Ceon Allen v Percival Johnson

JurisdictionJamaica
JudgeStephane Jackson-Haisley J.
Judgment Date02 February 2022
Year2022
CourtSupreme Court (Jamaica)
Docket NumberCLAIM NO. 2017HCV01678
Between
Ceon Allen
Claimant
and
Percival Johnson
1 st Defendant

and

The Attorney General of Jamaica
2 nd Defendant

[2022] JMSC Civ. 16

CLAIM NO. 2017HCV01678

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

False Imprisonment — Malicious Prosecution — Whether reasonable and probable cause to prosecute exists — Whether failure to properly investigate indicates malice — Whether initial arrest unlawful — Whether detention unduly lengthy — Aggravated Damages — Exemplary Damages — Sections 3(2), 4(a) of the Bail Act and the Second Schedule to the Bail Act — Sections 13, 15, 18 and 33 of the Constabulary Force Act

Preliminary point — Part 29.1 of the Civil Procedure Rules — Section 31E of the Evidence Act — Effect of failure to serve notice of intention to tender documents into evidence — Overriding objective of the Civil Procedure Rules

Mr. Andrew Irving for the Claimant

Ms. Shaniel Hunter instructed by the Director of State Proceedings for the 2 nd Defendant

IN OPEN COURT
Stephane Jackson-Haisley J.
BACKGROUND
1

On the 28 th day of November, 2012, the Claimant, Mr. Ceon Allen was arrested pursuant to a report made by the first Defendant, Mr. Percival Johnson. This was after Mr. Johnson pointed Mr. Allen out to the police as one of the persons involved in an incident in which Mr. Johnson was shot at, wounded and robbed. On the 3 rd day of December, 2012, Mr. Allen was charged for the offences of Illegal Possession of Firearm, Shooting with Intent, Unlawful Wounding and Robbery with Aggravation by Detective Corporal Peter Pike.

2

Mr. Allen was charged with one other person Mr. Andre Ingram. Consequent upon these charges being laid Mr. Allen remained in custody until he was offered bail on the 14 th day of December, 2012. After a period of some twenty-two months, on the 14 th day of October, 2014, the matter against Mr. Allen and the co-accused came to an abrupt end when Mr. Johnson attended Court and indicated that he no longer wished to proceed with the matter. The prosecution offered no evidence in the matter and a verdict of not guilty was entered against Mr. Allen and the co-accused.

THE CLAIM
3

On the 29 th day of May 2017, Mr. Allen filed the Claim herein against Mr. Percival Johnson as the first Defendant and The Attorney General of Jamaica as the Second Defendant. In the Claim he indicated that on the 28 th day of November, 2012, Detective Corporal Peter Pike, a member of the Jamaica Constabulary Force maliciously and without reasonable cause wrongfully imprisoned and deprived him of his liberty for nine days. Further, that the First Defendant and/or the Second Defendant subsequently maliciously and without reasonable and probable cause prosecuted him for Illegal Possession of Firearm, Shooting with Intent, Unlawful Wounding and Robbery with Aggravation. The Second Defendant is sued pursuant to the Crown Proceedings Act.

4

His claim is for Special Damages, Damages for Malicious Prosecution, False Imprisonment as well as Aggravated Damages, Exemplary Damages, Interest, Costs and further or other relief. Under the Particulars of Special Damages, he claims a total of $680,000.00 with $200,000.00 for Attorney-at-Law costs and $480,000.00 for loss of earnings from farming.

5

On the 15 th day of May, 2018, he discontinued the Claim against the First Defendant.

6

In his pleadings, Mr. Allen averred that on the 28 th day of November, 2012 he was walking past the Duhaney Park Police Station when he was accosted by Corporal Adams and taken to the police station. While at the police station, Mr Johnson told Corporal Adams that he knew about the incident and Corporal Adams told him that he cannot say that he knows about the incident but that he had to say he did it or he can't lock him up. Thereafter, Mr. Johnson said “Alright, yes him do it”. Mr. Allen was then arrested, handcuffed and taken to the Hunts Bay Police Station where he was maliciously and without reasonable cause charged for the offences mentioned previously.

7

In the ‘Particulars of Malice and Lack of Absence of Reasonable and Probable Cause’, Mr. Allen asserted that Mr. Johnson gave a false statement to the police and that Detective Corporal Pike became aware or should have become aware that this statement was concocted. Further, that Detective Corporal Pike thereafter acted without any due regard to his responsibilities and obligations as a police officer and continued with the prosecution of the Claimant. He also stated that Detective Corporal Pike failed to investigate or properly investigate the complaint and/or failed to perform his investigation to the standard required of an investigating officer. He failed to interview and collect statements from numerous persons who were with him when the alleged offences were said to have occurred.

8

As a consequence, Mr. Allen pleaded that he was wrongfully imprisoned and deprived of his liberty and suffered injury to his character and reputation, and has suffered considerable mental and physical pain and anguish and has been put to considerable trouble, expense and inconvenience, and has sustained loss and damage.

9

Mr. Allen claimed that he is entitled to Aggravated and/or Exemplary damages, as the conduct of Detective Corporal Pike in maliciously and without reasonable and probable cause depriving him of his liberty for nine days amounted to an abuse of his powers as a police officer and amounted to oppressive, arbitrary and unconstitutional acts. Specifically, that Detective Corporal Pike failed to investigate the allegations of Mr. Johnson, and deprived him of his liberty in a lock up that was dirty, filthy, overcrowded which caused him great distress, discomfort, humiliation and indignity.

THE DEFENCE
10

In the Defence, it was indicated that Mr. Allen was arrested by Corporal Adams after he was identified by Mr. Johnson as one of two men who accosted him with a gun, injured him and stole his gold chain and pendant on the 10 th day of November, 2012. Further, that Mr. Allen was charged after a course of investigations was carried out by Detective Corporal Pike which included obtaining several statements from an eye witness and other individuals and the participation of Mr. Allen in a question and answer session with his Attorney-at-Law. Thereafter, on the 3 rd day of December 2012 he was charged by Detective Corporal Pike and a case file was prepared and submitted within reasonable time of Mr. Allen being charged. Further, that Mr. Allen was brought before the Home Circuit Court the following day and that by virtue of the Bail Act, bail can only be considered and granted by a Judge for the offences charged.

11

It was admitted that on the 14 th day of October, 2014, Mr. Allen was acquitted of the charges after the complainant in the matter advised the Court that he did not wish to proceed and no evidence was offered against Mr. Allen. They also averred that at all material times Detective Corporal Pike was acting in the course of his duties as a police officer. It is denied that Detective Corporal Pike acted maliciously and without reasonable and probable cause. It is denied that the Claimant, Mr. Allen was maliciously prosecuted and falsely imprisoned. The “Particulars of Special Damages” was neither admitted nor denied and the “Particulars of Aggravated and or Exemplary Damages” was denied. They also denied liability for any damages.

PRELIMINARY POINT
12

Before the commencement of the trial a preliminary point was taken. This had to do with whether or not to allow the Second Defendant to rely on a ‘Notice of Intention to Tender Documents into Evidence’ which was filed some eighteen days before the trial and for which there was no proof of service on the Claimant or his Attorney-at-Law. Counsel for the Claimant indicated that up to the date of trial he had not been served with the Notice. Despite that, Counsel for the Second Defendant, Ms. Hunter argued that the Court had a discretion to permit the Second Defendant to rely on the evidence contained in the documents which were the subject of this Notice. She relied on the provisions of Part 29.1 of the Civil Procedure Rules (CPR).

13

Ms. Hunter sought to buttress her argument by relying on the authorities of National Water Commission v VRL Operators Limited et al [2016] JMCA Civ. 19 and Sean Greaves v Sean Greaves and Calvin Chung [2020] JMSC Civ.118. She also sought in aid the overriding objective of the CPR to deal with cases justly, expeditiously and fairly and argued that it would do greater justice if the Court allowed the Second Defendant to rely on this evidence. Counsel argued that if the Court were to exclude these documents, the exclusion would do more prejudice, as they are relevant.

14

Ms. Hunter contended that the documents, which are the subject of the ‘Notice of Intention to Tender Documents into Evidence’ were previously disclosed in the ‘List of Documents’. Further, the fact that the documents are public documents, the usual requirements were not necessary.

15

Counsel for the Claimant, Mr. Irving resisted this application by simply pointing out that the provisions of section 31E (2) of the Evidence Act, make it compulsory for the Second Defendant to give notice to the Claimant's Attorney-at-Law at least twenty-one days before the hearing and that the Second Defendant having failed to give any notice should not be allowed to rely on the documents contained in the said Notice. Mr. Irving submitted that regardless of whether or not the documents are public documents, the usual notice provisions would still apply.

16

The Court considered the provisions of Part 29.1 of the CPR, which provides:

  • 29.1(1) The court may control the evidence to be given at any trial or hearing by giving appropriate directions as to—

    • (a) the issues on which it requires evidence;

    • (b) the nature of the evidence which it requires to decide those issues;...

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