Hilton Robinson v Aaron King
| Jurisdiction | Jamaica |
| Judge | Erson, K., J. |
| Judgment Date | 31 January 2020 |
| Date | 31 January 2020 |
| Docket Number | CLAIM NO. 2012 HCV 01329 |
| Court | Supreme Court (Jamaica) |
[2020] JMSC Civ 22
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2012 HCV 01329
and
and
and
Georgia Hamilton, Donovan Williams and Dwight Sibbles instructed by Georgia Hamilton and Company for the Claimant
Carla Thomas instructed by the Director of State Proceedings appears for the 2 nd 3 rd and 4 th Defendants
CLAIM FOR DAMAGES FOR MALICIOUS PROSECUTION — WHETHER CLAIMANT WAS MALICIOUSLY PROSECUTED — WHO PROSECUTED THE CLAIMANT — WHETHER 2nd AND 3rd DEFENDANTS CAN PROPERLY BE HELD INDIVIDUALLY LIABLE — WHETHER THE 2nd OR THE 3rd DEFENDANT PROSECUTED THE CLAIMANT WITHOUT ANY REASONABLE AND/OR PROBABLE CAUSE — PROSECUTOR WHO IS A POLICE OFFICER HAVING ACTED ON INSTRUCTION OF CLERK OF COURT — ASSESSMENT OF DAMAGES FOR MALICIOUS PROSECUTION
This claim is against the 2 nd, 3 rd and 4 th defendants for general damages, aggravated and exemplary damages, for false imprisonment and malicious prosecution.
The trial proceeded as between the claimant and the 2 nd, 3 rd and 4 th defendants only, as judgment had earlier been obtained against the 1 st defendant arising from his default in having defended this claim.
The burden of proof is on the claimant and this claim must, if it is to be proven, be proven on a balance of probabilities.
The claimant's claim against those defendants has arisen from that which he had initially alleged, was his false imprisonment and malicious prosecution, with respect to his arrest which occurred on April 9, 2011, when he was criminally charged for the offences of illegal possession of a firearm and assault and which charges were terminated in his favour, on June 22, 2011.
Upon the commencement of the trial of this claim, which was presided over by me, lead counsel for the claimant informed this court that the claim for damages for false imprisonment is no longer being pursued against either of the defendants then before the court.
The claimant has alleged, in his amended particulars of claim, that the 2 nd defendant was, at all material times, a woman inspector of the Jamaica Constabulary Force (JCF) and the sub-officer in charge of the Junction Police Station and a servant and/or agent of the Crown.
He has also therein alleged that the 3 rd defendant was, at all material times, a woman constable of the JCFand a servant and/or agent of the Crown assigned to the Junction Police Station and who was under the direction and control of the 2 nd defendant, in the performance of her duties.
The 4 th defendant has therefore been sued, pursuant to the provisions of the Crown Proceedings Act.
Furthermore, it is therein alleged that on or about April 2, 2011, the 1 st defendant wrongfully assaulted and beat the claimant in the vicinity of the 1 st defendant's barbershop, in Junction, St. Elizabeth.
The claimant had reported that, to the police and on April 2, 2011, which was the day that the claimant made that report. The 1 st defendant was arrested, as a consequence of that report.
It has also therein, been alleged that, following reports made by the 1 st defendant at the Junction Police Station, the 2 nd defendant directed the 3 rd defendant and/or the 3 rd defendant, proceeded to charge and arrest the claimant for assault at common law and illegal possession of a firearm. Evidence was given at trial, which is undisputed, that the claimant was also charged with the offence of malicious destruction of property. The relevance of that last-mentioned charge to this claim though, will be addressed in some detail, at a later stage of these reasons.
Accordingly, it is the claimant's allegation as specifically adumbrated in his amended particulars of claim, that he was wrongfully arrested, without any reasonable or probable cause and thereby, falsely imprisoned. The claimant was arrested at the Junction Police Station and was detained there, until he was released on bail, after approximately one hour. It is, in the circumstances, alleged by him, that he was falsely imprisoned for a time period of approximately one hour. He is though, no longer pursuing any claim against the relevant defendants, for present purposes, in that regard.
The claimant has also alleged that, following upon his arrest, he made three (3) appearances at the High Court division of the Gun Court for Jamaica, at Black River and that it was on the last of those three (3) occasions, which was on June 22, 2011, that the claimant was discharged, as the Crown offered no evidence against him, on either charge.
It is also therefore, the claimant's allegation, that he was maliciously prosecuted for the two (2) offences which he had been charged with and which had been unsuccessfully prosecuted against him.
The particulars of the 2 nd and 3 rd defendants' alleged malice and absence of reasonable and probable cause, as alleged by the claimant, are as follows:
‘a. The 2 nd and 3 rd defendant failed and/or refused to make enquiries of divers witnesses whose names and contact details were provided by the claimant; and
b. The 2 nd and 3 rd defendant failed and/or refused to make enquiries of the witness who was identified in the statement of the 1 st defendant; and
c. The 2 nd defendant flatly refused to make enquiries of divers witnesses telling the claimant words to the effect that, ‘I don't need to ask anyone anything, as I know how you business people in Junction stay, unuh quick to draw gun on people.’
In response to this claim, the 2 nd, 3 rd and 4 th defendants have averred that the claimant was actually, not arrested by either the 2 nd or the 3 rd defendant, but rather, that, based upon a report which was made at the Junction Police Station, on April 8, 2011, by the 1 st defendant, to the effect that the claimant had pulled his firearm on the 1 st defendant, the 2 nd and 3 rd defendant asked the claimant to come to the Junction Police Station, which the claimant did, on April 8, 2011.
After he came to the police station, the claimant was allegedly then informed of the report which had been made against him, by the 1 st defendant and he was asked to hand over his firearm, as the matter was being investigated, which the claimant did. The claimant thereafter, left the police station.
The claimant was though, according to the defence of the 2 nd, 3 rd and 4 th defendants, summoned for the two (2) offences that were brought against him – those having been the said offences as earlier referred to. The 2 nd, 3 rd and 4 th defendants have denied that they prosecuted the claimant maliciously and/or without any reasonable or probable cause and moreover, have denied that the claimant was prosecuted at all, by the 2 nd, or the 3 rd defendant.
It has been accepted by the 2 nd, 3 rd and 4 th defendants (hereafter referred to, as, ‘the defendants’), that those charges were dismissed after the Crown offered no evidence against the claimant with respect to either of same and that the same were dismissed, on the date as alleged by the claimant.
The defendants alleged further though, that the claimant only attended court on two (2) occasions and not three (3), as has been alleged by the claimant.
Whilst therefore, there is agreement between the pertinent parties as to the last date when the claimant attended court in relation to the two (2) charges that had been brought against him, neither of the pertinent parties made any averment in their respective statements of case, as to exactly when was the first date when the claimant attended court to answer to the two (2) charges which had been brought against him.
Based upon the defendants' statement of case, the second date when the claimant attended court, was the last of the two (2) dates when he attended court, pertaining to the criminal charges which had been brought against him. It is to be recalled, that that date is June 22, 2011.
In the claimant's statement of case though, he has only averred, as to the dates when he was at court, pertaining to those two (2) charges, the last date of that which he has alleged, were the three (3) dates when he attended court, with respect to the relevant charges.
That lack of detail will be of relevance, if this court concludes that the defendants are liable for malicious prosecution, since, in that circumstance, this court will then have to proceed to assess damages for same. One of the key considerations in that regard, will be, not only the number of appearances made at court, but also, the period of time during which the relevant charge(s) remained pending, against the claimant.
In the case at hand, there is no dispute between the parties, that the claimant was criminally prosecuted. Equally, there is no dispute that those criminal charges were both unsuccessfully brought against him.
The claimant was put, by the defendants, to prove his alleged losses/damage. To my mind, on the evidence which he gave to this court at trial, the claimant has proven that he suffered loss and/or damage, as a consequence of that criminal prosecution which was unsuccessfully pursued against him.
In that regard, it was the claimant's unchallenged evidence, that in relation to the relevant criminal charges, he had hired Mr. Cecil July, as his attorney, to represent him and that he had paid Mr. July, in total, the sum of $654,000.00, with respect to same. The claimant produced at trial and there were accepted as exhibits, receipts for $154,000.00 which the claimant testified that he had paid to Mr. July, in cash. The claimant's testimony was also that he paid Mr. July, an additional aggregate sum of...
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