Conrad Gregory Thompson v Attorney General for Jamaica

• Jurisdiction: Jamaica
• Judge: Coram: F. Williams, J (ag).
• Judgment Date: 31 May 2011
• Judgment citation (vLex): [2011] 5 JJC 3103
• Docket Number: CLAIM NO. HCV 02530 OF 2008
• Court: Supreme Court (Jamaica)
• Date: 31 May 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

CLAIM NO. HCV 02530 OF 2008

BETWEEN

CONRAD GREGORY THOMPSON

CLAIMANT

AND

ATTORNEY GENERAL FOR JAMAICA

DEFENDANT

Ms. Althea McBean, instructed by A. McBean & Company for the claimant.

Ms. M. Chisolm & Ms. A. Whyte, instructed by The Director of State Proceedings for the defendant.

Alleged Assault & Battery by the Police- Gunshot Injuries - Claim for False Imprisonment — Claim for Malicious Prosecution — Exemplary & Aggravated Damages.

Coram: F. Williams, J (ag).

Background

1 This claim, from any perspective, arises from a most unfortunate incident:- (a) if the claimant is to be believed, he was the victim of a most vicious assault at the hands of misguided and overzealous policemen, who shot him several times; delayed taking him to the hospital and prosecuted him on false charges; (b) on the other hand, if the policemen involved are to be believed, the claimant was shot in the lawful execution of police duties and properly prosecuted, and, in the result, the claimant has fabricated this entire case against them.

Summary of the Claimant's Case

2 The claimant was, on the 11 ^th of May, 2003, when the incident occurred, a bus conductor, aged around 21 years. Some time between 5:15 and 5:45 that morning, whilst he was asleep in his one-bedroom, rented apartment at Red Ground District, St. Andrew, he was awakened by the police kicking off his door and entering his apartment. Thereafter, he was thrown from the mattress on which he had been asleep and, as he lay on the floor, was shot several times with a pistol by Det. Sgt. Linval Henry, (who, he testified, reeked of alcohol). He was taken outside and shot again — this time with a rifle, by Det. Cpl. (now Det. Sgt.) Richard Smith. He was wrapped in a blanket and dragged to a police car some distance away.

3 Thereafter, he was taken to the Kingston Public Hospital, but not before the police car in which he was being transported stopped for some time (he says more than half an hour) at the Constant Spring Police Station and then at a bar where the police occupants of the car, had drinks.

4 At the hospital he was discovered to have been alive by a porter and underwent emergency surgery. Whilst in the hospital, he was never under police guard. He was discharged from the hospital and went to stay at his mother's home in, St. Andrew on or about May 23,, 2003.

5 On May 27, 2003, the police went to his mother's home, searched it and detained him, taking him to the Stony Hill Police Station. He was taken there, he was told (and this is admitted in the defence) to face an identification parade in relation to the offence of robbery. On three occasions this identification parade was scheduled to be held, but was not held — supposedly because of the non-attendance of the witness (es) in relation to the robbery.

6 On June 4, 2003 an application pursuant to section 286 of the Judicature (Resident Magistrates) Act was filed and made on his behalf and it was ordered that he be charged or released by June 5, 2003.

7 He was charged on that day with two counts of shooting with intent and illegal possession of firearm with respect to the incident on May 11, 2003; and taken before the High Court Division of the Gun Court on June 6, 2003. He was, on June 12, 2003, able to take up an offer of bail that was made to him on his first court appearance on June 6, 2003.

8 Paragraphs 24 and 25 of his witness statement (which are in pari materia with paragraphs 22 and 23 of his Particulars of Claim) are of sufficient importance to be set out in full:-

"24. During the trial of the said charges, it was revealed from the cross-examination of Detective Corporal Richard Smith that a handwritten statement of his dated June 2, 2003 which was originally submitted to the Court by him and served on my Defence Counsel in 2003, was a different statement and related an inconsistent version of the events in question from the handwritten statement of his dated June 2, 2003 that was on the court file at trial in 2006. The latter statement was not a further statement but intended to be a substitute for the one submitted three (3) years prior.

25. On the — ^th day of March, 2006 I was acquitted of all charges after a no case submission was upheld by the Learned Trial Judge."

9 He claims damages for the gunshot injuries and consequential pain and suffering and loss of amenities; as well as damages for malicious prosecution and also for false imprisonment — he having been falsely imprisoned (he contends) from approximately 5:45 a.m. on May 11, 2003 for some three (3) hours; and from approximately 3:00 p.m. on May 27, 2003 to June 12, 2003 — a total of approximately sixteen (16) days and three (3) hours.

Summary of the Defendant's Case

10 Three witnesses gave evidence on the defendant's behalf:- they were : Detective Sergeant Phillip Dodd who was the investigating officer in the cases brought against the claimant; Detective Sergeant Richard Smith and Detective Sergeant Linval Henry.

11 The evidence of Det. Sgt. Dodd is, for the most part, formal — in that he speaks to receiving the file containing statements concerning the charges brought against the claimant and of later arresting and charging the claimant, based on those statements.

12 The evidence of Det. Sgts. Smith and Henry go more to the substance of the matter. In summary, their evidence is that they went to the claimant's home with a search warrant pursuant to police investigations into cases of armed robbery that had been occurring in the general area.

13 There was an exchange of gunfire between them and occupants of the house in which the claimant lived. A dreadlocked occupant of the house escaped into nearby bushes by firing at the police whilst running away. The claimant was shot and injured and a home-made firearm, which fell from his hand, was seized.

14 A request was made for the claimant to have been placed under police guard; however, no one knows why this request was not complied with. It was made of an inspector of police who was not called to give evidence.

15 The claimant was put before the court on the charge of shooting with intent at the police. He was acquitted of all charges on a no-case submission. However, they maintain that the claimant was injured in a shoot-out with the police on the day in question and a firearm recovered.

16 At paragraph 10 of the defence, the defendant admits in large part what the claimant contends in paragraphs 24 and 25 of his witness statement (and paragraphs 22 and 23 of his Particulars of Claim), concerning the switching of a statement on the file relating to the shooting charges. Paragraph 10 of the defence reads:-

"10. Save that it is denied that the latter statement was intended to be a substitute fro (sic) the one submitted three years earlier, Paragraph 22 of the Particulars of Claim is admitted".

17 This paragraph is most instructive, as, although it denies that the second statement was meant to be a replacement for the first, it does not deny what; perhaps, is the most important part of the claimant's contention about the second statement, which is that it:

"... was a different statement and related an inconsistent version of the events in question..."

Issues for Resolution

18 The central issue in this case is that of credibility of the witnesses. Is the claimant to be believed; or are the witnesses for the defendant, on the other hand, more credible? And, at the end of the day, if the claimant's account of the incident and subsequent events is found to be more credible on a balance of probabilities, is there sufficient evidence to substantiate his monetary claims?

The No-case Submission

19 The success of the no-case submission is one matter that is worthy of some consideration. As is well known, such a submission is usually based either on Lord Parker's Practice Direction [1962] 1 All E.R, 448; or the ruling in R v Galbraith (1981) 73 Cr App Rep, 124. In Galbraith , the English Court of Appeal (at page 127) gave guidance on how the question of a no-case submission should be approached as follows:-

"(1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where...