Leeman Anderson v Attorney General et Al

• Jurisdiction: Jamaica
• Judge: Sykes J ( Ag)
• Judgment Date: 16 July 2004
• Judgment citation (vLex): [2004] 7 JJC 1601
• Court: Supreme Court (Jamaica)
• Docket Number: SUIT NO. CL A 017 OF 2002
• Date: 16 July 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. CL A 017 OF 2002

BETWEEN

LEE MAN ANDERSON

CLAIMANT

AND

THE ATTORNEY GENERAL

FIRST DE FE NDANT

AND

CHRISTOPHER BURTON

SE COND DE FE NDANT

ASSAULT AND BATTERY - Identification evidence - Whether or not second defendant was person who inflicted physical injury on claimant

DAMAGES - Assault and battery - Personal injuries - Pain and suffering - Loss of amenities - Aggravated and exemplary damages - Special damages

Sykes J ( Ag)

1 ASSAULT AND BATTERY

2 The outcome of this case depends on whether Leeman Anderson correctly identified Constable Christopher Burton as the person who committed the tort of assault and battery. Mr. Anderson claims that Christopher Burton, the second defendant, who is a member of the Jamaica Constabulary Force, inflicted unlawful physical injury on him on December 14, 2000 at 44 West Bay Farm Road in the parish of St. Andrew. He seeks compensation for his injuries in the form of general damages, special damages, aggravated damages and exemplary damages. Constable Burton on the other hand says he was not the person who injured the claimant. I propose to deal first with the issue of identification.

3 THE IDENTIFICATION EVIDENCE

4 I will divide the examination of the evidence into two parts. I will look at the evidence of prior knowledge, that is, whether the claimant knew Burton before the incident. Next I will focus on the quality of the identification evidence at the time of the incident.

• (a) Evidence of prior knowledge

  Mr. Anderson alleges that he knew the constable before the day of the incident. He stated that he saw the constable freauentlv in the Bay Farm Road area. The constable agreed under cross examination that he knew Mr. Anderson. Therefore this is a case of recognition rather than the claimant trying to identify a constable whom he did not know before or did not know very well.

• (b) Evidence at the time of the incident

  Mr. Anderson gives a narrative in his witness statement from which I am asked to infer that he could see well enough to make a positive identification even though it makes no mention of lighting, distances and what parts of the constable he was able to see so as to be sure that he was identifying the correct person.

  His testimony is that on December 14, 2000 after 7 o'clock in the evening he was in his shop when he saw three police officers walking along West Bay Farm Road. He heard them telling persons to close their shops. Three officers entered his shop. Of the three he only knew Constable Burton. He describes the uniforms they were wearing and adds that the two whom he did not know had guns in their waists. According to him Constable Burton had on the regular police uniform while the other two were in "blue police uniform".

  The three officers entered his shop and gave him the same instructions that they had given the other shop operators along West Bay Farm Road. He declined to follow them. He said Constable Burton cursed him. A war of words ensued which culminated in Constable Burton using a crutch to beat the claimant over his head, arm and the rest of his body. This act of beating, if true, may have placed Constable Burton in close proximity to the claimant thereby providing an opportunity to see his face. In addition the exchange of words in the shop before the beating began would have also provided further opportunity to see and recognise the police officer.

  When the issue of time was tentatively explored in cross examination the claimant said that at that time in the evening it was not that dark and the sun was still shining. He later said in re-examination that he was not checking the time and so could not be sure about the time he gave in the witness statement. What do I make of this inconsistency? It is well known that barring divine intervention, the sun does not shine in Jamaica in December after 7 o'clock in the evening. Could he be deliberately adjusting the time in an attempt to convince the court that he could recognise the police officer? I do not think that that is the case. On his narrative given in the witness statement the inference is that he was in his shop ready to do business. This suggests sufficient light either in the shop or nearby to enable him to operate his business. His ability to describe the police uniforms and to make the distinction between Constable Burton's uniform and the other two suggests that there was sufficient lighting. He could see that the other two police officers were carrying guns in their waists. Thus even though there was no specific evidence concerning light, I conclude that he was able to see well enough to identify Constable Burton and he was not mistaken. This conclusion is based upon the strong evidence of prior knowledge (which reduces considerably but does not eliminate the risk of mistaken identification), his ability to describe the officers and how they were dressed, the duration of the incident which could not have been very brief and the close proximity of the Constable to the claimant.

  Mr. Deans reminded me of Lord Widgery's now famous judgment of R v Turnbull [1977] QB 224. I have taken it into account. The danger of mistaken identification is no less in civil cases than in criminal cases. One of the possible consequences of an incorrect identification in a civil case such as this is an award of damages against the wrongfully identified defendant. However the standard in the civil case is on a balance of probabilities and applying that standard I accept that Mr. Anderson had sufficient light and opportunity to make a correct identification of someone who was known to him before.

  Mr. Deans next submitted that the claimant had a motive to lie because he accused Constable Burton of killing his nephew. Mr. Anderson rebuffed that suggestion and stated that he could not have accused the constable of this because he was not the person who had shot his nephew. Mr. Anderson's witness statement did show that he accused Mr. Burton of killing his nephew. It seems to me that that had to be looked at in the context of the angry exchanges that had taken place before this was said. Mr. Anderson said when he told the police he would not close his shop the police responded by saying, " You nuh hear mi say you fi lock up the bumbo cloth shop " Clearly if this was true then tempers were rising and from the evidence, it appears, that Mr. Anderson's nephew was indeed killed that day. It is alleged that he was killed by the police. In this context to say, " You murder mi nephew you want ft come murder mi now ", is quite understandable. On this point I do not accept that Mr. Anderson has been proven to have any special reason to He on Mr. Burton in particular.

  It necessarily means that on a balance of probabilities I do not accept that Constable Burton was at the intersection of Pennwood Road and Bay Farm Road between the hours of 4:15 pm and 11:00 pm on December 14, 2000. He said he was there to prevent persons erecting road blocks in response to an alleged unlawful shooting by the police.

  I must add as well that the apparent confidence of the police officer took a turn for the worse when Miss Maragh tried to get him to alter his position by confronting him with the station diary. The request for the station diary came very late in the day - during the trial of this matter. I observed that once the diary was in court and before it was handed to him the officer began shuffling and moving around in the witness box. His countenance and complexion changed. He is of fair complexion. He maintained his denial of the incident. Further proof of the entries could not be pursued. This suggests that in future counsel appearing in these matters may wish to consider asking at case management conferences for specific disclosure of the appropriate documents to track the movement of police officers if their whereabouts are important. The answer that is usually proffered by the Attorney General, as was put forward in this case, is that either the diary cannot be found or it would take too long to find it is not good enough. A modem police force must have proper records to account for its officers.

5 Facts proven

6 On a balance of probabilities I accept that

• a. Mr. Anderson is neither mistaken nor untruthful when he identified Constable Burton as the police officer who beat him up;

• b. Mr. Anderson is both honest and reliable in his identification;

• c. both Mr. Anderson and Constable Burton knew each other before the incident and that...