Murphy v Richards

JurisdictionJamaica
JudgeCools-Lartigue, J.
Judgment Date08 February 1960
Neutral CitationJM 1960 CA 1
CourtCourt of Appeal (Jamaica)
Date08 February 1960

Court of Appeal

MacGregor, C.J; Cools-Lartigue, J.A.; Phillips, J.A.

Murphy
and
Richards
Appearances:

Coore for the appellant.

Douglas for the respondent.

Tort - False imprisonment — Wrongful arrest under the Unlawful Possession of Property Law, Cap.401 — Action against constable — Circumstances under which constable entitled to the protection of the Constabulary Force Law, Cap.72, s.39.

Cools-Lartigue, J.
1

In this action the plaintiff claimed damages against the defendant for assault and false imprisonment in that on the night of December 19th, 1958, the defendant entered the plaintiff's house at Parry Town and without reasonable and probable cause arrested the plaintiff and conveyed him to the Claremont police station in Saint Ann and caused him to be kept in custody until December 21st, 1958. The plaintiff further claimed damages for that the defendant on December 23rd, 1958, in the parish of Saint Ann maliciously and without reasonable and probable cause preferred before the resident magistrate for Saint Ann a charge against the plaintiff for unlawful possession of goods on which charge the plaintiff was dismissed without being called upon to present a defence. The learned resident magistrate found for thedefendant on both claims and entered judgment accordingly with costs.

2

From that judgment the plaintiff has appealed, but learned counsel for the appellant made it clear at the outset that the appellant only intended to proceed with the appeal in respect of the claim for false imprisonment. We need not therefore concern ourselves with the claim for malicious prosecution.

3

The appellant is a carpenter living at Parry Town in Saint Ann. The respondent is a detective acting corporal of police stationed at Claremont in Saint Ann.

4

On Friday, December 19th, 1958, at about 4 p.m. the appellant wasseen with a young heifer on a section of the Reynolds (Jamaica) Mines, Ltd. property at Murphy Hill, known as Big Common, by Ralph Saint, a farmer of Epworth District. The appellant was pulling the cow by a rope and according to Saint was ill-treating the animal. The appellant asked Saint to assist him by driving the cow for him and Saint replied that instead of ill-treating the cow in that way, why did he not go for the mother. The appellant replied that the mother wasjust around the corner. The appellant then hit the animal on the head with a double rope and held her horns and threw her to the ground. Saint remonstrated with the appellant and repeated his advice to him to go for the mother. The appellant then said that the mother was dead and thathe had neglected the calf for some time and had only just come to fetch her. Saint then left. Later that evening, on his way back home by way of Big Common, Saint saw the appellant standing near the heifer which was lying on the ground at roughly the same spot where he had seen herthrown by the appellant.

5

That same evening, Saint made a report to District Constable Hartman Smith who lives at Epworth District and is attached to the Claremont police station. At about 7 p.m. Saint and Smith made a report to John Melville, a justice of thepeace. All three men went to Big Common and saw the heifer lying on the ground where Saint had seen her on his way home. She had a rope around her horns or her neck and appeared to be suffering from some injury. Subsequently the animal had to be destroyed by a veterinary surgeon.

6

Melville remained with the heifer and sent Saint and the District Constable to the Claremont police station. There a report was made, as a result of which the respondent went to Big Common. He saw the injured heifer lying on the ground and received information from Saint, Smith and Melville. He also learnt that the animal was on lands of Reynolds (Jamaica) Mines, Ltd., upon which the appellant had no authority to pasture cows.

7

At about 11 p.m. that same night the respondent went to the house of the appellant who was in bed with his wife. He entered the premises accompanied by another constable. After revealing himself to the appellant, he told the appellant of the report he had received and enquired of him how he came by the cow. The appellant thereupon replied that the cow was his property and that all he was doing on the land of Reynolds (Jamaica) Mines, Ltd, was “thiefing a little feed”.He also said that the mother of the heifer had died about two years previously. The appellant, who was in his pyjamas, was allowed to put on his clothes and was then searched. He was then taken into custody and conveyed to the police station at Claremont and placed in a cell. Next day he was taken before a justice of the peace at Arthur's Seat, who remanded him in custody, offering bail, and he was then taken back to the Claremont police station. Later that day the appellant was taken to a justice of the peace and bailed.

8

On December 23rd, 1958, the appellant was brought before the Resident Magistrate's Court at Moneague charged for that he being a suspected person was in possession of a cow reasonably suspected to have been stolen or unlawfully obtained. He was discharged without being called upon by the learned resident magistrate to account for his possession.

9

The first point raised far our consideration by learned counsel for the appellant was that the appellant, at the time of his arrest, was not in fact in possession of any cow; that he was consequently not a “suspected person” as defined under the Unlawful Possession of Property Law, Cap.401 [J.], and that therefore his arrest was unlawful.

10

Under that Law a “suspected person” is defined as meaning any person who:

  • (a) “Has had in his possession or under his control in any place any thing being an article of agricultural produce; or

  • (b) Has in his possession or under his control in any place any thing including an article of agricultural produce;

under such circumstances as shall reasonably cause any constable or authorised person to suspect that that thing has been stolen or unlawfully obtained.”

11

It appears to us obvious in view of that definition that the appellant was not a “suspected person” at the time of his arrest. Moreover learned counsel for the respondent conceded that the respondent had no power to arrest the appellant under the Unlawful Possession of Property Law [J.], as he purported to do.

12

The rather difficult question now arises as to whether in these circumstances the respondent was entitled to the protection of s.39 of the Constabulary Force Law, Cap.72 [J.]. That section reads:

“39. Every action to be brought against any constable for any act done by him in the execution of his office, shall be an...

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