Hubert White v Constable O. O'Connor
| Jurisdiction | Jamaica |
| Judge | Evan Brown J. |
| Judgment Date | 19 January 2018 |
| Neutral Citation | [2018] JMSC CIV 9 |
| Docket Number | CLAIM NO. 2011HCV06602 |
| Court | Supreme Court (Jamaica) |
| Date | 19 January 2018 |
[2018] JMSC CIV. 09
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Evan Brown J.
CLAIM NO. 2011HCV06602
Miss Danielle Archer instructed by Kinghorn and Kinghorn for the claimant
Miss Deidre' Pinnock instructed by the Director of State Proceedings for the defendants
Malicious prosecution — Operating a motor vehicle without a road licence — Whether reasonable and probable cause — Detinue — Motor vehicle impounded up to trial of claim — Vehicle ordered released by Resident Magistrate — Written demand for release of motor vehicle after dismissal of case.
Mr. Hubert White, an electrician by trade, claims damages against the 1 st and 2nd defendants for malicious prosecution and detinue. The 1st defendant was acting in the lawful execution of his duties at the material time, controlling the flow of traffic in the Bog Walk gorge. Since the 1st defendant was lawfully executing his duties as a servant or agent of the Crown, the 2nd defendant was made a party to the claim by virtue of the provisions of the Crown Proceedings Act
Mr. White, the claimant, averred that on the 24th November 2010 he was lawfully driving his Toyota Wish motor car registered 6227 FK, with five passengers onboard, along the Angels main road, St. Catherine, when it was seized by the 1st defendant. The seizure of his motor car came in the wake of his prosecution by the claimant for breaches of the Road Traffic Act. After a number of appearances before the Resident Magistrate's Court for St. Catherine, sitting in Spanish Town, the charges were dismissed for want of prosecution. From the time of his prosecution up until the trial of the claim, Mr. White's motor car remained in the possession of the crown.
On the date of the dismissal of the charges, the 10th October 2011, Mr. White's Attorneys-at-Law wrote to the Commissioner of Police and the Attorney-General demanding the return of the motor vehicle. That demand went unanswered. Mr. White, therefore, claims loss of use (rental of alternate motor vehicle) in the sum of $1,667,500.00 and loss of earnings of $4,100,000.00 for detinue.
In his witness statement, Mr. White said he was on his way to work on a house in Old Harbour, St. Catherine. Travelling with him were four workmen and the girlfriend of one of them, who, he was told, was going to Spanish Town. As previously arranged, he had picked them up in Ocho Rios, St. Ann. Somewhere along the Angels main road he passed two policemen directing traffic. A few chains away he heard a police siren behind him and pulled off the road to allow the vehicle passage. The police vehicle stopped alongside his vehicle. A policemen (said to be Spl. Cpl. Leachman under cross-examination) told Mr. White he had reason to suspect that he was operating his vehicle as a robot (illegal taxi). He was instructed to turn around and follow the police vehicle to the point where he had earlier passed the two policemen.
Reaching there, one (the 1st defendant) asked if he did not realise he was being signalled to stop. He said no. The suspicion of operating an illegal taxi was then repeated. One workman opened his bag, displaying his tools and told the policeman that all were heading to work, except the lady. That workman was shouted down by the policeman.
Mr. White advised his workmen to make their way to work. About three hours later a wrecker arrived and transported his motor vehicle to the pound. Before the vehicle was removed Mr. White was told to take his tools from the trunk of the vehicle. He said he was unable to do so, however, on account of the quantity of tools he had, without alternate transportation. He was then ticketed for operating a motor vehicle without a road licence contrary to section 61 of the Road Traffic Act and no public passenger vehicle insurance, to attend court on the 10th January 2011.
In response to the traffic tickets Mr. White attended court on five occasions. The policeman attended only on Mr. White's third outing. On his fifth appearance the charges were dismissed.
There was a financial impact on Mr. White as a result of the seizing of his motor vehicle and the concomitant loss of the use of his tools. Four “pending contracts” went by the board. That is, two houses in St. Ann owned by Maganadeedle and Charles Benjamin and two houses in St. Catherine, one belonging to Mrs. Hall and the other to Mrs. Burton, were all to be wired. These were oral contracts. He approximated his gross loss to be $4,100,000.00. He also attributed not being able to work for some time to the same two reasons. Additionally, he fell into arrears with the loan which was used to purchase the motor vehicle, being unable to work.
Eventually he was able to purchase some tools. To transport these tools to work he rented a vehicle. He said he had receipts evidencing rental payments totalling $1,667,500.00. Reference was made to seven receipts in his witness statement, dated between 17th December 2010 and 15th January 2013. However, none of those receipts were tendered into evidence.
With reference to the defence filed, Mr. White expressed puzzlement at what could have aroused the suspicion of the policeman, or what reasonable cause he could have had to believe that the passengers were being transported for hire. In that vein, he denied saying to the policeman “mi a electrician and mi just take up a people because mi short on lunch money and mi a run two trip”.
Under cross-examination, Mr. White's attention was drawn to an order made by the Resident Magistrate Court on the 20th April 2011 releasing the motor vehicle to the title holder on a bond of $40,000.00 with a surety, on condition that the relevant fees are paid (see exhibit 1). He admitted being at court on that date but said he was unaware of the order. Furthermore, he never at any time sought to have the vehicle released to him. He went on to say that after the case was dismissed he made enquiries through his lawyer about how he might regain possession of the vehicle. He learnt that the vehicle was being kept at the Lakes Pen Pound.
Mr. White's account of what took place was supported by his witness, Mr. Lambert Miller. When the charge of operating an illegal taxi was levelled at Mr. White, Mr. Miller told the police that they were all workmen heading to a house in Old Harbour. He was told, however, to shut his mouth because it was police business. Mr. Miller confirmed that he and the other workmen left Mr. White at the scene and proceeded to work. He stated that none of the passengers were asked to pay a fare to Mr. White.
When Mr. Miller was cross-examined, he said this was the second time he was meeting the other workmen. Although he did not know their names, he claimed to be able to identify them. He knew the lone female in the vehicle was one of the workmen's girlfriend as that was said when they entered.
The 2nd defendant traversed the averment that the 1st defendant acted unlawfully, maliciously and without reasonable and probable cause in seizing the claimant's motor vehicle and prosecuting him for the breach of the Road Traffic Act. The defence countered that the 1st defendant had reasonable and probable cause for detaining the motor vehicle as an exhibit to further the prosecution of the claimant under the Road Traffic Act. Once the claimant was ticketed, only the court was competent to release the vehicle to the claimant.
The defendant averred that once the court made the order for the release of the motor vehicle, or at the conclusion of the case, the claimant could have collected the vehicle on payment of the fees. The claimant, therefore, by his own choice, failed to retrieve his motor vehicle from the Lakes Pen Pound. Consequently, the claimant is not entitled either to damages for loss of the vehicle or loss of use. In the former case it was always open to him to have the vehicle released once the he paid the fees and, in the latter, he bore the responsibility to mitigate his loss.
The defence called Cons. O'Connor in support of those averments. On the day in question he was dressed in uniform and on mobile traffic duty in the company of Spl. Cpl. Leachman along the Angels main road. Spl. Cpl. Leachman was the driver of the service vehicle. Together, they were enforcing a one-way flow of traffic through the Bog Walk gorge. Cons. O'Connor was positioned at the exit of the Spanish Town end of the gorge while Spl. Cpl. Leachman traversed the Flat Bridge in the service vehicle.
Whilst he was so engaged, Cons. O'Connor received a call from Spl. Cpl. Leachman to stop the vehicle the claimant was driving. On the approach of the claimant's vehicle from the direction of the Flat Bridge Cons. O'Connor signalled the claimant to stop. Cons. O'Connor went into the road, pointed at the claimant, raised his left hand and pointed to the right hand side of the road. The claimant, Cons. O'Connor said, pulled to the left of the road in the vicinity of a nearby service station and stopped. However, as he approached the claimant sped off.
Not long after, Spl. Cpl. Leachman drove to where Cons. O'Connor was standing. They spoke. Spl. Cpl. Leachman then drove in the direction of the claimant's vehicle. In a matter of minutes Spl. Cpl. Leachman escorted the claimant back to where Cons. O'Connor stood.
Cons. O'Connor asked the claimant to switch off the ignition, step out of the vehicle and produce the documents for the vehicle. The claimant complied. Cons. O'Connor then asked him why he did not stop. The claimant replied that he did not see him. That invited the following retort from Cons. O'Connor, “really, I am dressed in my number one and I saw you pull to the left of the road and...
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