, the court would have been alerted as to the time when the cheque was eventually paid. In light of the Judges’ Rules and the Professional Code of Ethics as well as the Constitutional provisions, it is clear that the Appellant was deprived of his right to be informed of his right to consult an attorney on his arrest.
The learned Judge therefore erred in finding that the Appellant’s right to be informed of his right to counsel was not infringed.
Abuse of Process
(11) The second issue questions the right of the Appellant to proceed by way of originating motion under Section 14 of the Constitution. It is the Appellant’s contention that there is a right to proceed by originating motion under section 14 of the Constitution and to secure redress where an applicant can prove a contravention or breach of his fundamental rights. This right is an entrenched Constitutional right and subsists despite the availability of any other remedy. [12]
(12) In Jaroo v. AG , the Board made the point that the right to apply to the High Court under section 14(1) of the Constitution should be exercised only in exceptional circumstances where a parallel remedy exists. There the Board repeated the warning by Lord Diplock in Harrikissoon v. AG [13] that the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not sufficient to invoke the constitutional jurisdiction of the Court. If it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the Court and is being made:
“… solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involved no contravention of any human right or fundamental freedom,” [14]
then it can be said that there was an abuse of process.
Harrikissoon v AG was a case in which there was no contravention of any fundamental right guaranteed under the Constitution. There was at the time a perceived tactical advantage to be gained by utilizing the procedure under the Constitution because constitutional motions were usually afforded priority in listing for trial. Of course, the way to address that is simply to assess matters on a case-by-case basis and afford each case such priority, as it deserves. No question of a parallel remedy arose on the facts alleged because they disclosed no breach of any constitutional right.
Lord Diplock’s observations have been cited in several later cases that followed. They have been interpreted as extending the concept of abuse of process beyond the simple case where no constitutional right has been infringed. In Chokolingo v AG [15] , the applicant challenged his committal to prison after a contempt hearing. The Board found that he had not been denied “due process” or the “protection of the law” since the law referred to in the constitution was the law as interpreted and applied by the courts. Lord Diplock in giving the reasons for the decision pointed out that to hold otherwise would be to give the applicant several bites at the cherry (i.e. parallel and cumulative remedies) since the right of redress afforded under the constitution was expressed to be “without prejudice to any other action with respect to the same matter which is lawfully available [16] ”. As in Harrikissoon, there was no infringement of any constitutional right in Chokolingo.
In Maharaj v AG (No2) [17] the question for the decision of the Board was whether a judicial error involving a breach of natural justice could amount to a denial of “due process” in contravention of the constitution. The Board decided that it was appropriate to seek constitutional redress if the result of the breach had been a deprivation of life, liberty, security of the person or enjoyment of property. In that case, the deprivation of liberty had already occurred. Lord Diplock made the observation that in a case where a party to legal proceedings who alleges that the rules of natural justice have been infringed seeks collateral relief by constitutional motion instead of pursuing his right of appeal, the court had power to prevent misuse of its process by, for example, staying the motion until the conclusion of the original proceedings [18] .
(13) In the present case there were no other extant proceedings. In so far as the deprivation of liberty was concerned, it did not flow from a wrongful arrest. The trial judge found that the arrest was lawful and there has been no cross-appeal against that finding. The deprivation of liberty flowed from the fact that he remained in custody for a longer period than was necessary or reasonable because of the failure of the police to inform him of his right to an attorney. This was a breach of a constitutional right for which there had previously been no tortious remedy at common law. It is not a liability in tort at all; it is a liability of the state in public law [19] . There is therefore no collateral remedy available to the appellant.
(14) In AG v McLeod [20] , Lord Diplock reiterated the need for vigilance in ensuring that the court’s process was not misused. He cited Harrikissoon and Chokolingo as two specific examples of the type of abuse to be guarded against:
Where the application is made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action, which involves no contravention of any human right or fundamental freedom;
Where the application is used as a means of a collateral attack upon a judgment of a court acting within its jurisdiction. [21]
As in McLeod, the present case does not fall into either of the above categories. Based on the trial judge’s finding of fact, there was a contravention of the appellant’s fundamental rights. That has not been challenged. Her decision to dismiss the motion rested upon her view that an adequate parallel remedies existed.
(15) In Hinds v AG of Barbados [22] the appellant unsuccessfully argued during his appeal against conviction that his right to a fair hearing had been infringed by the refusal of the judge to grant him a legal aid certificate. He then filed a separate constitutional motion seeking relief on that same ground. In rejecting his appeal the Board observed that Lord Diplock’s caution remained pertinent i.e.:
“ a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or judicial decision, nor an additional means where such a challenge, based on constitutional grounds, has been made and rejected [23] ”
In this case there has been no previous challenge or judicial decision and the principle of res judicata does not arise.
(16) The cases which stress the need to guard against abuse of the procedure for redress under the constitution are in sharp contrast to those in which there has been a clear infringement of a constitutional right. In Observer Publications v Matthew [24] the Board observed that the last words of the passage from Harrikissoo n quoted above were not to be brushed aside:
“…the image of the Constitution as secluded behind closed doors is not one which their lordships adopt. Nor would it
be right to think of the Constitution as if it were aloof or, in the famous phrase of Holmes J, ‘a brooding presence in the
sky’. On the contrary, human rights guaranteed in the Constitution of Antigua and Barbuda are intended to be a major influence
upon the practical administration of the law. Their enforcement cannot be reserved for cases in which it is not even arguable that
an alternative remedy is available. As Lord Steyn said, delivering the advice of the Privy Council in
Ahnee v Director of Public Prosecutions
[
1999] UKPC 11; [1999] 2 AC 294 at 307 ‘…bona fide resort to rights under the Constitution ought not to be discouraged.’ Frivolous, vexatious or
contrived invocations of the facility of constitutional redress are certainly to be repelled.”
(17) The opinion of the Board in Jaroo has to be understood in that light. Jaroo was a case where there was a parallel remedy. Their lordships advised that applicants should first consider the true nature of the right allegedly convened [25] . If it is in essence a common law right, then the fact that it also could fit the definition of a right protected by the constitution does not, by itself, justify resort to procedure by way of constitutional motion. There has to be some exceptional feature, such as the absence of any dispute on the facts, which would make such a procedure more convenient and appropriate. That test was based on the premise that there was a parallel remedy available at common law for the enforcement of the appellant’s rights [26] .
(18) What is evident from Jaroo and other similar cases is that the determining factor in deciding whether there has been an abuse of process is not merely existence of a parallel remedy but also that the pursuance of the application to the High Court must be viewed as being made for the sole purpose of avoiding the normal judicial remedy for unlawful administrative action.
(19) The opinion in Jaroo has recently been considered and clarified by the Board in AG v Ramanoop [27] . Their lordships laid stress on the need to examine the purpose for which the application is made in order to determine whether it is an abuse of process where there is an available common law remedy [28] . In their lordship’s words:
“…where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule, there must be some feature, which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a
misuse, or abuse, of the court’s process. A typical, but by no means exclusive , example of such a feature would be a case where there has been an arbitrary use of state power.” [29] (emphasis added).
Another example of a special feature would be a case where several rights are infringed, some of which are common law rights and some for which protection is available only under the constitution. It would not be fair, convenient or conducive to the proper administration of justice to require an applicant to abandon his constitutional remedy or to file separate actions for the vindication of his rights.
(20) The present case differs from Jaroo in at least two important respects:
(i) At the core of this case there are two breaches of fundamental rights, (i.e. to freedom of religious belief and observance), and the right of the appellant to be informed of his right to counsel.
(ii) In respect of those breaches, there is no alternative common law remedy.
There was no dispute in relation to these facts. The absence of any dispute on the facts was a factor accepted in Jaroo as relevant to the determination whether it was appropriate to proceed by way of originating motion. The undisputed facts (either not challenged or as found by the judge) underpin the declarations.
(21) In the present case the learned judge agreed that the cutting off of a person’s hair against his will and the inflicting of physical blows on an individual can amount to breaches of the constitutional rights to security of the person or the common law tort of assault and battery. She further said:
“… cutting off ‘dread locks’ which are worn for religious reasons or serving a non-vegetarian diet in breach of religious practices can also amount to breaches of the constitutional right to freedom of conscience and religious belief and observance.”
She also found that the appellant’s right to be informed of his right to Counsel had been breached.
The trial judge, however, was of the view that there was an abuse of the court process by the Appellant since parallel remedies were available in tort and facts were in dispute. [30] This was undoubtedly true in respect of some of the grounds upon which the application was based. While remedies existed in tort for false imprisonment and trespass to the person, there was also available the remedy of constitutional redress for breaches of fundamental human rights, specifically the right to freedom of conscience and religious belief and observance, and the right of the appellant to be informed of his right to Counsel.
(22) If one were to borrow the language of Jaroo , the ‘true nature’ of the complaint is a breach of the applicant’s constitutional rights. It was therefore appropriate to proceed by way of originating motion.
(23) The appellant also submitted that the judge ought to have exercised her discretion to allow the matter to be converted as if begun by writ in accordance with the guidance given in Ramanoop . In that case the Board advised that the emergence of a factual dispute does not necessarily render the proceedings an abuse where the alleged facts, if proved, would call for constitutional relief [31] . This was a case in which those facts that were not disputed clearly established a breach of constitutional rights.
(24) Despite acknowledging the opinion of the Board in Ramanoop , the learned Judge decided that she was:
“… unable to accept the submission of the Applicant’s Counsel that the Applicant’s Notice of Motion should be treated as a writ.” [32]
She simply held that the originating motion was an abuse of process and failed to do anything more in aid of it. She did not allow the Applicant to amend his course of action, which at that stage, was clearly viewed (erroneously) by all parties as the wrong procedure. She therefore erred in dismissing the motion in its entirety. A trial judge in my view should make every effort to save the proceedings where it is just and reasonable to do so. Matters of procedure are to be kept flexible in order to do justice between the parties. This is clearly reflected in Order 2 of the Rules of the Supreme Court. Striking out for an abuse of process must be a last resort.
(25) The exercise of her discretion in that manner at such a late stage of the proceedings also defeated the objective of all the learning, which is to dispose of matters such as this in the most just and convenient manner and to avoid a multiplicity of actions. All the evidence had already been heard and she was in a position to make findings of fact. There was no point in requiring the applicant to file new proceedings and present the case all over again before a different judge.
CONCLUSION
(26) In view of the undisputed breach of the appellant’s constitutional rights this matter was properly begun by way of originating motion. The case should therefore be remitted to the judge below to enter judgment against the Respondent in the following terms:
(i) A declaration that the Appellant’s right to be informed of his right to retain and instruct without delay a legal advisor of his own choice and to hold communication with him was infringed;
(ii) A declaration that the Appellant’s right to freedom of conscience and religious belief and observance was infringed.
(iii) Order for damages (if any) resulting from the aforesaid breaches to be assessed.
The appeal is therefore allowed. The respondent must pay the costs of this appeal certified fit for senior and junior Counsel.
Sat Sharma
Chief Justice.
I agree.
M. Warner
Justice of Appeal
I also agree.
I. Archie
Justice of Appeal.
[Context] [Hide Context] [1] See page 10 of Judgment of Tiwary-Reddy J. dated 11 th June 2004.
[2] Civ. App. No. 108 of 2000
[3] See page 11 of Judgment of Tiwary-Reddy dated 11 th June 2004.
[4] PC No.54 of 2000
[5] See page 10 of Judgment of Tiwary-Reddy J. dated 11 th June 2004.
[6] Civ. App. No. 108 of 2000.
[7] (No.2) [1978] UKPC 3; [1979] AC 385
[10] See page 5 of Privy Council Judgment in Ramsarran v AG , No.18 of 2000.
[11] Paragraph 11 of Privy Council Judgment in Ramsarran v AG , No.18 of 2000.
[12] See page 10 of the Appellant’s Skeleton Arguments dated and filed 21 st March 2005.
[13] [1980] AC 265, 268
[14] See paragraph 29 of Privy Council Judgment
[16] See pp 111H – 112B of Judgment and section 14(1) of the Constitution
[17] [1979]AC 385
[18] See pp 399H – 400A
[19] See Maharaj v AG @ pp 399
[21] see Judgment @ pp 530 B - D
[22] [2001] UKPC 56; [2002] 1 AC 854
[23] See judgment at para 24
[24] [2001] UKPC 11; (2001) 58 WIR 188
[25] para 39 of the Judgment
[26] See para 32 of Judgment
[28] para 24 of the Judgment
[29] para 25 of the Judgment
[30] It is significant that these facts in dispute only concerned the payment of the fine and whether the appellant had been wrongfully incarcerated.
[31] See para. 30 of the Judgment
[32] (Supra)
[Context] [Hide Context]
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