Denese Keane-Madden v Attorney General of Jamaica and Corporal T Webster-Lawrence

JurisdictionJamaica
CourtSupreme Court
JudgeEdwards J
Judgment Date14 February 2014
Neutral Citation[2014] JMSC Civ 23
Docket NumberCLAIM NO. HCV O666/2012
Date14 February 2014

[2014] JMSC Civ 23

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. HCV O666/2012

Between
Denese Keane-Madden
Claimant
and
The Attorney General of Jamaica
1st Defendant

and

Corporal T. Webster-Lawrence
2nd Defendant

Mr. Michael Lorne and Ms. Susan Dodd for the Claimant

Ms. Tamara Dickens instructed by the Director of State Proceedings for the Defendants

ASSESSMENT OF DAMAGES — FALSE IMPRISONMENT — MALICIOUS PROSECUTION — WHETHER BAD CHARACTER A MITIGATING FACTOR IN THE AWARD OF DAMAGES — EXEMPLARY DAMAGES — AGGRAVATED DAMAGES-VINDICATORY DAMAGES.

Edwards J
Background
1

On the 17 th day of September 2011, the Claimant, Denise Keane-Madden, arrived at the Norman Manley International Airport, after a short visit to Trinidad. Upon entry to the custom hall she was approached and questioned by the 2 nd Defendant. The 2 nd Defendant is a woman detective corporal of police attached to the Transnational Crimes and Narcotics Division. After questioning the Claimant, the 2 nd Defendant then conducted a search of her luggage. The search revealed, amongst other items, a sealed bottle of downy fabric softener (the downy) inside the Claimant's luggage. During questioning, she revealed that she had purchased the bottle of downy for her husband whilst in Trinidad. The 2 nd Defendant conducted two preliminary tests on the contents of the bottle. From the results of the tests she formed the view that the bottle may contain cocaine. The Claimant was so informed and taken into custody. The 2 nd Defendant also caused the bottle of downy to be sniffed by the canine narcotic sniffer dog which examined the bottle and sat. This was, apparently, a signal for the presence of cocaine in the bottle.

2

The bottle was taken to the government forensic lab for testing and again preliminary tests suggested the presence of cocaine in the downy. On the 21 st day of September 2011, the claimant was charged for the offences of possession of cocaine, dealing in cocaine and importing cocaine. She was discharged by the court on 19 th day of December 2011, after the forensic report showed that the analysis done on the bottle of downy was negative for the presence of cocaine. She spent 94 days in custody without bail. It is this turn of events that caused the Claimant to file this action. The Claimant had two previous convictions on drug related charges, first in 2009 for cannabis and then in 2011 for cocaine.

The Claim
3

The Claimant filed a claim in the Supreme Court for False Imprisonment and Malicious Prosecution against the Attorney General of Jamaica as 1 st Defendant and Corporal T. Webster Lawrence, 2 nd Defendant. The 1 st Defendant admitted liability for Malicious Prosecution and the matter proceeded to a contested assessment of damages.

4

The Claimant sought the following in damages:

1.

Special damages

$ 570,00000

2.

Damages for False Imprisonment

$19,928,00000

3.

Damages for Malicious Prosecution

$ 2,500,00000

4.

Exemplary Damages

$ 2,500,00000

5.

Aggravated Damages

$ 2,500,00000

6.

Vindicatory Damages

$ 1,000,00000

TOTAL

$ 28,998,00000

Special Damages
5

Counsel for the Claimant submitted that as a self-employed clothing vendor she often earned an average of Five Thousand Dollars ($5,000.00) per day from sales and should be awarded damages for loss of earnings at that rate for 94 days, totalling Four hundred and Seventy Thousand Dollars ($470,000.00). At paragraph 40 of her witness statement, the Claimant averred that as a result of her incarceration she lost her business. No further details were given. In amplifying that statement, she claimed that her loss was in the loss of sale of stock of clothing, kitchen items, sheets and men's shoes. She said that she travelled back and forth to Curacao for stock but that during her incarceration she was unable to do so.

6

She claimed that she would make purchases at the free zone, buying in bulk with other vendors, then sharing the stock. This she did sometimes twice per week, sometime every two weeks. She would then sell wholesale and retail. She said her weekly income was good, as on a good week she would earn twenty-five thousand dollars ($25,000.00) but on a bad week she would earn twenty thousand dollars ($20,000.00). She admitted that this would not be all pure profit as there would be expenses. Her profit would be between fifteen thousand dollars ($15,000.00) and nine thousand dollars ($9,000.00).

7

She gave evidence that whilst she was incarcerated she had stock. She did manage to sell some stock with the aid of her husband. However, she was only able to sell the stock she had as she was unable to travel during her incarceration. She also claimed a return of her legal fees resulting from her prosecution. She claimed to have paid thirty thousand dollars ($30,000.00) to her attorney but her husband had the receipts. No receipts were produced to the court and her husband was not called as a witness.

8

The Claimant was unable to prove these claims to the satisfaction of the court. The evidence showed that her husband and herself had been incarcerated in 2011 for drug related convictions; she for a period of nine months. During that period neither of them could travel to make purchases. During those periods no trading took place. It was after being released from prison on the second occasion that she immediately went to Trinidad. Her husband had been released before her, having received 7 months. No evidence was given that he had travelled and purchased stock prior to her sentence coming to an end. Although she was a vendor, this trip to Trinidad was not a buying trip and she admitted that she did not go to shop but to ‘cool out’.

9

She claimed to have had goods at the time of her arrest by the 2 nd Defendant but her husband who had to be visiting her was unable to carry on the business and therefore she suffered loss. Her evidence as to her volume of stock at the time of incarceration; when it was that she last travelled or how often and her sales was sparse and inconclusive. She offered no assistance to the court to make a determination as to her loss of earnings, if any. Not one receipt for the purchase of stock was tendered to the court. There was no stock book and no sales book as one would expect to find in vending on this scale.

10

I am mindful that a claimant must prove loss. I am also mindful that in the informal sector it may not always be possible to provide proof of earnings. However, no Claimant should be allowed to make mere assertions and throw figures at the court without evidence in support. In this particular case, the business carried on by the Claimant, as described by her, suggests trade at a level where if it took place at all, she ought to be in a position to provide some evidence of it. This she failed to do. In the case of her attorney's fees resulting from her arrest and imprisonment, it is expected that some documentation of those payments would be presented to the court in one form or the other. Even though the court recognises the Claimant's right to recover such costs, she cannot not do so without proof of it.

Damages for False Imprisonment
11

Counsel for the Claimant submitted that she was falsely imprisoned and denied her liberty for 94 days from the 17 th day of September 2011 to the 19 th day of December 2011 and should be awarded damages of Nineteen Million, Nine Hundred and Twenty-Eight Dollars ($19,928,000.00). Counsel relied on the authority of The Attorney General v Glenville Murphy 2010 JMCA Civ. 50, where Mr. Murphy was awarded One Hundred and Eighty Thousand Dollars ($180,000.00) for false imprisonment for one day. He submitted that using the current consumer price index (CPI) the figure awarded in Murphy was equivalent to Two Hundred and Twelve Thousand Dollars ($212,000.00) per day. Counsel for the Defendants submitted that the 2 nd Defendant acted reasonably based on the tests she conducted and the preliminary results she obtained from the forensic laboratory.

12

The duty of the police is encapsulated in section 13 of the Constabulary Force Act. Section 13 authorises the police to keep watch by night and day, preserve the peace, detect crime, apprehend or summon before a Justice, persons found committing any offence or those they reasonably suspect of having committed any offence. They are not however, mandated to carry out these duties without lawful justification. The suspicion must be reasonable and the arrest must be justified. See Harris J.A. in Murphy at paragraph 8.

13

False imprisonment arises where a person is 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 power of arrest in circumstances where he honestly and on reasonable grounds believed a crime had been committed. However, the police have a duty to bring the party before the court within a reasonable time. It is possible for there to be a lawful arrest but the claimant is later found to be innocent and released before taken to court. In such a case, where the period of detention is reasonable, then no liability will lie. Where the period of detention is unreasonable, it may constitute a tort. See the reasoning of the Court of Appeal in Peter Flemmings v Det. Cpl. Myers et al, [1985] 26 JLR 525. In Murphy the court upheld the view that the test of reasonableness in section 13 is both objective and subjective in its element. There must not only be a suspicion in the mind of the arresting officer but there must be reasonable grounds for forming such a suspicion.

14

The Claimant admitted in cross examination that the 2 nd Defendant approached her and asked for a search of her bag. She admitted that the...

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6 cases
  • Attorney General of Jamaica v Clayon Tyndale
    • Jamaica
    • Court of Appeal
    • 20 November 2020
    ...admittance to bail. Counsel cited the cases of Denise Keane-Madden v The Attorney General of Jamaica and Corporal T Webster-Lawrence [2014] JMSC Civ 23, and John Crossfield v The Attorney General of Jamaica and Corporal Ethel Hamilton (unreported), Supreme Court, Jamaica, Claim No CL E 219 ......
  • Ceon Allen v Percival Johnson
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    ...Claimant before the Court, she also relied on Denese Keane-Madden v The Attorney General of Jamaica and Corporal T. Webster-Lawrence [2014] JMSC Civ. 23, which addresses the circumstances in bringing a person to 59 She submitted further that in order to prove False Imprisonment, the Claiman......
  • Richard Morrison v The Minister of Justice
    • Jamaica
    • Supreme Court
    • 4 February 2021
    ...that had been the result of an independent judicial action. 22In Diamond v Minter (relied on in Keane Madden v AG of Jamaica and Others [2014] JMSC Civ 23) the plaintiff was arrested and detained by a police officer at a police station and thereafter remanded in custody by a magistrate. Cas......
  • Camelia Mcbean v The Attorney General for Jamaica
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    ...Carol Edwards (as she then was) in the case of Denese Keane-Madden v The Attorney General of Jamaica and Corporal T Webster-Lawrence [2014] JMSC Civ 23. 16 There is nothing before me which would suggest that the police did not conduct their own investigations. The Particulars of Reasonable ......
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