Crosfield (John) v Attorney General of Jamaica v Corporal Ethel Hamilton

• Jurisdiction: Jamaica
• Judge: CORAM: MORRISON, J (Ag.)
• Judgment Date: 10 September 2009
• Judgment citation (vLex): [2009] 9 JJC 1001
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. CL E 219 OF 2001
• Date: 10 September 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. CL E 219 OF 2001

BETWEEN

JOHN CROSFIELD

CLAIMANT

AND

THE ATTORNEY GENERAL OF JAMAICA

1 ^ST DEFENDANT

AND

CORPORAL ETHEL HAMILTON

2 ^ND DEFENDANT

DAMAGES - False imprisonment - Malicious prosecution - Aggravated and exemplary damages - Interest and costs

CORAM: MORRISON, J (Ag.)

1 The vexata quaestio is whether the circumstances of the arrest of the Claimant by the second defendant can be justified under the aegis of the Constabulary Force Act. Under section 13 thereof, the second defendant claims to have arrested and charged the Claimant. The Act, so called hereinafter, states in part: "The duties of the police under this Act shall be to... detect crime, apprehend or summon before a justice, persons found committing any offence or whom they may reasonably suspect of having committed any offence..." Thus, the police can avail themselves of the defence of legal justification.

2 Following the decision in Peter Fleming v Det. Cpl. Myers and The Attorney General (1989) 26 JLR p. 525 and quoting therefrom, "the onus of proving the absence of legal justification would be on the appellant but once he showed that the period of detention was unduly lengthy an evidential burden was cast on or shifted to the defendant to show that the period (of detention) was reasonable".

3 Again, under section 33 of the Act, "Every action to be brought against any Constable for any act done by him in the execution of his office, shall be an action on the case as for a tort; and in the declaration it shall be expressly alleged that such an act was done either maliciously or without reasonable or probable cause; and if at the trial of any such action the Plaintiff shall fail to prove such allegation he shall be nonsuited or a verdict shall be given for the defendant."

4 In this respect the Judgment in the Peter Fleming case, supra, is instructive. In part (iv) of their ratio decedendi, Carey, P (Ag) as he then was, Forte and Morgan, JJA, expressed themselves in this fashion: "by virtue of SS. 33 of the Constabulary Force Act, in order to succeed in an action for malicious prosecution the appellant must prove that the respondent acted either maliciously, or without reasonable or probable cause. Malice covers not only spite or ill will but also other motive other than a desire to bring a criminal to justice."

5 Now, it is trite law that in civil proceedings the standard of proof is on a balance of probabilities or, to put it another way, which of the versions of the event as between the Claimant and the defendants, is more likely than not.

6 As already shown, the Claimant bears the burden of proof in respect of the charges of false imprisonment and for malicious prosecution.

7 For the tort of false imprisonment to triumph it must be shown that the Claimant was detained against his will without legal justification. The legal justification may be pursuant to a valid warrant of arrest or where by statutory powers a police officer is given a power of arrest in circumstances where he honestly and on reasonable grounds believes a crime has been committed.

8 In relation to the action for malicious prosecution the Claimant to succeed must prove the prosecution by the Defendant of a criminal charge against the Claimant before a tribunal into whose proceedings the criminal Courts are competent to inquire; that the proceedings complained of terminated in the Plaintiff's favour; that the defendant instituted or carried on the proceeding maliciously; that there was an absence of reasonable and probable cause for the proceedings; and, that the Plaintiff has suffered damage: see Halsbury Laws of England, 4 ^th Edition; paragraph 134.

9 The Evidence

10 John Cms field

11 At time of incident he was employed to Environmental Security Company Limited. His avocation was as a Disc Jockey. His stage name at the time was 'Red Danger.' He produced Jingles for Jamaica Aid Campaign and appeared on a video. However, this was after the criminal case that was brought against him by Inspector Ethel Halliman in the Half Way Tree Resident Magistrate Criminal Court, was dismissed.

12 Essentially, he was unarmed at time of the incident. In fact he was so employed as an unarmed guard. He neither had gun, dog nor baton.

13 On May 2, 1996 at 11.00pm he along with another Security Guard were on duty. He was on the 8.00pm to 8.00am shift at the Queens Warehouse property of the Norman Manley International Airport. While there and at about 11.00pm he saw a car come to the said warehouse with four men aboard. Mindful of the men's avowed intention to engage in unlawful activity on the Queens Warehouse compound he sought the assistance of soldiers, then at the Jamaica Defence Force Air Base, (JDF), the Air Base being in close proximity to the warehouse, by going on foot to them. Soldiers accompanied him back to the warehouse, a warehouse that was not properly lit. The car had by this time left the vicinity of the warehouse. Shortly thereafter, the said car returned to the Queens Warehouse compound, resulting in his re-visit to the JDF Air Base in search of assistance. On his return to the Warehouse without the soldiers in tow, he saw (3) men trying to pry open the grill to the Warehouse. One of the three men was now guarding him by the Warehouse. While so being guarded the police car drove up to the Warehouse compound and the miscreants dispersed in various directions on the said Warehouse compound.

14 He was arrested by Inspector Halliman, plainly on her suspicion that he was involved in the break-in of the Warehouse proper. He was taken to the Norman Manley Police Station the said night where he was detained and then taken to Court on the 6 ^th May 1996. Eventually, he was granted bail in July 1996. Subsequently, all charges levied against him were dismissed by the Resident Magistrate Criminal Court.

15 Ethel Hamilton

16 She went to the Warehouse pursuant to a telephone call from the JDF Air Base Presumably from Sgt Garfield Coley of the JDF on...