Johnson v Ellis and The Attorney General

• Jurisdiction: Jamaica
• Judge: Morrison, J.A.
• Judgment Date: 22 May 2009
• Neutral Citation: JM 2009 CA 154
• Docket Number: Civil Appeal No. 47 of 2006
• Date: 22 May 2009
• Court: Court of Appeal (Jamaica)

Court of Appeal

before

Cooke, J.A.;

Harris, J.A.;

Morrison, J.A.

Civil Appeal No. 47 of 2006

Johnson

and

Ellis and The Attorney General

Appearances:

Ms Melrose Reid instructed by Maurice Saunders for the appellant.

Mrs. Trudy-Ann Dixon-Frith and Miss Stephany Orr instructed by the Director of State Proceedings for the respondents.

Malicious Prosecution - Appeal against the judgment of the trial judge who entered judgment for the respondent — Whether the claimant has shown that the first respondent acted without reasonable and/or probable cause — Whether the first respondent acted maliciously.

False Imprisonment - Whether the arrest and detention of the appellant was lawful where he was arrested for the criminal offence of obtaining goods by false pretenses.

Morrison, J.A.

1 This is an appeal from a judgment of Dukharan, J. (as he then was) given on 6 March 2006 in the Supreme Court, whereby he entered judgment for the respondents with costs to be agreed or taxed. The appellant, who was the claimant in the court below, is a farmer of Wait-a-Bit in the parish of Trelawny. The first respondent was at all material times a member of the Jamaica Constabulary Force and there is no dispute that he acted at the material time in the execution of his duties. The second respondent, therefore, is the Attorney General, who has appeared on behalf of both respondents. On 27 June 1995, the appellant was arrested by the first respondent and held in custody at the Wait-a-Bit Police Station for two days until 29 June, when he was taken before the Ulster Spring Resident Magistrate's Court on a charge of obtaining goods by false pretence. He was admitted to bail on that day.

2 There is a question on the evidence as to whether he had been offered station bail by the first respondent, or whether he was offered bail when he went before the Resident Magistrate. In any event he was not bailed until the 29th, the day when he went to court. After further appearance before the court, he was on 26 October 1995 acquitted of the charge of obtaining goods by false pretence. As a result he brought action against the respondent for assault and battery allegedly committed whilst he was detained and false imprisonment and malicious prosecution.

3 So far as the evidence which was before the learned trial judge is concerned, I will gratefully adopt his summary of that evidence which is set out at pages 58–60 of the record:

“The claimant gave evidence which is contained in a witness statement (exhibited). He said that in November 1994 he was painting Miss Babs Smith house where he sought to purchase one cwt. of yam heads from her farm. She told him he could have ¹/₂ cwt. for $500.00 at a later date. In February 1995 he spoke to Verol Adlam the farm supervisor for Miss Smith where he collected the Yam heads at a price of $500.00. He said he confirmed the purchase with Miss Smith and the following day he collected the yam heads. He paid $50.00 to Mr. Adlam as he could not find the balance and sought an extension from Miss Smith which he said was granted. He said at one time he made a suggestion to Miss Smith to return the yam heads as he was having some financial difficulty. This suggestion was refused.

He further said that after hearing the police was looking for him he went to the Wait-a-Bit Police Station where he explained to an officer of the agreement he had with Miss Smith and Mr. Adlam. He said that on the 27th

June, 1995 Detective Ellis came to his home and questioned him about the money owing to Miss Smith. He said he told Detective Ellis he did not have the money at the time. He was taken to in a police jeep to the Wait-a-Bit Police Station and left sitting in the station for quite some time. He said when he got up to leave he was manhandled and threatened with a baton by Detective Ellis. He said he was locked up and while entering the cell he was hit with a broom by a police officer named Sewell. He said he was locked up in a cell for two days with other prisoners which was poorly ventilated and with the stench of urine. He was taken to the Clarks Town Resident Magistrate's Court two days later. He said also that during his incarceration he was assaulted by other prisoners.

In cross examination he said there was an agreement to pay for the yam heads within four weeks. He said it was not true that he was cautioned by the police for obtaining goods by false pretences. He said he was never offered bail and only when he was taken to Court he was offered bail.

The 1st defendant, Det. Cpl. Ellis told the Court that he received a report from Babs Smith of an alleged case of obtaining goods (yam heads) under false pretences committed by the claimant. He said he approached the claimant and informed him of the report. The claimant admitted to receiving the 801bs of yam and agreed to pay Mr. Adlam by the end of May 1995. He said that on the 27th June, 1995 Mr. Adlam made a report to him that the $500.00 due and owing to Miss Smith was still outstanding. It was on that basis the claimant was charged for obtaining property by false pretenses. He was placed in custody and brought before the court two days later.

Cpl. Ellis denied threatening or assaulting the claimant nor did he see anyone hit or threaten the claimant.

In cross examination he said he offered station bail to the claimant. He agreed that from information there was an arrangement for him to pay $500.00 for the yams which was due and owing. It was suggested to him that he was putting pressure on the claimant to pay the money and that was the reason why he arrested him. This he denied. He also said that Miss Babs Smith told him that if the claimant paid the outstanding sum she would not proceed any-further with the matter.

Miss Babs Smith told the Court that she had an arrangement with the claimant for him to pay $500.00 for the yam heads. She said she told Cpl. Ellis about this arrangement and that she would not proceed if the matter of the outstanding sum was paid.”

4 The learned judge then stated his findings of fact as follows (page 63):

“I find as a fact that the 1st defendant received a report and acted on that report as he was duty bound to do. I also find as a fact that the 1st defendant acted honestly and without malice and with reasonable and probable cause.

There is no evidence of which I can find that there was an improper motive for the 1st defendant to lock up the claimant and to teach him a lesson. I also find as a fact that the claimant was offered station bail as soon as he was arrested and taken to court at the earliest possible time.

I do not find the claimant to be an entirely truthful witness. I do believe the 1st defendant when he said the claimant said on the second occasion that he was not paying for any yams.

In relation to the assault, I have doubts as to whether or not he was threatened with a baton at the police station by the 1st defendant. In sum the claimant in my view has failed to prove malice against the 1st defendant or that he was falsely imprisoned.”

5 In the result, judgment was entered for the defendants with costs. The appellant filed five grounds of appeal, as follows:

• “(a) that the learned trial judge erred in that he ignored or fail to take account of the evidence that there was an agreement for sale and that there was essentially a business transaction between Miss Bobs Smith and the plaintiff/claimant in which a debt was outstanding and that this information was conveyed to the first defendant before he arrested the plaintiff/claimant.

• (b) that the learned trial judge erred in that he found that the arrest and detention of the plaintiff/claimant for a criminal offence (without a warrant) was lawful although there was no evidence of any false pretense on the part of the plaintiff/claimant and no evidence or statement of what was the alleged act or acts of false pretence(s).

• (c) the learned trial judge erred in finding that the arrest and detention of the plaintiff/claimant was lawful notwithstanding the evidence of about (sic) information (as referred to in Ground (a) herein) which had been conveyed to the first defendant prior to arresting and detaining the plaintiff/claimant.

• (d) the learned trial judge erred in that he found that the prosecution of the plaintiff/claimant by the first defendant was not initiated with an improper motive and did not amount to a malicious prosecution notwithstanding the evidence of information (as referred to in Ground (a) herein) which had been conveyed to the first defendant prior to the prosecution.

• (e) the learned trial judge erred in that he found that the plaintiff/claimant was not assaulted notwithstanding (i) the evidence of the plaintiff/claimant that he was struck with a broom stick by Mr. Sewell (a servant or agent of the second defendant) and (ii) the absence of any evidence of denial by the said...