Peter Bandoo v Detective Sergeant Ralph Grant
| Jurisdiction | Jamaica |
| Judge | Bertram Linton, J |
| Judgment Date | 26 April 2017 |
| Neutral Citation | [2017] JMSC Civ 59 |
| Docket Number | CLAIM NO. 2013 HCV 00637 |
| Court | Supreme Court (Jamaica) |
| Date | 26 April 2017 |
[2017] JMSC Civ 59
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
Bertram Linton, J
CLAIM NO. 2013 HCV 00637
and
Akuna Noble instructed by Kazembe & Co. for the Claimant
Celia Middleton instructed by Director of State Proceedings for the Defendants
Assessment of Damages — Malicious Prosecution — False Imprisonment — Principles guiding award — Aggravated Damages — Exemplary Damages — Loss of earnings — Whether psychological/psychiatric condition due to criminal proceedings — What awards are applicable.
Peter Bandoo the claimant, discovered the dead body of Ms. Sandra McLeod on the 5 th of June, 2005, at Merrill's Beach Resort, where he was employed as the Security and Resort Property Manager. He alerted the Negril police to his discovery and soon thereafter he was detained as a suspect and taken to the Negril Police Station in a marked police service vehicle.
Mr. Bandoo remained in the lock up at the Negril Police Station for over two weeks without being charged or brought before the court, as the law dictates. On the 24 th of June 2005, he was taken to court only after a Habeas Corpus application had been made and, at that time, quite strangely to the Supreme Court. The presiding Judge ordered that Mr. Bandoo be taken before the Savanna La Mar Parish Court for the matter of his release to be determined. Mr. Bandoo was later charged with murder.
On the 28 th of June, 2005, he was taken before the Savanna La Mar Parish Court where bail was refused. Another attempt was subsequently made to secure bail for him but this was also unsuccessful. Bail was finally granted on an appeal of refusal of bail by a Judge in chambers at the Supreme Court.
On the 21 st of April, 2005, his case was finally committed to the Circuit Court. With the exception of the return of Mr. Bandoo's travel documents, the Learned Judge removed all bail conditions. As such, Mr. Bandoo was taken to the Savanna La Mar Court Office where he was again detained because of administrative delays in relation to the amendment of his bail conditions.
Criminal proceedings against Mr. Bandoo continued until May 14, 2012 when the Director of Public Prosecution offered no evidence and the case was dismissed.
On the 5 th of February, 2013, Mr. Bandoo filed a claim against Sergeant Ralph Grant, the Director of Public Prosecutions and the Attorney General for damages claiming false imprisonment, malicious prosecution, aggravated and exemplary damages and damages for psychiatric injury arising from his ordeal between the 5 th of June 2005 – 14 th of May 2012. It is to be noted that the suit was discontinued against the Director of Public Prosecutions.
The Attorney General did not acknowledge service or file a defence and as such, the claimant sought permission to enter default judgment against the state. This request was granted as the crown was denied an extension of time within which to file their defence.
The matter is now before this court for Assessment of Damages.
The Claimant submits that he was falsely imprisoned as there was no evidence that pointed to his committing the crime for which he had been charged. He says that for his detention of 23 days, he should be awarded $251,421.77 per day which would be a sum of $5,782,700.71. Reliance was placed on the case of Attorney General v Glenville Murphy [2010] JMCA Civ. 50.
Counsel for the claimant further submitted that criminal charges were brought against him out of malice and that there was no reasonable basis for them in the first place. It was emphasized that the proceedings lasted for a total of seven years, during which time the claimant's life was ‘turned upside down’. Counsel asked the court to consider the length of time which the Claimant was made to undergo prosecution and relied on the authority of Allan Currie v Attorney General of Jamaica Claim. No. 1989/C-315 delivered August 10, 2006. The court was asked to adjust the award in Allan Currie to reflect the difference in time which the prosecution lasted for. As such, the claimant requests the sum of $23,217,801.20 as damages for Malicious Prosecution and Aggravated damages (as per the claimant's response filed February 21 st, 2017).
The claimant also contends that another $1,742,948.04 should be awarded for exemplary damages as the defendant's behaviour was unacceptable and outrageous.
The claimant submits that he suffered psychological damage as a result of the entire ordeal. He was diagnosed with chronic post traumatic stress disorder as well as depression. He says that given the severity of his condition he should be awarded a sum of $3,734,888.64. This total he has arrived at by multiplying the award in the case of Sharon Greenwood-Henry v Attorney General of Jamaica Claim. No. 116 of 1999 delivered October 2005 by 3 to reflect the severity of his condition in comparison to the claimant in Greenwood-Henry. Further based on his reliance on the case of Celma Pinnock v The Attorney General for JamaicaKhans Vol. 5 page 289 he should be awarded a further $12,135,872.14 for psychological damage.
Initially, the claimant submitted that Mr. Bandoo was to be compensated for special damages in the sum of 35,480,571.04 to reflect costs for medication, transportation, doctors visits and reports, credit from supermarket, loss of income, loss of future income, legal fees, monies borrowed from Vandev Electrical plumbing and hardware and lodging to attend court. However, in their submissions in response to the defendants' submission they claimed special damages in the sum of $8,559,000.00.
The court is unsure as to the basis of the revision. However, it is clear from Mr. Bandoo's evidence that he lost his job and his earnings from that job because of his arrest, charge and the pending trial. In support of this, he has submitted proof from his former employers of the salary he was earning when he stopped working and what he would have earned for the period during which the trial was pending. He subsequently returned to work at the end of the process when the case was dismissed.
In addition the evidence presented by the claimant under this heading included various receipts for doctors visits and medication. Evidence was also given as to Mr. bandoo's legal fees throughout the criminal trial process.
In relation to false imprisonment, the defendants submit that the claimant's request is unreasonable. Firstly, they contend that the length of time for detention is not 9 weeks and 4 days as claimed in the particulars. They say that the authority of John Crossfield v Attorney General Claim. No. E219/2001 delivered September 10, 2009 provides that the length of detention to be claimed in respect of false imprisonment is the time between initial arrest and the claimant being brought before the court for the first time. In these circumstances he should be awarded for 19 days detention. Also, relying on the authority of Devon White v Lenworth Cammock and Attorney General Claim. No. 2006 HCV 00787 delivered April 2, 2009, the defendants say that he should be awarded $154,000.00 for the first day of detention and $85,000.00 for each day thereafter. This would total $1,648,000.00 for damages for False Imprisonment.
In relation to malicious prosecution, the defendants submit that the claimant's calculation is erroneous. They say that the authority of Allan Currie on which the claimant is relying is misleading as the award there covered two heads of damages and was not confined to malicious prosecution only. Instead, the defendant says reliance should be placed on the case of Roderick Cunningham v Attorney General et al [2014] JMSC Civ. 30 which details factors the court took into consideration before awarding damages for malicious prosecution. These factors include:
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(a) Seriousness of the offence charged
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(b) Length of time the prosecution lasted
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(c) Number of times he attended court
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(d) Any damage to reputation or credit
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(e) Mental distress or anxiety, humiliation and or disgrace and any inconvenience, indignity and discomfort caused from the fact of the charge against him
It is submitted that this case and the award handed down was more appropriate in the circumstances. As such, the sum of $3,500,000.00 would be an acceptable award since the case at bar is analogous to the Cunningham case.
Counsel for the defendants contend that aggravated damages ought to be awarded in the sum of $700,000.00. This amount was submitted as reasonable having regard to the similarity between the aggravating circumstances in Roderick Cunningham and the instant case. It was submitted that the case relied on by the claimant presented more extreme circumstances which cannot be compared to the case at bar. Furthermore, they contend that the same amount of $700,000.00 ought to be awarded for exemplary damages based on Roderick Cunningham.
In relation to the psychiatric injuries which the claimant suffered, the defendant submit that the court ought to consider whether there is sufficient nexus between the circumstances described by the claimant and his psychological damage. They submit that the claimant's request for two separate awards is unfounded and that the reliance placed on the Celma Pinnock case ought to be approached with caution because the award there spanned different heads of damages. Instead, the...
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