Gary Hemans v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Justice David Batts
• Judgment Date: 31 May 2013
• Neutral Citation: [2013] JMSC CIVIL 75
• Docket Number: CLAIM NO. 2009 HCV 02800
• Court: Supreme Court (Jamaica)
• Date: 31 May 2013

[2013] JMSC CIVIL 75

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Justice David Batts, Q.C

CLAIM NO. 2009 HCV 02800

Between:

Gary Hemans

Claimant

and

The Attorney General of Jamaica

Defendant

Sean Kinghorn instructed by Kinghorn and Kinghorn for Claimant.

Latoya Bernard instructed by the Director of State Proceedings for the Defendant.

Tort — Trespass to the Person — Assault False Imprisonment and Malicious Prosecution — Whether reasonable cause to stop and request search — whether excessive force — damages.

1 In his amended claim filed on the 28 ^th day of November 2011, the Claimant seeks damages, aggravated and exemplary, for Assault, False Imprisonment and Malicious Prosecution. By way of amended defence filed on the 3 ^rd February 2012 the Defendant asserted that the Claimant committed three offences namely uttering indecent language, abusive language and assaulting a police constable. The defence denies that the Claimant was assaulted and avers that the arrest and imprisonment of the Claimant was lawful.

2 The issue concerns events which occurred on the night of the 16 ^th May 2007. The Claimant and his family were exiting the popular Hellshire Beach after he complied with a signal to stop by police officers. What happens next is the subject of conflicting evidence and will be addressed later in this judgment, however what is beyond doubt is that the Claimant was taken into custody charged, bailed and 9 months later the charges were dismissed.

3 Before embarking on an analysis of the evidence I feel constrained to make some observations about the Constitution of Jamaica and its genesis. The Jamaica (Constitution) Order in Council 1962 enacted the Constitution of Jamaica which is to be found in the second Schedule of that Order in Council. Section 13 of the Constitution provides,

13. Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely—

• (a) life, liberty, security of the person, the enjoyment of property and the protection of the law;

• (b) freedom of conscience, of expression and of peaceful assembly and association; and

• (c) respect for his private and family life,

the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions being limitations designed to ensure that the enjoyment of the said right and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.’

4 The relevant part of Section 15,

‘15— No person shall be deprived of his personal liberty save as may in any of the following cases be authorized by law —

(a) — (e)

(f) Upon reasonable suspicion of his having committed or of being about to commit a criminal offence;

(g) — (k)

(2) ….

(3) ….

(4) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that person.

The relevant part of Section 16 of the Constitution provides,

‘16 (1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Jamaica, the right to reside in any part of Jamaica, the right to enter Jamaica and immunity from expulsion from Jamaica.

(2) ……

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision —

(a) — (e).

Section 19 provides,

‘19(1) Except with his own consent, no person shall be subject to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held inconsistent with or in contravention of this section to the extent that the law in question makes provision which is reasonably required. —

• (a) in the interests of defence, public safety, public order, public morality, public health, public revenue town and county planning or the development and utilization of any property in such a manner as to promote the public benefit; or

• (b)

• (c) for the purpose of preventing or detecting crime; or

• (d) for the purpose of protecting the rights or freedoms of other persons.

5 These rights were reenacted in the Charter of Fundamental Rights and Freedoms which was brought into being in 2011, by the Parliament of Jamaica. In the course of this trial no statutory exception to or suspension of these rights was relied upon.

6 The above quoted statements of rights are not trappings which necessarily go with statehood. They are the product of over 400 years of conflict, struggle and sacrifice. Beginning in the 15 ^th century the forefathers of the majority of persons in this nation we now call Jamaica were brought here in chains. They were forcibly taken from the country of their birth. Families were separated and humans enslaved to serve firstly Spanish colonizers and then later English economic interests. The system of enslavement continued until it was abolished by an Imperial Act of the British Parliament in 1833. Abolition came after two maroon wars, hundreds of violent slave revolts and agitation by human rights activists called at the time ‘Abolitionists’. The planters were financially compensated after abolition for the loss of their ‘property.’ The newly freed men received no compensation. In Jamaica civil strife and further rebellion resulted in the free men attaining the right to vote on a basis of Universal Adult Suffrage in 1944. Another 20 years passed before the British lowered the Union Jack and Jamaicans assumed full responsibility for their economic, social, political and international affairs. Central to its position as an independent nation is the Constitution. That document among other things guarantees inalienable rights to Jamaicans. Its ultimate form and content was influenced by developments internationally not least of which were the creation of the United Nations and the Universal Declaration of Human Rights. It is the duty of this Court to protect and uphold the rights guaranteed by the Constitution.

7 I find it necessary to quote the Constitution and to recite it's abbreviated history because of some surprising features of this case. Surprising because when the evidence from the Defendant was completed the matter of a lawful reason to stop and request a search of the Claimant's vehicle had not been addressed. Indeed the attorney at law representing the Crown when asked stated that, reasonable cause was the fact that the police were conducting random searches for guns and drugs. It is the casual attitude by the Defendant and its witnesses to the individual's right to freedom of movement, freedom of the person and freedom from search which has caused me to restate the source of these rights and the history of struggle to attain them. It bears repeating that while lawfully driving his motor vehicle the Claimant was exercising his right to freedom of movement and was entitled to expect that that as well as his other rights would not be interfered with without lawful excuse.

8 The Claimant's Amended Particulars of Claim were further amended at the commencement of the trial to insert the date 7 ^th December 2011 in paragraph 6. By way of Defence the following among other things is stated,

‘3. Save and except that it is admitted that on the 16 ^th May 2007 the Claimant was incarcerated at the Greater Portmore Police Station. Paragraph 27 of the Particulars of Claim is denied. The Defendant contends that the Claimant committed three offences, namely, uttering indecent language, abusive language and assaulting a police constable and in the premises the arrest and imprisonment of the Claimant by the police was lawful Claimant was offered bail on being arrested and charged.

4. Save and except that it is admitted that the Claimant was charged with uttering indecent language, assaulting a police constable and abusive language and the charges were dismissed in the Spanish Town Resident Magistrate's Court for want of prosecution, paragraph 4 of the Particulars of Claim is denied and paragraph 3 of the Defence herein is hereby repeated. In further response the Defendant states that the arresting officer was absent from court sessions on the charges against the Claimant due to no deliberate action of his or any disregard for the Claimant and the Court.’

9 I will now review the evidence to see which of the contending allegations have been supported and to determine which witnesses I accept as truthful.

10 The Claimant Gary Hemans stated that he lived in Linstead, St. Catherine. He is a taxi operator. His witness statement dated 9 ^th November 2011 was allowed to stand as his evidence in chief. He orally corrected paragraph 13 to say he was locked up until 10 minutes to 11 p.m. and not 9 pm as stated in the witness statement. His evidence in chief can be summarised as follows:

• a). He was born on the 27 ^th March 1971

• b) On Wednesday the 16 ^th day of May 2007 at 7:00 p.m. he went to the Hellshire Beach in St. Catherine. With him were his brother, his brother's wife and their 3 children as well as a friend, the Claimant's mother, his niece and a cousin.

• c) His brother was visiting form England with his wife and their 3 children.

• d) The group travelled in 3 motor vehicles with the Claimant driving one of them.

• e) At the beach they ate at...