Gervan Bennett v Sergeant Devon Grant and Attorney General
| Jurisdiction | Jamaica |
| Judge | McDonald J |
| Judgment Date | 16 May 2011 |
| Judgment citation (vLex) | [2011] 5 JJC 1601 |
| Court | Supreme Court (Jamaica) |
| Date | 16 May 2011 |
| Docket Number | CLAIM NO 2007 HCV 02493 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN CIVIL DIVISION
False Imprisonment — Malicious Prosecution — Complaint made to Police Officer — Whether officer acting reasonably in the circumstances
On June 19, 2007 the claimant filed a Claim Form and Particulars of Claim in which he alleged that the 1 st defendant acting as servant and/or agent of the Crown falsely imprisoned him and initiated a malicious prosecution against him. He claims damages for false imprisonment and malicious prosecution, and aggravated and/or exemplary damages with interest and costs.
The Claimant's Evidence
Mr. Bennett testified that although he is a cabinet maker he in fact builds all types of furniture. He made furniture for people in and around his community.
He said that he met Mr. Green, the virtual complainant in the criminal matter through a lady named Judy and that he agreed to build furniture for Mr. Green. In particular, the claimant testified that he agreed to build a queen size bed head, a bed bottom and two night tables for Mr. Green. He said that Mr. Green gave him money and some lumber to build the items commissioned, and that he gave Mr. Green receipts for the money paid.
He said that Mr. Green came to him about building the furniture in January 2005. Mr. Bennett testified that he agreed with Mr. Green a time frame in which to finish the furniture, but he could not remember whether or not it was to be completed in six months.
It is the claimant's evidence that in May 2006 Mr. Green called him about his furniture and he was aware that Mr. Green needed them at that time.
He said Mr. Green came to his house and looked at the furniture.
There is no dispute that the claimant was arrested on May 20, 2006 and that Mr. Green had not received his furniture up to May 20, 2006 when the claimant was arrested.
The claimant said that prior to his arrest, by the 1 st defendant, he spoke to him on the phone. He recounted that during that conversation the 1 st defendant asked him if he was building some furniture for Derrick Green and he responded in the affirmative.
He said that 1 st defendant asked him where his workshop was and he told him to ask Mr. Green to take him there.
He testified that the 1 st defendant identified himself and told him to report to him at the police station. He told the 1 st defendant that he does not really work at the police station. He said Sgt. Gordon told him a lot of expletives.
He denied using expletives to the police officer telling him to come off the phone. The claimant said that on May 20, 2006 the 1 st defendant and twenty police officers came to his house. Sgt. Gordon knocked on the front door, and told him that he had come to lock him up for furniture, he never mentioned anything about a report. He denied that he tired to get away to the back of the premises and was stopped by two police officers.
He said that Sgt. Gordon held unto his shirt and pulled him through the doorway and took him to a minibus.
He said that Sgt. Gordon saw the unfinished furniture while he pulled him from his house doorway when they were passing the workshops to go up to where the mini bus and radio car were parked. He showed Sgt. Green the furniture and said to him ‘see the man furniture them’.
He testified that he had shown Sgt. Gordon a queen sized bed head, a queen sized divan and two bedside tables made out of cedar which was the lumber given to him by Mr. Green. He said further that all that needed to be done was for him to spray them and he had not done so because Mr. Green had asked him not to as he was having differences with his girlfriend at the time.
The claimant said that he walked to the Main Road, his son came and handed him a pair of shoes. He went into the bus and was taken to the Mandeville police station where he was charged for fraudulent conversion.
He was locked up from May 20, 2006 and taken to court on May 24, 2006 for the first time and was last before the court on August 9, 2006.
In relation to the conditions of his detention, the evidence of the claimant is that he cell was about 6 feet by 4 feet. There were 8 of them in the cell which lacked ventilation. The floor was wet with sweat, the heat was unbearable, and the cell smelled very bad like a fowl coop.
He said that on the third night he was in jail, he spoke to a Sergeant about the condition and he took him and put him in the passage, which was sloppy, messy and wet but the ventilation was a little better.
Mr. Bennett testified that Mr. Green came to the Resident Magistrate's Court on at least two occasions and that he was present on the last occasion that the matter was before the court. According to the claimant, on one occasion Mr. Green “chucked” him in his chest. He never told him why he did so, but he knew that he was angry and he agreed that he was angry because he never got his money or furniture back at that time. He was aware at that time that Mr. Green needed the furniture.
Mr. Bennett's evidence in chief is that on May 24, 2006 he was released on his own recognizance. However he admitted in cross-examination that he was offered bail by the court in the sum of $20,000 without a surety.
He said that on August 9, 2006 his lawyer Mr. Adedipe made a no case submission resulting in the charges against him being dropped and in his release. In cross-examination he said that no evidence was led by the crown and that his lawyer had arranged for Mr. Green to go and see the furniture and indicate whether it was satisfactory, that Mr. Green did so and that this was told to the court on the said day. It was suggested to the claimant that what Mr. Adedipe reported to the court was that Mr. Green did not want to proceed anymore, and that a no order was made at his request. The claimant responded that he did not hear that argument and that Mr. Green never spoke to the judge about that.
He claims to have been injured in his character and/or reputation, suffered greatly in mind and to have suffered loss, damages and incurred expense.
The 1 st Defendant's Evidence
Sergeant Gordon's evidence is that a complaint was made to him by one Derrick Green in which Mr. Green alleged that since January 15, 2005, he had given Mr. Bennett monies totalling (in excess) of $29,000 and lumber valued at $8,000 for Mr. Bennett to build certain items of furniture for him.
Mr. Green also informed him that he had been contacting the claimant for some time and he was unable to get the furniture or his money and lumber from the claimant.
Mr. Green contacted Mr. Bennett by cell phone and Sgt. Gordon spoke to him. He told him of the complaint made against him by Mr. Green and invited him to come to the Mandeville Police Station for an interview to discuss the allegations. In response Mr. Bennett told him several expletives and that he was not in any dealings with any police and that he was to come off his phone.
Mr. Green subsequently came to the police station and made a formal report, gave a statement and handed over several receipts showing payments made by him to Mr. Bennett.
After receiving the reports, Sgt. Gordon visited the claimant's premises on two occasions but on both occasions no one was there and the house was locked.
On May 20, 2006, at about 6:00am, Sgt. Gordon went to the claimant's house with three police officers. He called to the claimant and he came out. He told him about the report made by Mr. Green and he showed him some unfinished furniture which the claimant said belonged to Mr. Green.
The claimant was cautioned and informed of the charges at which time he attempted to escape by running towards the back of the property.
His escape was prevented by two of the three other policemen present around there and that is why he came back through the front door.
At the time of his arrest the claimant was not wearing a shirt but he requested time to put one on and was permitted to do so before he was taken to the police station. No force was used in the claimant's apprehension and he was not deprived of wearing his shoes. Once at the Mandeville police station the claimant was charged with fraudulent conversion.
Sgt. Gordon's evidence is that May 20, 2006, the date that the claimant was arrested, was a Saturday and that the next court date was Wednesday May 24, 2006 when the claimant was taken before the court. He explained that court was not held everyday in Mandeville.
It is Sgt. Grant's evidence that when he took the claimant to the station he handed him over to the station guard and had nothing more to do with him until he went to court.
In relation to bail, Sgt. Gordon testified that the claimant could have got bail he had made no objection to the grant of bail and that granting him bail at the station was the purview of the sub-officer-in-charge or Inspector present on that shift.
In examination in chief Sgt. Gordon testified that on May 20, 2006. The claimant was not on crutches at anytime. Sgt. Gordon testified that when he arrived at the claimant's house he knocked on the door. The claimant came to the door, saw him, and locked back the door and tried to escape through the back door of the house.
In cross-examination Sgt. Gordon said that the claimant showed him an unfinished dresser and some pieces of board.
It was suggested to him that he had said something different in his witness statement when he said that he was shown some pieces of unfinished furniture. He testified that he was not saying anything different in the witness stand from what he had said in his statement.
He also said that what was shown to him was nothing of the nature...
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