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Trinidad and Tobago High Court |
] [Hide Context] REPUBLIC OF TRINDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE PORT OF SPAIN Claim No. CV 2010-02956
BETWEEN
IJAZ BERNADINE
Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
BEFORE THE HONOURABLE MR. JUSTICE PETER A.
RAJKUMAR
APPEARANCES:
Mr. Jagdeo Singh instructed by Mr. Michael Rooplal for the
claimant
Mr. Emmanuel H Pierre instructed by Ms. Patricia Cross for the
defendant
Judgment
INDEX PAGE Background 3
The Claim 3
Issues 4
Findings of Fact 5
Conclusion 8
The Role of the Court 10
Disposition and Orders 12
Analysis and Reasoning 13
The Evidence
Evidence of the claimant Ijaz Bernadine 13
The Alleged Injuries 15
Edison Bernadine 17
Clinton Harripersad 18
Hubert La Rode 19
Challenor Chadee 20
Law
Right to retain and instruct without delay a legal advisor and to be
informed of that right 26
False Imprisonment 27
Assault and Battery 30
Exemplary Damages 31
Conclusion 32
Disposition and Orders 33
Background
1. The claimant claims that after taking a detour via the Priority
Bus Route, driving home from work around midnight, he was
chased by the police,
shot at, assaulted and beaten, detained and eventually released fifteen and a
half (15 ½) hours later,
after being issued with two fixed penalty tickets
for traffic offences.
2. He claims that he was not afforded the right to retain or instruct a legal
advisor or allowed to contact his father – an
inspector of
police.
3. The defendants deny that they assaulted or beat the claimant, but
admit that three shots were fired at his vehicle. They
assert that they fired
shots, after the vehicle had come to a standstill, because they observed a male
passenger who alighted from
the vehicle with something in his hand resembling a
firearm. They claim that passenger ran into a yard and escaped. They deny any
infringement of the claimant’s constitutional rights.
The claim
4. The claimant claims against the Defendant, the following
reliefs:
1. Damages including aggravated and/or exemplary damages for false
imprisonment, assault and battery;
2. A Declaration that the Claimant was denied his constitutional right
pursuant to Section
5(2) (ii) of the Trinidad and Tobago Constitution, to retain and instruct
without delay a legal advisor of his choice and hold communication
with
him.
3. A Declaration that the claimant was deprived of his
constitutional right to communicate with a friend and or relative
via a
telephone.
4. Damages for violation of the claimant’s constitutional rights.
5. As to the claims for constitutional relief, it is clear, since
Antonio Webster v The
Attorney General of Trinidad & Tobago [2011] UKPC 22 Privy Council
Appeal No 0079 of
2010 that these were redundant in a claim such as this, which is
effectively for damages in private law. However the court is called upon
to make
findings of fact with respect to the matters which constitute the alleged
constitutional infringements, and can factor these
into its consideration of
whether exemplary damages would be awardable.
Issues
6.
(i) Whether on or about the 15th May 2009 the servants and/or agents of the Defendant: (a) Shot at the claimant’s vehicle while he was driving;
(b) Unlawfully assaulted and beat the Claimant;
(c) Arrested the Claimant without reasonable and probable cause;
and
(d) Falsely imprisoned the Claimant.
(ii). Whether the servant and/or agents of the Defendant failed to afford
the claimant the opportunity to retain and instruct
without delay a legal
advisor of his choice and hold communication with him.
(iii). Whether in the circumstances, the Claimant is entitled to an award
of aggravated and/or exemplary damages.
7. The issues are primarily factual, and involve a determination of whether or not the claimant is telling the truth. That necessarily involves an assessment and determination as to whether or not the defendants’ witnesses are telling the truth, as there is little middle ground.
This is illustrated by the evidence of each in their respective witness
statements which are therefore necessarily and unavoidably
set out at some
length.
Findings of fact
8. In light of the Claimant’s overtaking a line of traffic and
driving onto the Priority Bus Route, and the Claimant’s
trying to evade
Police Officers, in the process bypassing a police road block, the Police
Officers had reasonable and probable cause
to attempt to stop the
claimant’s vehicle and investigate. However they do not contend that they
fired shots at the vehicle
in trying to bring it to a halt, or that they were
shooting at its tyres. They assert that they fired shots when the vehicle had
already come to a standstill.
9. Apart from the manner of his driving there is absolutely no
evidence that the claimant had committed any offence. Further,
it is significant
that he was eventually only issued two fixed penalty tickets for traffic
offences, which were not arrestable offences.
10. I find that the introduction into the scenario of the alleged
passenger with an object resembling a firearm was a concoction
designed to
explain the gratuitous discharge of a firearm at the claimant in the course of
their pursuit of him. As Officer La Rode
explained, when a firearm is discharged
a first division officer must visit the scene and investigate. The remainder of
the scenario,
the purported interrogation of the claimant and the search of his
premises for arms and ammunition, was only justifiable if there
had in fact been
a passenger, who did in fact have a firearm or something resembling
one.
11. In fact the conduct of the officers confirms that they themselves had no reasonable belief in the existence of such an individual. This is demonstrated for example by their failure to ensure that the claimant’s vehicle was dusted for finger prints, and their failure to record in the
station diary, or anywhere, that the claimant was asked the name or identity
of his alleged gun toting passenger.
12. I find that there was no such passenger, far less any firearm or
item resembling one. That being a concoction and fabrication,
the purported
interrogation of the claimant, and the search of his premises for arms and
ammunition was merely the continuation
of a farce, and an unjustifiable
infringement and abuse of his rights.
13. I find that in fact the claimant’s evidence is far more
believable, based on his attitude and demeanour under cross
examination and its
inherent consistency. I accept therefore that shots were fired at the
claimant’s vehicle after his admittedly
suspicious
driving.
14. I do not accept that they were fired after the vehicle was
apprehended, when a front seat passenger in his vehicle was allegedly observed
with something resembling a firearm.
15 I find that as a result, the claimant was, as he testified, in fear
for his life and trying to find safety. He panicked
and drove past a police
roadblock, without realizing that the vehicle and policeman he saw was in fact a
roadblock. He drove past
a police station in his panic. He thought someone was
trying to kill him - a reasonable assumption, as in fact shots were being fired
at his vehicle. I find that that was a reasonable explanation which I
accept.
16. I find that the claimant was assaulted and beaten as he testified.
His injuries are supported by a medical certificate from
Mt Hope, and the fact
of injury is accepted by the defendants, though not their extent or cause. I
find that the explanation of a
fall causing those injuries is another
fabrication by the defendant’s officers, a continuation of their
fabrication with regard
to:-
a. the alleged passenger,
b. the alleged item resembling the firearm, c. the alleged chase of that
passenger.
17. I find that their evidence is untruthful particularly with regard
to these aspects of the case.
18. I find that the claimant was detained without being permitted to
contact his father as he requested, and he was never informed
of his right to
consult a legal advisor, or any other right.
19. I find that any detention of the claimant after his vehicle was
apprehended and nothing illegal found was unlawful, as being
without reasonable
and probable cause.
20. If there had in fact been a passenger with something resembling a
firearm then the further investigation and detention of
the claimant would be
more explicable, and in fact justifiable. I have however found as a fact that
that was a fabrication by the
officers involved which could not stand up to or
survive their cross examination.
21. I find that there was no other occupant carrying a firearm in the
vehicle, nor could the claimant, nor the fictitious passenger,
possibly be under
genuine suspicion of having one or threatening to discharge one. This was a
concoction by the officers.
22. I find that the claimant was taken to the Tunapuna police station, then to Mt. Hope hospital for medical care.
23. I find that the Defendants well knew how the claimant’s
injuries occurred and in fact had themselves inflicted them
upon the
claimant.
24. I find that the claimant was not informed of his constitutional
rights.
25. The claimant’s evidence is accepted that he was chased, shot
at, beaten, detained, falsely imprisoned and denied fundamental
constitutional
rights.I find that the Claimant was falsely imprisoned by the Defendant for a
period of 15 and a half hours, that
he was subjected to assault and battery by
police officers acting on behalf of the Defendant, and that he was not informed
of his
right to retain and instruct without delay a legal advisor of
his choice and hold communication with him, or any constitutional
rights.
Conclusion
26. The claimant gave his evidence with conviction. I have absolutely
no doubt that he was telling the truth. He was a responsible
young person,
working a late shift at his job at a cinema, on his way home from
work.
27. He was not a bandit, or the friend or accomplice of bandits, and there was no one in the front passenger seat with a firearm or anything resembling one so as to justify the excessive force, and gross over reaction of the defendant’s agents in shooting at him, and in assaulting and beating him after they apprehended him. That behaviour was completely unjustified and there was a real possibility it could have resulted in the claimant’s death. They were not entitled to assume that the claimant was a criminal. They were not entitled, if they did, to persist in that assumption in the face of evidence to the contrary when they apprehended him.
28. There was nothing that the claimant did that deserved this response
and the attempt to portray him as a criminal rather
than a victim was conduct in
further aggravation of indefensible behaviour by the defendant’s
agents.
29. They were not entitled to seek to punish the claimant extra
judicially. They were not entitled to place the claimant at
risk of serious
personal injury or death by shooting at him in the absence of a threat to
themselves. I expressly find that there
was no such threat as there was no
passenger in the front seat of the claimant’s vehicle. He was alone, and
the passenger,
and the alleged item resembling a firearm, was fabrications after
the incident.
30. They were not entitled to fabricate allegations and charges against
the claimant to seek to justify the arrest and ill treatment
of the
claimant.
31. They were not entitled to attempt to tarnish the reputation of the
claimant and to persist in that attempt by portraying
and insinuating in their
defence that he was associated with characters at night who carried firearms,
and was therefore himself
associated with criminals or criminal activity. It is
the fabrication of those allegations and the persistence to trial in those
attempts to tarnish the claimant’s character that bring this matter into
the category of case where an award of exemplary damages
is
appropriate.
32. The sweeping powers granted to police officers are to be used within the confines and parameters of the law. In a democracy governed by the rule of law and the Constitution, they are not to be used, as I expressly find was done in this case, to infringe the safety, security, reputation, or constitutional rights, of law abiding citizens.
The role of the court
33. I have found as a fact, on a balance of probabilities:
a. That the claimant was shot at;
b. That the claimant was assaulted and battered for no reason; and
c. That police officers, agents of the defendant, deliberately lied on
oath:
i. About shooting only when the claimant’s vehicle had come to a standstill. ii. About seeing a passenger run away from the claimant’s vehicle.
iv. About not assaulting and battering
the claimant.
34. They conspired with one another and were complicit in concealing the
truth from their superior officers and from the court.
35. This is serious conduct which should send a chill down the spine
of right thinking citizens. It is conduct which embodies
the worst nightmares of
law abiding citizens - that they, themselves or their families could be branded
as criminals and treated
as such and face the full
force of agents of the State without recourse.
36. The claimant was the law abiding and hard working son of a former police
inspector. That was not enough to spare him the ordeal
which he
endured.
37. The defendants’ agents shot at him without any apparent restraint. It was only by luck that he was not killed or maimed for life. No apology was forthcoming. Instead the defendants sought to portray him as a criminal or associate of criminals, and destroy his reputation.
38. The court’s role in circumstances such as these must be
considered. The law permits compensation to be awarded
to him for his detention,
and for his injuries sustained as a result of his assault and
battery.
39. The law allows such compensation to include an
uplift for the aggravating circumstances under which
these
occurred.
40. The law further allows exemplary damages to be awarded taking
into account any breaches of his constitutional rights.
41. The law must go further. It must of course achieve justice for
the individual. But the courts also have a wider responsibility
to the society
in which they operate. That responsibility requires that at a minimum they
examine the circumstances and make findings
of fact without fear or favour and
expose such to the public scrutiny.
42. In this case I have found as a fact that the claimant’s
vehicle was shot at without there being any threat whatsoever
to the safety of
the officers involved. The claimant was brutally battered for no reason when he
stopped his vehicle causing him
to sustain painful injuries. The claimant was
treated like a criminal though his only offence was to try to take a short cut
via
the Priority Bus Route (PBR) and in so doing overtake a line of vehicles
waiting at a traffic light. The claimant was detained on
the pretext that the
officers were investigating the possibility that he had arms and ammunition in
his possession, and sought to
justify that fictitious investigation by
fabricating the existence of a passenger in the claimant’s
vehicle who
allegedly had something resembling a firearm.
43. No such passenger existed. No cause therefore existed to suspect the claimant of any offence involving firearms or ammunition. No cause existed for the attack and infliction of injuries upon him, or for his detention for 15 and ½ hours.
44. Such behavior randomly targets citizens and no one can consider
himself immune The only safeguard is the courts’ willingness
to expose
such behavior and enforce and uphold the rights of citizens. That is a remedy
after the fact.
45. To reserve comment in a situation like the instant one is to
participate in a culture of complicity which can have as its
only end a steady
erosion of the rights of law abiding citizens. The further comments of this
court are aimed at preventing a repetition
of similar behavior in the interest
of such citizens as they deserve nothing less.
46. The duty of courts in a democracy which subscribes to the
recognition, protection and enforcement of basic standards of
treatment of its
citizens, requires condemnation of high handed and oppressive actions, behavior
and conduct of the servants or agents
of the State , lest it be condoned,
encouraged, systematized and perpetuated.
47. This matter requires investigation of the officers named in this
action, who were all entrusted with the responsibility
to protect and serve.
Without consequences there is no reason to expect that unlawful behavior
violative of the rights of law abiding
citizens will not be
repeated.
Disposition and Orders
48.
c. The defendant is to pay the claimant’s costs on the basis
prescribed by the Civil
Proceedings Rules for a claim in the amount assessed above inclusive of
interest.
Analysis and Reasoning
The Evidence
49. Evidence of the claimant Ijaz Bernadine
2. On the 14th May 2009 I was living at #2 Rose Drive, St. Augustine and employed at Caribbean Cinemas located at Trincity Mall. On Thursday 14th May 2009 I left my place of employment after completion at around 11.50 pm in my motor vehicle registration number PBF5879. I arrived at Pasea Corner and Priority Bus Route overtaking a line of vehicles and swung left on the Bus Route to make a short-cut by the market road to get to the Eastern Main road on my way home. On turning into the market road I saw a vehicle behind me and I turned right onto the Eastern Main Road with the intention of driving around the Tunapuna Police Station to lose the vehicle. I did not know that the vehicle was a police vehicle. At no point in time did I hear the sound
of a siren from or see any swivel lights on this vehicle.
At all material times I was alone in my vehicle.
3. I turned left onto the Bus Route and in the vicinity of the
back of the station I heard several loud explosions and felt the impact
of
something hitting my vehicle on the right side, I realized someone was shooting
at me and panicked. I made a circle around the station and turned left onto
the Eastern Main Road heading west. After I passed the market I noticed a
police vehicle on the road way and I attempted to drive pass when I again
heard several loud explosions and felt the impact of something striking my
vehicle. I observed my back windscreen through
the rear view mirror and saw that
the glass was shattered; a hole was visible in the glass. I
realized that someone was shooting at me again and felt that someone was
trying to kill me.
4. I turned into St. John Road and then into Austin Street and
came to a stop. Someone then ordered me to put my hands outside
the car window
and I complied, I was then struck with a hard object on the right side of my
face which started to bleed profusely.
I was then dragged out of my vehicle
where I was beaten by several people and thrown to the ground. .....
I was then taken to the back of my vehicle where someone kicked me in my back
and I fell to the ground, where I was kicked by
several people again to the
point where I lost consciousness.
5. When I regained consciousness I was handcuffed and in the tray of a vehicle that was moving. I was in extreme pain at the time. The vehicle arrived at the station where I was dragged out and carried into the station. ...........”. Up to that time no one had identified themselves to me as police officers. I later learnt that the person referred to as
“Harry” was No. 16376 P.C. Harrypersad. I also later learnt
that one of the other persons who had beaten me was No. 16351 P.C.
Chadee.
6. The man at the desk asked me what happened to my face I told
him I was beaten by these men who had bought me to the station.
He then told the
men that he was not putting me in a cell until I was taken to hospital to
receive medical attention. I was then
taken to the back of the station by the
said person who they were calling Harry, who took me to the sink and told me to
clean up
myself because he didn’t want to take me to the hospital in my
condition. When I had finished washing up my face and cleaning
up the counter as
instructed I asked the officer if I could be given a telephone call or if he
could contact my father, Edison Bernadine,
who is also a police officer. He told
me that I was joking.
7. I was taken to the hospital at Mt. Hope where I received
several stitches to my face and was X-rayed for internal injuries and
discharged with a prescription for anti- biotics, painkillers and given a
date for my return to remove the stitches. On my return to the station I
was taken to the back and placed in the third cell because the first and
second cells had people in them. I again told the said officer that my father
was an inspector of police and
I would like to call him please. The man who
placed me in the cell stated that I was an adult, and asked me why I wanted to
call
my father, to which I replied, “to inform him of my situation”.
I made this request to several police officers throughout
the night to no
avail.
8. At around 11.00 am on the 15th May 2009 I was
taken out of the cell and handcuffed. I was then taken to my apartment at #2
Rose Drive, St. Augustine and a party
of police officers proceeded to search my
apartment where nothing illegal was found. ....
On my return to the station I made several requests for a telephone
call to inform my parents of my incarceration, none of which were granted. I
was told that I would be going home soon, and that I didn’t need to call
anyone. I told the officer that I was in severe pain
and needed the medication
that was prescribed at the hospital. I also asked him if he could tell me when I
would be allowed to leave
to which he replied that they had not decided as yet.
I asked him if he could at least call my father so that he could purchase the
medicine and he said that he “did not know if that was allowed”.
I was then placed in an office at the back of the station.
9. At around 3.00 pm I was taken out of the office where I had
been kept for about three hours after returning with the officers
from their
search. I was then placed in another office where a police sergeant asked me to
give a statement and I replied “Yes”...At around 3.30 pm on the
15th of May 2009 I was given two Notices of Opportunity to Pay
Fixed Penalty tickets...and was allowed to leave the
station...
10. I was detained at the station for a period of approximately fifteen and a half hours. At no point in time upon my arrest and or during my detention was I informed of my right to retain and or instruct without delay a legal advisor of my choice and to hold communication with him. Furthermore, I was repeatedly deprived of my constitutional right to communicate with a friend and or relative via telephone call.
12. Early on the morning of the 16th of May 2009 I made
a telephone call to my father.
50. The claimant was driving home from work. It was close to midnight. His route involved a short detour onto the Priority bus route. To get there he overtook a line of vehicles. The claimant set this out clearly in his witness statement and under cross examination frankly admitted that
this was the case. That mode of driving clearly attracted the attention of the police. There is no assertion by him that he fell within a category of persons authorized to use the Priority bus route
- for use of which authorization is generally required. The police were
clearly entitled to follow him and investigate prima facie
suspicious
conduct.
51. However the penalty for unauthorized use of the priority bus route
is fixed by law. It is no part of that penalty that unauthorized
users are
liable to be shot at or shot, and if shots were fired at the claimant in those
circumstances that he described that would
obviously demand an
explanation.
The alleged injuries
52. The medical report produced by the claimant is to the effect that the
claimant sustained the following injuries:
(i) Right eyebrow laceration; (ii) Ecchymoses of right eye.
The report indicated that the injuries were consistent with use of a blunt
object with some degree of force.
53. The Claimant also tendered into evidence photographs of injuries as stated on the medical report but no photographs of the other injuries he stated he suffered to his chest, ribs and legs. His documentary evidence in corroboration of his injuries is therefore confined to facial injuries,
save that his father confirmed that he had also complained of soft tissue
injuries and that his body had blue black marks.
54. The defendant contended that the claimant’s evidence should
not be accepted because he did not seek to go the Tunapuna
Police Station which
he drove past, nor did he seek to stop to seek help by the police vehicle, which
he admitted he saw while trying
to escape, despite his belief that shots were
being fired at him and that someone was trying to kill him. Instead he drove to
a location
where he thought there would be a security guard. These are valid
points, but having heard the evidence of the claimant and his responses
under
cross examination, I am satisfied that panic, and not logic, dictated his
actions that night. He was being shot at and he was
fleeing for safety in fear
for his life. It is understandable in the circumstances that the idea of
stopping at the police station
or the side of the road to make a report, or seek
to persuade police officers there that he required assistance, would not be not
foremost in his mind.
55. In addition it was contended that the medical report did not
corroborate the bruising about the body which he testified
had been the result
of the brutal attack upon him. He testified to being unconscious for a period of
several minutes thereafter.
The defendant contended, in effect, that this
reflected an exaggeration by the claimant which should guide how this court
treated
with his evidence generally.
I accept the evidence of the claimant’s father in this regard. He
candidly accepted that he had come to give evidence to assist
his son. I do not
understand this to mean that he came to fabricate testimony, but rather that he
sought to achieve justice for his
son. His evidence was measured and sober, as
was the evidence of the claimant himself.
With regard to the claimant I find that there was no propensity to fabricate. The events of that night were extremely traumatic and had the most direct impact upon him. His description of them cannot in those circumstances be considered an exaggeration, and I certainly do not find them to be such. I am prepared in the circumstances to accept his testimony and to find that the medical report was incomplete or understated.
Edison Bernadine
56. Edison Bernadine is the claimant’s father. He is a
retired inspector of police. The claimant called him
after the incident. He
took pictures and made certain observations on the 16th May 2009. On
Monday 18th May 2009 he went to the Eric Williams Medical Sciences
Complex Mt Hope and made a request for the medical report in respect of the
Claimant’s treatment there on May 15th
2009.
57. The claimant did not call him immediately after he had been
released from custody, but only after he had gone home and slept.
He explained
that he did so after not having had anything to eat or drink and that he was in
extreme pain.
58. I have had the opportunity to observe the claimant give evidence in
this matter. He answered all question put to him candidly
without prevarication,
regardless of whether the answers would have reflected well on him. I find him
to have been a truthful witness
who gave honest evidence.
59. His version of events was inherently plausible and
did not contain inherent contradictions. I accept
his explanation as to
why, after a long traumatic ordeal which left him hungry tired and in pain, he
did not contact his father after
immediately after his release.
60. In fact, if it were being insinuated that the claimant did not
contact his father immediately after, because the nature
of the incident and his
treatment were not so traumatic or serious as not to impel him to contact his
father immediately, this is
contradicted by the fact that the defendants accept
the following:-
a. that the claimant had injuries – though they say they were not responsible for them. b. that the claimant was detained – though they say that he was detained lawfully.
c. that they did shoot at the claimant’s vehicle – though they
say that they were justified in taking such action by the
presence of the
unidentified stranger with the item resembling a firearm.
61. I find that the existence of these uncontested facts makes it
impossible to contend that any delay in the claimant contacting
his father
was attributable to the incident being less traumatic than the claimant
now contends.
Clinton Harripersad
62. Police Constable Clinton Harripersad stated that he was on mobile
patrol along Bharath Street Pasea when he observed the vehicle of the claimant
drive through the red
traffic lights and drove onto the bus route heading
west.
He turned on the swivel lights and siren and P.C Chadee gave chase after the said vehicle PBF
5879 which had another occupant seated in the left front seat of the said
vehicle.
He says that they gave chase onto railway road east along the Eastern Main
Road, South along Pasea Road, West along Railway Road,
East along the PBR, North
along Centenary St and West along the Eastern Main Road.
63. During this time he summoned assistance via the wireless, and
officers of the Area West Task Force set up a road block on
the Eastern main
road in Tunapuna near Republic bank. The driver drove through the road block
without stopping, after being signaled
to stop by the officers of the said task
force. P.C Chadee and Harripersad continued giving chase to the vehicle which
turned onto
St. John’s Road.
64. He stated at paragraph 7 that
On reaching the vicinity of the intersection of Warner Street and St. John’s Road, the vehicle came to a stop and the two occupants alighted. P.C. Chadee brought the Police vehicle to a stop about 15 feet to the rear of vehicle PBF 5879. The area where the vehicle stopped was not brightly lit but had sufficient light from nearby lighted street light and from the head lights of the police vehicle.
Paragraph 8
The male passenger of vehicle PBF 5879 pointed a small black object
which appeared to be a firearm in the directions of the P.C Chadee
and
myself. On seeing this I became afraid for my life and that of P.C.
Chadee, and proceeded to take evasive action by taking cover and simultaneously
discharging three rounds of ammunition from my service pistol, with a
view of disarming the suspect.
Paragraphs 9-11
The man with the black object resembling a firearm was of
African descent 6 feet tall, slim built and of dark complexion also wearing
dark clothing turned and ran west into a yard making good his escape. The
driver of the vehicle PBF 5879 ran east in the area of Connell Street
P.C.
Chadee gave chase after the driver of the said vehicle and subsequently held
him. A search was carried out in the area for the
other suspect without
success.
...I observed a cut over his right eye and P.C. Chadee questioned him as
to how he sustained the injury and he stated he fell whilst running away from
the Police. He was taken to the Eric Williams Medical Sciences Complex
where he was medically examined and a medical report wsa obtained on his
behalf. He was arrested and brought to the Tunapuna Police
Station pending
further investigation.
When the vehicle PBF 5879 was brought to the said station, I observed that
the back windscreen and right back fender, right front
fender was damaged. I
am uncertain how the damages were done to the vehicle PBF 5879. Police
Seargeant La Rode in the company of P.C. Chadee and myself went to the home of
Ijaz Bernadine the Claimant where I executed
a search warrant for arms and
ammunition but nothing illegal was found.
Hubert La Rode
65. In his witness statement Hubert La Rode stated:-
6. After the said Police Officers Chadee and Harripersad gave me
that report I introduced myself to the Claimant by showing
him my Trinidad and
Tobago Police Identification Card and told him of the report made against him.
He was further told that as a
result of that report a search will have to be
conducted of his home. The Claimant did not object to the search neither did
he ask to make a telephone call nor did he complain about being beaten by Police
Constables Chadee and Harripersad. ...
About 3:00 p.m. to 3:30 p.m. I interviewed the Claimant in my office, which was located
about twenty or thirty feet east to the general CID’s office. Police Constables Chadee
and Harripersad were in the general office. At (sic) this point I had no
further dealings with the Claimant.
Challenor Chadee
66. In his witness statement Police Constable Challenor Chadee
stated:-
3. Around 11:45 p.m. Thursday 14th May 2009 I was on duty armed with pistol
#6343 and 15 rounds of 9mm ammunition and Galil #6713 and 50 rounds of 5.56 ammunition, driving police vehicle TCB 1226 in company with P.C. Harripersad Regimental No. 16376 who was armed with pistol #6227 and 30 rounds of 9mm ammunition on mobile patrol duty along Bharath Street, Tunapuna on the western side awaiting the traffic lights for vehicles proceeding North along Pasea Road to turn green.
...
4. Whilst there I observed a blue Hyundai Accent vehicle bearing
number plates PBF 5879 proceeding in a northerly direction
along Pasea Road
overtook the said vehicle that was at a standstill at the corner of Pasea Road
and Bharath Street, drove through the red traffic lights and turned west
on to the Priority Bus Route (PBR).
5. The actions of the driver of vehicle with registration number PBF 5879 aroused my suspicion and I immediately had a conversation with P.C. Harripersad who turned on the swivel lights and siren on the said Police Vehicle. I began following vehicle PBF
5879 which had another occupant who was seated in the left from
seat.
6. I continued following vehicle PBF 5879 along the PBR on
to Railway Road, East along the Eastern Main Road, South
along Pasea Road, West
along Railway Road, East along the PBR, North along Centenary Street and West
along the Eastern Main Road.
During this period P.C. Harripersad summoned
assistance via the wireless set and officers of the Area West Task Force
caused a road block to be set up at the Eastern Main Road, Tunapuna in
the vicinity of Republic Bank.
7. The driver of vehicle PBF 5879 drove through the road block without stopping after being signalled to stop by the officers of the Task Force. I continued following vehicle PBF 5879 which turned north onto St. John’s Road. On reaching the vicinity of the intersection of Warner Street and St. John’s Road, vehicle PBF 5879 came to a stop and the two occupants alighted. I brought the Police vehicle to a stop about 15 feet to the rear of vehicle PBF 5879 and I observed the area where the vehicle PBF 5879
stopped was not brightly lit but had sufficient light from nearby lighted
street lights and from the head lights of the said Police
Vehicle.
8. I exited the police vehicle together with P.C. Harripersad
when I observed the male passenger who was seated in the front passenger
seat of vehicle PBF 5879 pointed a small black object
resembling that of a
firearm in our direction. On seeing this I became fearful for my life.
P.C. Harripersad took evasive action by taking cover and simultaneously
discharging three rounds of ammunition from his service pistol, with a
view of disarming the suspect.
9. The man with the black object resembling that of a firearm
was of African descent and about 6 feet tall, slim built and of dark complexion
also wearing dark clothing turned and ran west into a yard and P.C.
Harripersad immediately gave chase but the said man made good his escape. The
driver of vehicle PBF 5879 subsequently ran
east in the area of Connell
Street. I gave chase after the driver of the said vehicle and during this time
I lost sight of him for a few
seconds and subsequently held him a short distance
away. I observed damage to the said vehicle PBF 5879 but unable to say if
the said damage was done by P.C. Harripersad during the discharge
of his
firearm. A comprehensive search was carried out in the area for
the other suspect without success.
10. The driver gave his name as Ijaz Bernadine age 22 years of Rose
Drive #2 St. John’s Road, St. Augustine. I observed a cut over the
right eye of Ijaz Bernadine and I questioned him as to how he sustained the
injury and he stated he fell
whilst running away from the Police. He was taken
to the Eric Williams Medical Sciences Complex where he was medically
examined and a medical report was obtained on his behalf. He was arrested and
brought to the Tunapuna Police
Station pending further investigation. During the
time of his arrest Ijaz Bernadine the Claimant was conscious at all time. At
no time did I beat the Claimant Ijaz Bernadine in anyway nor did any officer on
the scene. ...
11. Sometime later I issued two fixed penalty notices to the
Claimant Ijaz Bernadine for breach of the PBR and branch (sic)
of Traffic sign
#B 455395 and #B 455394.
67. The cross examination of these officers revealed inherent contradictions and implausibilities in their evidence as follows:-
defendant’s
version of events. It fails because it is inconsistent with the contemporaneous
documentation – the entry
in the station diary.
vii. PC Harripersad claimed that he asked the Claimant the name of the
alleged second occupant. The witness admitted that he
did not state this in his
witness statement nor did he make a note in his pocket diary or the station
diary to this effect.
viii. As regard to the Claimant’s injuries, PC Harripersad did not
see where the Claimant had allegedly fallen.
ix. PC Harripersad initially admitted that Claimant had not committed an
arrestable offence, but later stated that the Claimant
had committed the offence
of “wanton driving”. He admitted that he never cautioned the
Claimant in respect of this offence.
xi. The witness denied that the Claimant was placed in a cell at the
Tunapuna Police Station, and this denial was an express allegation
in the
defence filed.
xii. PC Chadee also admitted that the alleged second occupant was wearing a white T-shirt and not dark clothing as stated in his witness statement. His strident attempts to explain why, despite the T-shirt that the alleged passenger wore being white, the overall effect of
the clothing was dark, justifying its description as dark coloured,
were singularly unconvincing.
xiii. This witness also claimed that the alleged second occupant ran into
a yard. PC Chadee stated that this yard was fenced and
that there were bushes to
the exterior of the fence. These bushes were taller than him.
xiv. According to PC Chadee, he and PC Harripersad jumped the fence and
went into the yard.
xv. He stated that no one cordoned off the area.
xvi. The witness admitted that it was not true that the Claimant was
taken to the Mt. Hope Hospital first. According to PC Chadee,
the Claimant was
taken to the Tunapuna Police Station first.
xvii. This witness admitted that he had no evidence that the Claimant had
committed any offence. He admitted that one can only
arrest someone if they
committed an arrestable offence.
xviii. The witness admitted that he saw no note that the Claimant was
told he was a suspect and cautioned. He admitted that the
offence of breaching a
traffic light and driving on the Priority Bus Route (PBR) without the requisite
pass were non-arrestable offences.
xix. PC La Rode admitted that a man pulling a gun on the police is an important matter. He agreed that this was not in his statement. Curiously, he made no note of both officers telling him this.
xx. He admitted to interviewing the Claimant at the cell of the
station.
xxi. He stated that he did not give instructions to dust the
Claimant’s vehicle for fingerprints
but photographs of scene were taken.
xxiii. The witness admitted that breaching traffic lights or driving on the PBR without a PBR
pass were not arrestable offences.
68. I consider that where, as here, a person in police custody is
being interrogated by a senior officer who observes that
he has injuries, he has
a duty to make inquiry of him as to how those injuries have been
sustained.
Law
69. Right to retain and instruct without delay a legal advisor of his
choice and to hold communication with him and to be informed of
that
right.
5. The Constitution provides that Parliament may not:
-
(c) Deprive a person who has been arrested or detained-
(i) Of the right to be informed promptly and with sufficient particularity
of the reason for his arrest or detention;
(ii) Of the right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him;
70. Where a person who has been arrested or detained has the statutory
or common law right to communicate with a legal adviser,
he should be informed
of that right as soon as possible after his arrest, and in any event before any
interrogation in custody takes
place. See The Attorney General of Trinidad
and Tobago v Whiteman [ 1992] 2 All ER 924 at 927-8
infra.
Paragraph 8(b) of Appendix B to the Judges Rules adopted in 1965 requires that persons in custody should be informed orally of the rights and facilities available to them, and that notices describing these should be displayed at police stations and drawn to the attention of persons in custody. This is properly to be regarded as a provision, and it prescribes a certain procedure to be followed. The rights referred to include the right to communicate with a legal adviser. Their Lordships are of the opinion that persons who have been arrested or detained have a right to a provision of this character, by virtue of s 5(2)(h), because otherwise the right so to communicate might not receive effect. In any event para 8(b) of Appendix B to the Judges Rules had been standing for over ten years when the 1976
Constitution came into force. It superseded the 1962 Constitution and
therefore the time of its introduction is the appropriate time
to consider the
existence of a 'settled practice' within the meaning of Lord Diplock's
description in Thornhill v A-G of Trinidad and Tobago [1981] AC 61 at 71.
There is no reason to suppose that the requirements of para
8(b) had not been regularly observed up until 1976, and a settled
practice of doing so must therefore be held to have then
existed.
Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of s
5(2)(h) of the Constitution of 1976 and on the basis of a settled
practice existing when that Constitution was introduced. Davis JA said
towards
the end of his judgment in the Court of Appeal:
'I am not prepared to lay down any general rule as to the precise point
in time when a person in custody ought to be informed of this
right, but it
should be as early as possible, and in any event before any "in-custody
interrogation" takes place.'
Their Lordships would indorse that. It is possible to envisage circumstances where it would not be practicable to
inform the person of his right immediately upon his arrest.
...
I find that there is no evidence in this case of any notices at the police station as contemplated by the Judges Rules and by the Privy Council. I find that there are absolutely no circumstances in this case which would have made it impracticable to have informed the claimant of his rights immediately upon arrest. To the extent that the officers claim that they did, their evidence is disbelieved. They have attempted to mislead this court on other fundamental issues of fact. The claimant denies that they so informed him. In fact he goes further and says they actively denied
him access to a telephone call to his father despite his requests. Nowhere is
it recorded that they so informed him.
71. I accept the claimant’s submission that it is clear from the
evidence that the Claimant was not informed of his constitutional
rights and
that he was denied his right to speak to his father. It is simply not credible
that the Claimant, having been informed
of those rights, would have elected not
to exercise them, given his medical condition, and the physical and mental
trauma I find
that he had experienced. Contacting his father, an Inspector of
Police, and /or a legal advisor could have prevented a very traumatic
situation
from degenerating yet further.
False Imprisonment
Reasonable and probable cause to justify arrest and continued
detention
72.
1. The relevant principles were recently summarised in Ramsingh
v. The Attorney General of Trinidad and Tobago [2012] UKPC 16 delivered May
23 2012 as follows (emphasis added).
2. Section 3 (4) of the Criminal Law Act Ch 10.04 provides
“where a Police Officer, with reasonable cause, suspects that an
arrestable offence has been committed, he may arrest without warrant
anyone whom
he, with reasonable cause, suspects to be guilty of the
offence.”
i) The detention of a person is prima facie tortious and an
infringement of section 4(a)
of the Constitution of Trinidad and Tobago. ii) It is for the arrestor to justify the arrest.
vi) Any continued detention after arrest must also be justified by the
detainer.
3. The onus is on the police to justify the arrest of the Plaintiff in an action for unlawful arrest and to establish reasonable and probable cause for the arrest: (Dallison v Caffery [1965]
1 Q.B. 348 at 370).
4. The test required was stated in O’ Hara v Chief
Constable of the Royal Ulster Constabulary [1996] UKHL 6; [1997] 1 AER 129 at p138j –139a
per Lord Hope of Craighead as partly objective and partly subjective. The
test is subjective because the arresting Police Officer must have formulated
a genuine suspicion within his own mind that the accused person has
committed the offence.
5. Further, the test is partly objective as reasonable
grounds for the suspicion are required by the arresting officer and
this must be judged at the time when the power is exercised. (See
also the
judgement of the Honourable Mendonca J as he then was in Harold Barcoo v A.G
of T. & T. and Browne – HCA 1388 of 1989 delivered December 19,
2001 page 5 –6 where he adopted the following analysis from the text
(Clayton & Tomlinson Civil Actions against the Police
(1987).
6. The test whether there was reasonable and probable cause has both subjective and objective elements.
1. Did the officer honestly have the requisite suspicion or belief?
7. The first two are subjective and the second are objective and
as Mendonca J, as he then was, pointed out, if the answer
to any one of these
questions is no then the officer would not have had reasonable
grounds.
8. In determining whether the arresting officer had reasonable and
probable cause, the first enquiry is to ascertain what
was in the mind of the
arresting officer and to determine whether the grounds on which the arresting
officer relied as the basis
for his suspicion were reasonable.
73. It is clear therefore that if the arresting officers knew there was
no passenger, and no object resembling a firearm, then
they could not possibly
have had any genuine suspicion that the claimant had committed any
arrestable offence, far less any reasonable grounds for the requisite suspicion
or belief
that the claimant had committed any arrestable
offence.
74. In fact they eventually acknowledged that they had no basis for
believing or suspecting that the claimant had committed any
arrestable offence
by their actions in simply releasing him after serving him with two fixed
penalty tickets – the penalty
on each being $200- for traffic
offences.
75. I find that neither PC Harripersad nor PC Chadee had any genuine basis for arresting the claimant in the absence of the alleged passenger and the alleged object resembling a firearm. I
find that after cross examination of these witnesses exposed the several
glaring contradictions in their evidence, it is clear that
neither the passenger
nor the alleged object existed. They were both fabrications of these
witnesses concocted to justify
their unnecessarily violent and brutal
treatment of the claimant, whom they had pursued, and at whose vehicle they had
fired
shots.
76. It follows that the continued detention of the claimant under the
guise of continued investigation of the alleged passenger,
and the possibility
that the claimant was also complicit in the unlawful possession of arms and
ammunition, was unjustified.
Assault & Battery
77. It is clear that the police officers PC Harripersad and PC Chadee
have deliberately tried to mislead this court as to the
existence of an
unidentified passenger with an item allegedly resembling a firearm. That
concoction was clearly for the purpose of
justifying the discharge of a firearm
in circumstances where it was a gross overreaction and not at all
warranted.
78. Their evidence under cross examination revealed an alarming
propensity to conceal the truth by evasions and fabrications.
Equally therefore,
their evidence as to how the claimant sustained his injuries is disbelieved and
not accepted. The claimant’s
evidence was far more forthright, cogent and
compelling, and I have no hesitation in accepting and preferring the evidence of
the
claimant as to how those injuries were sustained. I find as a fact that they
were sustained, at the hands of those and other unidentified
officers at the
scene of the claimant’s apprehension.
79. I find that the Claimant was falsely imprisoned by the Defendant for a period of 15 and a half hours, that he was subjected to assault and battery by police officers acting on behalf of the Defendant, and that he was not informed of his rights, including the right to retain and instruct without delay a legal advisor of his choice and hold communication with him.
Damages
Exemplary Damages
80. The House of Lords in Rookes v Bernard [1964] UKHL 1; [1964] AC 1129
recognized categories of cases in which an award of exemplary damages would be
appropriate at common law, including where there is
evidence of
“oppressive, arbitrary or unconstitutional action by the servants of the
Government.”
81. In Bernard v Quashie (supra) the Honourable de la Bastide CJ
stated “the function of
exemplary damages is not to compensate but to punish and
deter.”
82. In Takitota v AG of the Bahamas, Privy Council Appeal 71
of 2007 delivered March
18 2009 it was stated:
[12] The award of exemplary damages is a common law head of damages,
the object of which is to punish the Defendant for outrageous
behaviour and
deter him and others from repeating it. One of the residual
categories of behaviour in respect of which exemplary damages may properly
be awarded is oppressive,
arbitrary or unconstitutional action by the
servants of the government, the ground relied upon by the Court of Appeal in the
present
case. It serves, as Lord Devlin said in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129
at 1223[1964] UKHL 1; , [1964] 1 All ER 367, [1964] 2 WLR 269, to restrain such improper use of
executive power. Both Lord Devlin in Rookes v Barnard and Lord Hailsham of St
Marylebone LC in
Broome v Cassell & Co Ltd [
1972] UKHL 3; [1972] AC 1027 at 1081[1972] UKHL 3; , [1972] 1
All ER 801, [1972] 2 WLR 645 emphasised the need for moderation in assessing
exemplary damages. That principle has been followed in The Bahamas (see
Tynes v Barr (1994) 45 WIR at 26), but in Merson v Cartwright and the Attorney
General [2005] UKPC 38, [2006] 3 LRC 264 the Privy Council upheld an award of
$100,000 exemplary damages, which they regarded as high but within the
permissible
bracket.
Need for moderation
83. The need for moderation must be borne in mind when assessing
exemplary damages. That must be balanced with the need to
send a message of
condemnation of the behavior involved and to deter its recurrence.
84. The matters which support an award under this head of damage are as follows:-
(i) The fact that the unlawful battery of the claimant was compounded by his
detention and his ordeal being prolonged by a show of
investigating the
circumstances surrounding the imaginary passenger with the gun, and the farce of
searching for arms and ammunition
as a result.
(ii) The urgent need to deter such conduct before there is loss of
life.
85. I consider that this is an appropriate case for the award of
exemplary damages which will be a component in any damages
assessed by this
court.
Conclusion
86. The claimant gave his evidence with conviction. I have absolutely
no doubt that he was telling the truth. He was a responsible
young person,
working a late shift at his job at a cinema, on his way home from
work.
87. He was not a bandit, or the friend or accomplice of bandits, and
there was no one in the front passenger seat with a firearm
or anything
resembling one so as to justify the excessive force, and gross over reaction of
the defendant’s agents in shooting
at him, and in assaulting and beating
him after they apprehended him. That behaviour was completely unjustified and
there was a real
possibility it could have resulted in the claimant’s
death. They were not entitled to assume that the claimant was a criminal.
They
were not entitled, if they did, to persist in that assumption in the face of
evidence to the contrary when they apprehended
him.
88. There was nothing that the claimant did that deserved this response and the attempt to portray him as a criminal rather than a victim was conduct in further aggravation of indefensible behaviour by the defendant’s agents.
89. They were not entitled to seek to punish the claimant extra
judicially. They were not entitled to place the claimant at
risk of serious
personal injury or death by shooting at him in the absence of a threat to
themselves. I expressly find that there
was no such threat as there was no
passenger in the front seat of the claimant’s vehicle. He was alone, the
passenger, and
the alleged item resembling a firearm, were fabrications after
the incident.
90. They were not entitled to fabricate allegations and charges against
the claimant to seek to justify the arrest and ill treatment
of the
claimant.
91. They were not entitled to attempt to tarnish the reputation of the
claimant and to persist in that attempt by portraying
and insinuating in their
defence that he was associated with characters at night who carried firearms,
and was therefore himself
associated with criminals or criminal activity. It is
the fabrication of those allegations and the persistence to trial in those
attempts to tarnish the claimant’s character that bring this matter into
the category of case where an award of exemplary damages
is
appropriate.
92. The sweeping powers granted to police officers are to be used
within the confines and parameters of the law. In a democracy
governed by the
rule of law and the Constitution, they are not to be used, as I expressly find
was done in this case, to infringe
the safety, security, reputation, or
constitutional rights, of law abiding citizens.
Disposition and Orders
93.
i The defendant is to pay to the claimant damages, including aggravated and exemplary damages, for false imprisonment, assault and battery, to be assessed and determined by this court in default of agreement.
ii The defendant is to pay to the claimant interest thereon at the rate of 6%
per annum from the date of service of the claim form
to the date of
judgment.
iii The defendant is to pay the claimant’s costs on the
basis prescribed by the Civil
Proceedings Rules for a claim in the amount assessed above inclusive of
interest.
Dated this 20th day of July
2012.
Judge
Peter A.
Rajkumar
The Court would like to record its appreciation to attorneys at law representing the parties for their assistance to this court and to judicial research assistant Ms. E. Ali for her contribution to this judgment.
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