Henry v Attorney General of Jamaica et Al

• Jurisdiction: Jamaica
• Court: Supreme Court (Jamaica)
• Judge: Panton, J.
• Judgment Date: 17 May 1993
• Docket Number: H 221 of 1985
• Date: 17 May 1993

Supreme Court

Panton, J.

H 221 of 1985

Henry

and

Attorney General of Jamaica et al

Appearances:

Winston Spaulding Q.C., Norman Wright and Sonia Mitchell instructed by Peter Goldson of Myers, Fletcher & Gordon for the plaintiff.

Douglas Leys and Frank Williams instructed by The Director of State Proceedings for the defendants.

Damages - Malicious prosecution — False imprisonment — Bail — Drug smuggling — Loss of self esteem — Damage to plaintiff's reputation and health — Award for arrest and malicious prosecution of plaintiff — Aggravated damages awarded for second arrest — Award for general and specific damages.

Panton, J.

1 The plaintiff is seeking damages for malicious prosecution and false imprisonment arising out of an incident which occurred along the Ewarton to Linstead main road in the parish of Saint Catherine on the 26th July, 1985. The statement of claim indicates that the plaintiff was arrested and charged in connection with a small quantity of ganja in a pouch in his car.

2 On the 28th August, 1985, the learned resident magistrate for the parish of Saint Catherine dismissed the charge without calling on the plaintiff to state his defence.

3 The plaintiff claims that the actions of the defendants have caused his reputation to suffer and that he has been damaged professionally and otherwise. The injury that he has suffered includes, he alleges emotional and physical injury to his health, damage to his reputation in the eyes of well-thinking people, and loss of business and earnings in the United States of America and in Jamaica, particularly as an attorney-at law.

4 He is seeking special damages amounting to $6,100.00 and general as well as aggravated damages.

5 A defence was filed. That however is no longer a material consideration as the defence consented to judgment being entered in the plaintiff's favour. As a result of the entry of that judgment the matter came before me for the damages to be assessed.

6 In order to assess the damages to which the plaintiff is entitled, it is necessary to ascertain the factual base on which he relies. It is surprising that although there has been agreement between the plaintiff and the defence as to the entry of judgment in the plaintiff's favour, there has been no agreement between them as to the facts which gave rise to the malicious prosecution and false imprisonment. The defence called two witnesses and their evidence and behaviour clearly indicated a wish to resile from the judgment. That, too, surprised me. The evidence of the plaintiff was in sharp conflict with that of the two defendants who testified. The conflict was in relation to important areas of the case. The defendants even contradicted themselves Their evidence was in conflict between them as also with the evidence they had given before the learned resident magistrate who had dismissed the plaintiff without calling on him to state his defence. At the hearing before me, the second defendant went so far as to say that the plaintiff had tried to induce him, apparently corruptly, not to prefer charges against him. This was the first time that this accusation was being made. It appeared to have been news' to the attorney-at-law for the defence.

7 I regard the plaintiff's evidence as the only reliable account on which I can base the award. He spoke of being ordered out of his car by a policeman in plain clothes, and of being accused of drug smuggling. The third defendant removed a silver tyre pressure gauge from the pocket of the car and opined that it was a chalice. Up to this point, it may be said that apart from their slanderous expressions, the police were merely making a nuisance of themselves. The situation changed when they saw and opened the two pouches that were on the backseat of the car. A parcel containing ganja was found in the pouch which belonged to the plaintiff's companion who was, incidentally, his nephew. When the police asked them what it was, no one answered; there was a similar lack of response when they ware asked whose it was. At this point, the second defendant gave instructions for both men to be arrested. The plaintiff identified himself, his car keys were taken and along with his nephew he was placed in a jeep and taken to the Linstead Police Station.

8 At the station they were kept in a cage for approximately an hour. The third defendant arrived of the station with the offending pouch and parcel. He inquired as to whose pouch it was, whereupon the plaintiff's nephew said it was his, and the plaintiff said it did not belong to him the plaintiff. Notwithstanding the admission by the plaintiff's nephew, the third defendant proceeded to arrest both men. He allowed them bail and advised them of the date for attendance at court.

9 The plaintiff resumed his journey to Kingston. As fate would have it, he came upon the said policeman (excluding the third defendant) at another road block. The procedure of ordering him out of his car was repeated. He complied. The second defendant inquired of him as to who had bailed them. When he was told that the plaintiff and his nephew had been given their own bail, he took the bonds from them and gave them to another policeman. The plaintiff and his nephew were re-arrested and eventually replaced in the cage at the Linstead Police Station. They were eventually bailed by a surety...