Greg Martin v Det. Sgt. Halliman and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: SYKES J
• Judgment Date: 19 September 2011
• Judgment citation (vLex): [2011] 9 JJC 1901
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2007 HCV 01096
• Date: 19 September 2011

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2007 HCV 01096

BETWEEN

GREG MARTIN

CLAIMANT

AND

DET. SGT. HALLIMAN

FIRST DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

SECOND DEFENDANT

IN OPEN COURT

Sean Kinghorn and Dale Staple instructed by Kinghorn and Kinghorn for the claimant

Marlene Chisholm and Garcia Kelly instructed by the Director of State Proceedings for both defendants

FALSE IMPRISONMENT - MALICIOUS PROSECUTION - ASSAULT AND BATTERY - VINDICATORY DAMAGES - EXEMPLARY DAMAGES - AGGRAVATED DAMAGES

SYKES J

1 [1] On November 3, 2002, at the Norman Manley International Airport, Mr. Greg Martin, a thirty three year old barber, who was bound for Heathrow, London, was removed from a line of passengers, by Detective Inspector Ethel Halliman-Watson, who was a Sergeant at the material time. He was on his way to visit his father in the United Kingdom. The Detective Inspector asked him to give a urine sample which, when tested, is said to have returned a positive test for cocaine. Thereafter, Mr. Martin was taken to the Kingston Public Hospital (“KPH”) where he was handcuffed to a bed and given daily doses of laxatives from November 4 to November 12, 2002. Eventually, on November 18, 2002 he was charged with the offence of possession of cocaine, dealing in cocaine, attempting to export cocaine and conspiracy to export cocaine from Jamaica, despite the fact that no cocaine was ever recovered. On April 15, 2004 verdicts of acquittal were entered on the first three charges. More accurately, the prosecution case collapsed well before it got to the end. A “no order” was made in respect of the conspiracy charge on June 3, 2004. Mr. Martin has now brought a claim asking for damages for false imprisonment, malicious prosecution and assault and battery. He is also seeking aggravated, exemplary and vindicatory damages.

The EMIT Machine

2 [2] This urine sample given by Mr. Martin was analysed by the police officer with the aid of an EMIT machine. EMIT is the acronym for Electro Magnetic Imaging Technology. According to the defendants, once there is a positive reading, then it is a basis for saying that the person from whom the sample was taken has ingested cocaine. This was the case theory of the defendants at the end of their examination in chief. However, under cross examination the theory underwent modification. It turned out that a positive test meant either that Mr. Martin was cocaine user or he was carrying cocaine in his body at the time the test was done. It was in these circumstances that Mr. Martin came under suspicion for using his body to transport cocaine from Jamaica to the United Kingdom.

3 [3] The evidence from the Detective Inspector is that she and other police officers were trained in the use and care of the EMIT machine. It was specifically designed to detect cocaine. The machine operates in this way. The machine has to be calibrated at least once every twenty four hours. If this is not done then if an analysis is sought from it, the machine indicates that the result is invalid. The officer indicated that each night, at the end of the day's operation, the machine is switched off. On the following morning, the machine is turned on and at the same time the two reagents used to test urine samples are taken from the refrigerator. The machine and the reagents are allowed to stand for half an hour at room temperature. At the end of half an hour, the reagents are poured into their respective containers and placed into the machine. When this is done, a button marked “calibration button” is pressed. This activates the internal mechanism of the machine which begins the process of calibration. A bit of paper is produced by the machine. On this paper are three significant markers. These are negative, cut off and positive. These markers have numerical values. This is the significance of the markers: any urine analysis that produces a value between the lowest negative value and cut off marker is regarded as a negative reading which indicates that the suspect did not ingest cocaine. If the reading is between the cut off value and the highest positive value, then that is interpreted that the person may have ingested cocaine.

4 [4] In answer to the court, the officer indicated that the actual numerical values are not constant from day to day. For example, if on June 1 the lowest negative value was 100, when the machine is calibrated on June 2, the lowest negative value may be 120. The cut off marker would be higher on June 2 than it was on June 1. The whole range would shift upwards. What this meant, according to the officer, was that there would be an increase in the numerical value of the cut off marker and the highest value would be higher on June 2 than it was on June 1. The officer said that, in her experience, the movement in values was always upward and never downwards. In practical terms, this meant, based on the express testimony of Detective Inspector, that on June 1 there may be a positive reading but on June 2, urine with the identical chemical composition may be shown to be negative because what was once in the positive range on June 1 would now be in the negative range on June 2 as a result of the upward shift in values of the bands. If this testimony is correct, then obviously, any positive reading is an indicator of the possible presence of cocaine in the stomach of the suspect but it is not a very strong indicator.

At KPH and the medical evidence

5 [5] Mr. Martin was taken to the Kingston Public Hospital (“KPH”) where he was x-rayed by the medical staff there. The defendants say that opaque objects were seen in the x-ray of Mr. Martin's stomach. There is no evidence that the x-ray enabled anyone to distinguish between cocaine packets and a recently consumed meal. All this was taking place either just before midnight on November 3 or the early hours of November 4, 2002. Mr. Martin was eventually assigned a bed on Ward 2A. He was handcuffed at the airport and other than when he was being attended to by the medical staff at KPH, Mr. Martin was in handcuffs. At KPH, he was handcuffed to the bed to which he was assigned. Mr. Martin was under police guard from his arrival at KPH until his discharge on November 12.

6 [6] Dr. Basil Babolal, a medical doctor, attached to the KPH testified on behalf of the defendants. He said that he viewed the docket of Mr. Martin. He also reviewed Mr. Martin's charts including the x-ray film, treatment charts and nurses notes. The doctor testified that the first dose of magnesium sulphate, a laxative, was given to Mr. Martin on November 4, 2002 at 1:00 pm and then again at 10:00 pm.

7 [7] Dr. Babolal attended upon Mr. Martin on November 5. According to the doctor there was no report of any bowel movement on the part of Mr. Martin despite the administration of three dosages of magnesium sulphate, on November 5, at 6:00 am, 2:00 pm and 10:00 pm. Apparently, the magnesium sulphate was unable to accomplish the desired result. Dr. Babolal ordered that liquid paraffin be given three times daily.

8 [8] Before going on, it is important to note that up to November 5 the doctor reports that there was no report of bowel movement. The court understood that he meant no report from Mr. Martin or indeed the medical staff. By contrast, if the Detective Inspector is correct, then there was, at the very least, evidence of bowel movement having regard to her evidence on what she saw when she arrived at the hospital on the afternoon of November 4. There is no evidence that the Detective Inspector spoke to the medical staff about her observations or even enquired of them whether Mr. Martin had had a bowel movement. In addition, the Detective Inspector stated that she did not send any of the clothes or bed clothes which she said contained evidence of bowel movement to the Forensic Laboratory for examination to see if traces of cocaine were present.

9 [9] On November 7, the x-ray was repeated. Dr. Babolal reports that Mr. Martin indicated that he did not have any bowel movement. This, apparently, caused the doctor to do a rectal examination of Mr. Martin. This examination revealed a hard non-compressible mobile mass. Dr. Babolal did not remove it. In cross examination, the doctor indicated that he could move his finger around the mass but decided against removal because it might be traumatic to the patient. More laxative was recommended. Mr. Martin was given paraffin three times on November 7. Significantly, the result of the November 7 x-ray was not stated in evidence.

10 [10] The cocaine hunt continued on November 8, 9, 10 and 11. On November 8, Mr. Martin was treated twice with magnesium sulphate and paraffin. November 9 saw two more administrations of magnesium sulphate. November 10 saw one dose of magnesium sulphate. According to the doctor, there were no reports of bowel movement on the part of Mr. Martin. On November 11, the x-ray was repeated. He was finally discharged on November 12 - thirteen administrations of laxative later - into the custody of the police. Again, there was no evidence of the result of the November 11 x-ray.

11 [11] The doctor testified that in the normal course of events one would expect a bowel movement within four hours of the administration of a laxative. He also said that he would expect that any person administered laxatives would expel any substance from their body, by the latest, three days after the laxative was administered.

12 [12] On being discharged on November 12, Mr. Martin was taken by the Detective Inspector to a police station on the basis that checks were being made to see if his passport was genuine. The passport turned out to be genuine. He was kept in custody until November 18 when charges under the Dangerous Drugs Act were laid against him.

Reasonable suspicion

13 [13] The police officer indicated that Mr. Martin's urine sample returned a...