Eric Gordon v Constable Delroy D Clarke and Others
| Jurisdiction | Jamaica |
| Judge | Morrison P,Sinclair-Haynes JA,P Williams JA (AG) |
| Judgment Date | 08 April 2016 |
| Neutral Citation | JM 2016 CA 34 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 140/2009 |
| Court | Court of Appeal (Jamaica) |
| Date | 08 April 2016 |
[2016] JMCA Civ 17
JAMAICA
IN THE COURT OF APPEAL
The Hon Mr Justice Morrison P
The Hon Mrs Justice Sinclair-Haynes JA
The Hon Miss Justice P Williams JA (AG)
SUPREME COURT CIVIL APPEAL NO 140/2009
Miss Carlene McFarlane and Miss Deneve Barnett instructed by McNeil & McFarlane for the appellant
Miss Marlene Chisholm instructed by the Director of State Proceedings for the respondents
At the very outset of the hearing of this appeal, and virtually right up to the end of the hearing, I was strongly inclined to think that there was no basis for this court to disturb the findings of fact made by the learned trial judge in this case. However, the detailed and insightful analysis of the evidence undertaken by my sister Sinclair-Haynes JA in her admirable judgment has completely persuaded me to the view that this is one of those cases — hopefully rare — in which the trial judge failed to take proper advantage of having seen and heard the witnesses, thus warranting the intervention of this court. In the light of this, there is nothing that I can possibly add to my sister's judgment, save to say that I agree with it and with the outcome she proposes.
This is an appeal from Morrison J's order, dismissing the appellant's claim against Constable Delroy D Clarke, the 1 st respondent, Constable Ricordo S Morgan, the 2 nd respondent, Constable Dionne W Williams, the 3 rd respondent, Inspector Nathan Boreland, the 4 th respondent and the Attorney General, the 5 th respondent, for assault and consequential injury, loss and damage suffered and costs.
On 3 July 2000, the appellant attended the Ocho Rios Police Station consequent on instructions from the police to produce his driver's licence. Whilst at the station, the appellant sustained serious injuries. The appellant complained that he was boxed by the 4 th respondent and severely beaten by the other respondents.
The 1 st , 3 rd and 4 th respondents deny beating the appellant and they assert that the 1 st and 2 nd respondents were not at the station at the material time. They allege that the 4 th respondent's thumb was injured by the appellant when the 4 th respondent attempted to restrain him.
It was the appellant's evidence that on 29 June 2000, a police officer spoke to him about his tyre. The officer told him that the tyre was defective and that he would be charged for same. He however disagreed with the officer. He was instructed by the officer to drive the car to the police station. He refused because he did not want to drive a car which the police officer described as defective. He told the officer to tow it the police station.
On 1 July 2000 he went to the police station and enquired about the officer who had requested his driver's licence. The officer was not at the station and he was told to return on 3 July 2000. He returned on 3 July 2000 as instructed and handed an officer the driver's licence. He asked the officer to whom he had given the driver's licence for his name. The officer took umbrage at being asked his name. The appellant expressed his displeasure at the manner in which he was addressed by the officer by telling him that he ‘should not speak to [him] in that way’.
That statement evoked the ire of another police officer from the CIB area. That officer ‘draped’ him and asked him to whom he was speaking. The appellant told him that he needed to know the name of the police officer with whom he was leaving the driver's licence. The officer whose name he requested also ‘draped’ him and both men inflicted blows to his body. This occurred in the vicinity of the guard room but the men came from the direction of the CIB office. He later discovered that one of the officers was Constable Delroy Clarke. The two officers were also speaking loudly.
During the assault he cried out for help and attempted to get away because he felt that there was no legal justification for them to hold on to him. He called out to the 4 th respondent for help. As the 4 th respondent approached him, the appellant was under the impression that he was coming to assist him but, instead, the 4 th respondent ‘boxed’ his face.
He (the appellant) protested. His protest elicited further violence, as the 4 th respondent pushed him into the guard room and onto a bench. He attempted to get up and the 4 th respondent ‘boxed’ him a second time. The 4 th respondent attempted to strike him a third time but the blow connected with the face of a female officer.
He was charged for using indecent language, arrested and placed into a cell. That incident, he said, occurred at 9:30 am. At about 2:30 pm he was handed documents to sign which appeared to him to be ‘bail bonds’. At that juncture he remonstrated with the police for having beaten him without a cause and insisted on being told the reason he was placed into a cell. His insistence resulted in the officer on duty instructing that he be placed into the holding area which was near to the guard room. He nevertheless continued to enquire the reason he was being held. He received no answer.
Because of his insistence, the 4 th respondent told the other officers to take him to the cell which was to the back of the station. The appellant however went ‘further down’ in the holding area and held onto the grill because he not only wanted to know why he was being held, he feared for his safety. The police held on to him and pulled him but he continued to insist on being told the reason he was placed into the cell as he had ‘done nothing wrong’.
He was then set upon by the 1 st , 2 nd , 3 rd and 4 th respondents who administered blows to his head, right hand, cheek, and other parts of his body. He could not state which blow was administered by which officer because they were all raining blows on him. He consequently lost consciousness. He regained consciousness and felt water being thrown on him. He opened his eye and realized that an officer had thrown dirty water from a cleaning pail on him to revive him.
He lay on the floor for a while and was eventually placed in the back of a service vehicle and was taken to the Saint Ann's Bay Hospital by Constable Dean Patterson on 3 July 2000. He discovered at the hospital that his fingers were broken; there were lacerations to his head, and swelling and tenderness to his face and other parts of his body. His head injury was sutured and he was treated for his injuries.
In support of his injuries, the appellant relied on two medical certificates. The first was obtained from the Saint Ann's Bay Hospital. That certificate reads:
‘a. Laceration of size approximately 5 cm on the left side of forehead
b. Swelling and deformity of right hand
c. Tenderness in right infra-axillary region
d. Tenderness at the right side of cheek
His lacerations were cleaned, sutured and dressed. He was given injection-TT stat dose to prevent tetanus and voltaren injection for pain.
He was requested to return for a review with x-rays. Unfortunately, I cannot certify severity of injuries as he did not show up for review with x-rays.’
The second was obtained from Port Maria Medical Centre where he attended on 5 July 2000. That certificate reported as follows:
‘(1) fractured proximal phalange of Ring finger (r) hand
(2) fractural SMMCP Bone on (r) hand
(3) trauma to head resulting in concussion
Plaster of Paris was applied to (r) hand for 6 weeks and analgesics given for concussion he was given analgesics, granted 28 days home initially.
He was unable to work for 12 weeks. The injuries to (r) hand will result in temporary partial disability.
The injury to head although it is not serious now might have repercussions later.’
The 1 st respondent averred in his witness statement that he was not at the station at the material time as he was on leave. He however could not recall whether he was on one or two days leave. He said that whilst he was on leave he overheard a radio programme in which a man complained of being assaulted at the station. In those circumstances, he said he could not have assaulted the appellant. He was supported by the 3 rd and 4 th respondents whose evidence was that they did not see the 1 st respondent at the station at the material time.
The 2 nd respondent did not participate in the trial. He filed no witness statement and did not attend the trial. The 3 rd and 4 th respondent's evidence was that they were not aware of any Constable Ricordo Morgan being stationed at the Ocho Rios Police Station at that time.
The 3 rd respondent's evidence was that he was aware that on 3 July 2000, the appellant was placed into a cell at the Ocho Rios Police Station. According to him, he was in the station's yard when the appellant was placed into the cell. About 15 minutes after, he heard the prisoners who were in one of the cells, shouting and banging on the gate of the cell and shouting for help to ‘the effect that someone was dying and needed to be taken to the hospital.’
It was his evidence that he observed the appellant lying on the floor of the cell and he appeared to be unconscious. Thinking it was a prank he threw water on him to ascertain whether he was really unconscious. He however got no response. He pulled on the appellant's foot but the appellant still did not respond.
He entered the cell and saw a cut to the back of the appellant's head....
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Carl Barnett v Donovan Pearce
...(and the authorities cited therein) and the more recent decision of this court in Eric Gordon v Constable Delroy D Clarke and Others [2016] JMCA Civ 17. 55 The same authorities have established that the trial judge in his reasoned judgment must set out the facts that he finds proved, and wh......