Fuller v The Attorney General
| Jurisdiction | Jamaica |
| Judge | DOWNER, J.A.,Downer, J.A.,PATTERSON, J.A.,HARRISON, J.A. |
| Judgment Date | 16 October 1998 |
| Neutral Citation | JM 1998 CA 47 |
| Docket Number | Civil Appeal No. 91 of 1995 |
| Court | Court of Appeal (Jamaica) |
| Date | 16 October 1998 |
Court of Appeal
Downer, J.A. Patterson J.A. Harrison, J.A.
Civil Appeal No. 91 of 1995
Earl Witter, Barrington E. Frankson and Jacqueline Cummings instructed by Messrs Gaynair and Fraser, for the appellant.
Mr. Lennox Campbell Senior Assistant Attorney General, Michelle Walker and Susan Reid-Jones instructed by the Director of State Proceedings for the respondent.
constitutional law - Whether in addition to liability for battery and assault, which were admitted, there was also liability for breaches of constitutional rights which warranted compensation by the State to the estate of the deceased — Deceased died while in custody — Court stated that that did not preclude a constitutional remedy.
Why did the events in Cell 3 at the lock-up in the Constant Spring Police Station generate such enormous concern and publicity since 1992? Agana Barrett was found dead after two days of incarceration between October 22 and 24 and that even has given rise to prolonged hearings in the Supreme Court and thereafter in this Court. The issue of law was whether in addition to liability for battery and assault as well as false imprisonment which were admitted there was also liability for breaches of constitutional rights which warranted compensation by the state to the estate of the deceased. The submissions were necessarily wide ranging since they involved an examination of areas of the Constitution that were hitherto unexplored.
In the Supreme Court the assessment by Karl Harrison, J. for damages in respect of liability for tort, pursuant to the Crown Proceedings Act was as follows
On the principle that where the beneficiaries are the same under both the Fatal Accident and Law Reform Acts, the damages recoverable under the Law Reform ( Miscellaneous Provisions) Act should be taken into account in assessing the damages under the Fatal Accidents Act (See Gammel v. Wilson) [1981] 1 All E.R. 578)
Damages are therefore assessed for the plaintiff as follows:
1. Law Reform ( Miscellaneous Provisions) Act
Plaintiff (deceased's mother and sole dependant)
$511,560.00
Loss of Expectation of life
3,000.00
Funeral expenses
15,000.00
Total
$529,260.00
Interest is awarded at 3% of Ninety-three thousand dollars ($93,000.00) being the pre-trial portion from the 24th October, 1992 to July 5, 1995.
Interest is also awarded at 3% on the funeral expenses of Fifteen thousand dollars ($15,000.00) from the date of service of the writ up to today.
2. GENERAL DAMAGES
Assault and Battery
$150,000.00
False Imprisonment
50,000.00
Aggravated Damages
100,000.00
Total
$300,000.00
Costs to the plaintiff to be taxed if not agreed.”
As for the rule referred to by the learned judge stating the relationship between the damages to the dependency and the estate the true rule was stated thus in Gammel v. Wilson at page 578. It reads thus:
“In each case because the award to the estate under the 1934 Act exceeded that under the Fatal Accidents Acts, no award was made in respect of the fatal accident claim, in accordance with the rule that in assessing loss of dependency under the Fatal Accidents Acts the court was required to take into account any benefit accruing to a dependant from the deceased's estate.”
Before advertising to the grounds of appeal it is necessary to recount the events which compelled the Crown to admit liability in tort. Here is how Karl Harrison, J. recounted the evidence:
Shawn Coleman, one of the survivors, testified that several men including the deceased and himself were taken from Grant's Pen Road to Constant Spring Police Station by the police on Thursday the 22nd day of October 1992. After being finger-printed and processed they were placed in different cells at Constant Spring Station. Coleman stated that the deceased, himself and sixteen others were placed in cell number 3. By Friday, one more man was added to their numbers.
Coleman gave a graphic description of conditions which existed in this cell. The cell which was about 8ft. x 7ft. in size was extremely hot due to the congestion. There was very little air available and this was only accessible through small holes in a metal door for the cell. The cell had no windows and they were surrounded by concrete walls. Water dampened the floor and in order to quench thirst, perspiration and water dripping from walls had to be used as no drinking water was made available for them. He also testified that one man had to drink his own urine in order to quench his thirst. After being released from the cell for lunch at 1:00 p.m. on Friday, they were never fed again and were locked up thereafter without further release until Saturday morning.”
Despite this excellent summary it is necessary to refer directly to some aspects of the evidence of Shawn Coleman to demonstrate the agony of Agana from the inception of his arrest. It should also be noted that his imprisonment began from he was arrested and transported with others to Constant Spring.
“After 7:00 we were taken over to station and placed in a little cage where our belts, shoelaces taken from us. Separate building from C.I.B. office. This includes Agana Barrett.
Cage is a little thing like this (witness shows witness stand) but it has mesh at top. It bigger than in here. All 48 of us in there when belts were taken. I could not move freely. Too many people in there. If you lift up foot you cannot put it back down. I could not move hands freely. No space to move. If you put out hand you bounce somebody.
Agana in cage also. Never remain in cage all night. Kept there far about 112 hour. They write down what they take from you. Police was writing.”
Shawn gave a detailed description of the interior of the cell which was as follows:
“Cell was wafted all around. Bunk take up ? of space. There is metal door with bars weld on to metal. Holes in metal about size of 5 cents. Metal is thick sheet weld on to grill itself. No air can get in unless is through the five cents holes. Hales not in line with each other. Metal at front and metal at back. Sheets of metal that holes are in. Front metal has holes and inside metal has holes. Both holes not in line for air to flow freely. Sheet of metal about 3 feet wide and 6 feet high. Wall an top, back and sides Wall made of concrete:”
it was a veritable death trap.
So the false imprisonment continued and finger prints ware taken contrary to the Finger Print Act.
He continued thus:
“After we were put in cell the police close metal door from outside. They close it and lock it. No light was in cell. Dark like mid night in there. It was hot and dark. Thursday night from you enter in there you are hot. I never felt heat like this before.
Door was next opened the Friday morning. Opened about 7:00 to 8:00. Every man was crying about the heat that night. Crying about condition of cell also.
Agana Barrett was also complaining. I saw no one sleeping in cell that night. I remain in same position all night sitting on ground. I could not see Agana but I could hear him. 1 could not see because of darkness. Some sitting on bunk and some by door. Some were standing, place limited.
We were very close. Everybody bouncing on one another. They talk laud saying officer man a faint, we can't take the heat. We want water, we hot, we thirsty, crying out going on Thursday night about 2:00-3:00 in the morning. Beating on door taking place same time. We were all beating the metal on the door. It caused loud sounds. There was no response to these sounds.”
The appalling conditions were aptly described by Shawn Coleman as he continued his evidence as follows:
“After door was closed inside cell was very dark that Friday afternoon. It was not cooler, it got worse now. We were not offered any food from 1:45 p.m. the Friday to 8:00 a.m. the Saturday.”
Referring specifically to Agana, Shawn Coleman continued thus:
“Agana Barren was then in right hand corner of cell. I was an left hand side of cell. I could hear his voice so I knew he was in corner. I hear him say he would give police officer U.S. $10.00 for spoonful of water. He made this statement the Friday night 11:00 going up to 12:00. This is estimate time. This is last thing I heard him say.”
The response of the gaolers has to be emphasised. Here is how Coleman put it:
“All inmates in cell 3 were beating on door with our hands. We beat door with palm of our hands. This caused loud banging on the metal. This go on for almost entire night.
Apart from banging I could hear sounds coming from front of station. I heard domino playing and radio. After banging get louder sound on radio come up high so we could hardly hear tapping of domino anymore. Tapping of domino never stop, I hear it right through the night.
There was no response by anyone to banging on the door. We all cried out officer, inspector, some say they want water and some crying out say ‘officers man faint’.”
Here is how death was described:
“After cell open on Saturday morning I was first to come out. I walk out feeling weak and sweat up. Sixteen of them walk out too. Agana Barrett, Ian Forbes and Vassell Brown never come out. They died. I saw them lying on ground motionless.
Agana was lying on ground without any shirt and motionless. He was lying in water motionless. He was in the right corner. Same corner I saw him when I was on bunk.
When I saw Agana the Thursday morning he looked healthy and sound. On the Friday he was still looking healthy and sound but we were all talking of heat and condition of cell.
Richard Green told police about men lying on the ground. He call police and say ‘officers it look like three man dead, see three men lying on the ground.’ I don't know name of officer. He could have heard when Green...
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