Keith Brown v Constable Neville Heaven and Others
| Jurisdiction | Jamaica |
| Judge | Straw J |
| Judgment Date | 02 June 2011 |
| Judgment citation (vLex) | [2011] 6 JJC 0201 |
| Court | Supreme Court (Jamaica) |
| Date | 02 June 2011 |
| Docket Number | CLAIM NO. 2006/HCV02524 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. 2006/HCV02524
Ms. Kayann Balli for the Claimant
Mrs. Trudy Ann Dixon Frith and Ms. Gail Mitchell instructed by the Director of State Proceedings for 2 nd and 3 rd Defendants
Ms. Denieve Barnett for the 1 st and 4 th Defendants
Malicious Prosecution -False Imprisonment
1. The claimant, Mr. Keith Brown, a financial consultant, has brought a claim against the defendants for malicious prosecution and false imprisonment. Mr. Neville and Mrs. Marva Heavens, the 1 st and 4 th defendants respectively, contracted Mr. Brown in May 2005 to prepare the financial accounts for the years 2003 and 2004 for their business, The Food Hygiene Bureau (FHB). Both Heavens are directors of the company. Mr. Heaven was also a corporal of police who was stationed at the Ferry Police Station. The 2nd defendant, Mr. Dave Morrison, was at the relevant time a detective constable assigned to the Constant Spring CIB.
2. On the 9 th August 2005, Mrs. Heaven made a report to Constable Morrison concerning Mr. Brown.
As a result of the said report, Constable Morrison obtained a warrant on the 11 th August signed by one Mr. Uter, a Justice of the Peace for the arrest of Mr. Brown on a charge of fraudulent conversion.
The 3 rd defendant, the Attorney General, is being sued in his capacity as the Director of State Proceedings in respect of the actions of the 1 st and 2 nd defendants acting in the course of their duties as the servants and or agents of the State.
3. The claimant was actually arrested on the 19 th December 2005 by Constable Morrison when he was taken from the Constant Spring Revenue Department where he had gone to conduct business. He was seen there by Mr. Heaven who was on vacation leave and conducting his own personal business.
He was bailed on the same day and attended the Half Way Tree Resident Magistrate Court on the 22 nd December 2005 to answer the charge of fraudulent conversion. The matter was adjourned to the 29 th December 2005 and then further adjourned to the 11 th January 2006, when the court directed that No Order be made as the matter should be dealt with in the Civil Court.
The claimant is contending that the Heavens and Constable Morrison acted maliciously and without reasonable and probable cause in commencing a criminal prosecution against him and caused him to be falsely imprisoned for several hours both at the Revenue Department and at the Constant Spring Police Station.
The Contractual Relationship between Mr. Brown and the Heavens
4. In order to properly determine the issues, the actions of the above parties subsequent to the contractual relationship must be examined and carefully considered. It is agreed that the financial reports were needed urgently and were to be completed within three weeks. The sum of $150,000.00 was the agreed contract price. However, the claimant contends that this figure was merely an estimate [pro forma Invoice] depending on the actual work that he would have to do. The Heavens state that this figure was the final agreed figure for which they received an invoice. This invoice was tendered and admitted into evidence as Exhibit 4.
5. Mr. Brown received a cheque of $30,000.00 on the 9 th May 2005 as a deposit and a subsequent deposit of $30,000.00 on the 10 th June 2005.
Both parties agree that Mr. Brown requested additional documentation between May and June so the original completion date had to be extended. Mr. Brown gave evidence that he received the last set of documents from Mr. Heavens at his home/office in early July. This has not been disputed. However, Mrs. Heaven states that the last relevant documents were delivered in June.
6. On the 4 th August, the Heavens turned up at his home unexpectedly demanding to see the work he had done up to this point. According to Mr. Brown, he had a summary report available but the Heavens insisted on seeing the detailed transaction summary which was on the computer in his bedroom and he refused them access to his bedroom. The Heavens have denied that he showed them any summary at all. However, both parties agree that the relationship broke down and the contract was terminated. The Heavens maintain that it was Mr. Brown who terminated the contract insisting that he could not work with people who did not trust him. On the other hand, Mr Brown insists that it was the Heavens who terminated the contract.
7. At the end of the day, Mr. Brown was asked to produce the work that he did or return the sum of $60,000.00. The intention was that the Heavens would give the interim report to another accountant to complete the work. Mr. Brown said that he agreed to return Mrs. Heaven's original records with his bill and the interim report showing the progress of the work that he had done.
8. On the 8 th August 2005, Mr Brown returned the records to the company's office on Mannings Hill Road. Mr Heaven assisted him in taking the boxes with the records from the vehicle into the office. Mr. Brown then promptly left the location. According to him, he had placed his bill (Exhibit 2) and the interim report (Exhibit 3) in one of the boxes.
9. The Heavens have denied that there was any such bill or interim report located or seen amongst the records.
Mrs. Heaven has stated that she called him the same day and asked him for the report and that he promised to send it by email. She stated that she has never received any email from the claimant containing any draft, interim or other report.
10. Mr. Brown confirmed that Mrs Heaven called him on the 8 th August but that she requested a soft copy of the report and that it was sent to her by email.
The Report to Constable Morrison
11. Constable Morrison reports that Mrs. Heaven visited the Constant Spring Police Station on the 9 th August 2005 and made a report to him. He did not know her before, neither did he know of her connection to Mr. Heaven. He collected a statement from her. (Exhibit 9) The statement was taken at 8:30 p.m.
A perusal of the statement reveals that the agreed contract price for Mr Brown's services was $150,000.00 and that the accounts were to be completed in three weeks. He was given two deposits of $30,000.00 respectively on the 9 th May and 10 th June 2005. He failed to supply the draft financial statement. Mrs Heaven questioned him about the failure and the claimant stated that he needed a further $20,000.00. She refused to give it to him. Mr Brown then terminated the contract and indicated that he could not work under such conditions. He stated that he would return the company documents and a report and copy of the work he had done so far by the 5 th August. He failed to do. On the 6 th August, she contacted him by telephone. Mr Brown stated that he would finish the job but that he needed $20,000.00 first. She refused and asked him for her company documents.
12. On the 8 th August at 6:30 p.m., he brought the said documents. When she checked through the documents, there was no financial draft and no print out showing any work done. She called Mr. Brown and asked him what of the work he did for $60,000.00. She said that he made excuses and promised to send the draft by email the following morning. Up to 8:30 p.m., on the 9 th August, he had failed to do so and that he also ceased communication with her. She further stated as follows:
‘I do believe that Mr Brown is trying to swindle my husband and I of our—money.’
13. Mrs. Heaven gave Constable Morrison two sets of telephone numbers and Mr. Brown's address. He also received copies of the cheque receipts paid to Mr. Brown.
Constable Morrison's State of Mind
14. Constable Morrison stated that he had no reason to doubt the truthfulness of the report. He attended Mr. Brown's residence on several occasions between the 9 th and 11 th of August. He also tried to contact him using the telephone numbers. However, he was unsuccessful on all occasions. He stated that he visited the house at night as he believed Mr. Brown would be there at that time. He visited the house on the 9 th , 10 th and 11 th . He also visited the house after the 11 th August.
15. Constable Morrison further stated that based on all the above factors, he reasonably believed that Mr. Brown had committed the offence of fraudulent conversion. On the 11 th August, he laid an information against Mr. Brown on the charge of fraudulent conversion and secured the arrest warrant.
Other Factors to be Considered
16. Mr. Brown left the island for Canada on the 19 th August 2005 and did not return until the 13 th December 2005. There is no evidence that Constable Morrison knew where he was or that he had business interests in Canada. In fact, there is no evidence that the claimant told the Heavens that he would be leaving the island in August. The Heavens have said that they were not told and the court accepts that this is true.
17. Constable Morrison's first contact with Mr Brown was on the 191 of December when he was called to the Constant Spring Revenue Department by Mr. Heaven. Although Mr. Heaven has denied that he was the one who called Constable Morrison. I accept the evidence of Constable Morrison as being more reliable and credible on the point. It was Mr. Heaven who had seen Mr. Brown at the said location. His evidence is that he alerted a district constable at the location that the police at Constant Spring wanted to question Mr. Brown. He does not state that he saw or heard the district constable or anyone else make contact with the police station. However, he states that...
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