Steve Oddman v Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Hon. K. Anderson, J.
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] JMSC Civ 166
• Docket Number: CLAIM NO. 2012 HCV 03817
• Court: Supreme Court (Jamaica)
• Date: 24 June 2016

[2016] JMSC Civ 166

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Anderson, K. J.

CLAIM NO. 2012 HCV 03817

Between

Steve Oddman

1 ^st Claimant

and

Orville Bowra

2 ^nd Claimant

and

Attorney General of Jamaica

1 ^st Defendant

and

Sergeant Carwood

2 ^nd Defendant

Aon Stewart , Nieoker Junor and Bianca Samuels , instructed by Knight , Junor and Samuels , for the Claimants

Gail Mitchell , instructed by the Director of State Proceedings, for the 1 ^st Defendant

NEGLIGENCE — ASSAULT — BATTERY — FALSE IMPRISONMENT — AGGRAVATED DAMAGES — GENERAL DAMAGES — SPECIAL DAMAGES — EXEMPLARY DAMAGES — VINDICATORY DAMAGES/DAMAGES FOR BREACHES OF CONSTITUTIONAL RIGHTS — PROOF OF DAMAGES CLAIMED FOR — SELF DEFENCE — BURDEN OF PROOF AS REGARDS SELF DEFENCE

IN OPEN COURT

The background

1 This is a claim for damages for negligence, assault and battery and false imprisonment, which has arisen as a consequence of a series of incidents which occurred in the community known as Arnett Gardens, on August 31, 2007 and which occurred as a consequence of a police operation which was being conducted in that community, on that day.

2 On that day, the claimants, respectively, were shot and thereby injured, allegedly as a consequence of police personnel having been wildly firing gunshots from the rifles which they then had in their possession, while they were patrolling in that community. The claimants have further alleged that after they had been so injured, they were not promptly taken by the police personnel, to a hospital, for medical treatment and also, that they were assaulted and that, as a matter of law, the tort of battery was committed upon them, by members of the police personnel. In particular, in that latter-mentioned respect, the 1st claimant has alleged that he was essentially, battered by police personnel, after he had been placed under arrest at the location where he had been shot, while he was walking along a roadway.

3 For his part, the 2 ^nd claimant has alleged and indeed, it has not been disputed by the 1 ^st defendant, that he was shot and thus, injured, while he was inside of his home, in the said community.

4 The 1 ^st defendant has not admitted to police officers/crown servants, having shot and/or injured either claimant. Furthermore, the Crown has contended, in their defence and also, via the evidence of their only witness, that whilst police officers did fire gunshots with the use of their firearms, at about 8 p.m. on August 31, 2007, while they were on foot patrol in the Arnett Gardens community, in an area known as, “Sudan Pathway,” they only so fired same, in defence of themselves. Accordingly, they have put forward the defence which is commonly known by the misnomer —“Self Defence.” That is a misnomer because, it is a defence which is not at all restricted to circumstances wherein a person is defending himself or herself, in response to an actual or perceived attack. It also applies to circumstances wherein a person is taking reasonable measures to protect any other person from harm and/or loss of property, or solely to protect his or her own property.

5 The 1 ^st defendant's statement of case, alleged that whilst the four (4) member team of police personnel were at the southern entrance of Sudan Pathway, the 1 ^st claimant and about two (2) other men, were seen walking from the northern end of Sudan Pathway, at which time, the 1 ^st claimant had a rifle in his hand and one (1) of the other men that were there with him, also had a gun in his hand.

6 A member of the police team then shouted —“Police, don't move.” The 1 ^st claimant then fired gunshots using the weapon that he had and those gunshots were fired in the direction of the police team. The police team then fired gunshots using their firearms, in the direction of the 1 ^st claimant. They did so, in self defence.

7 After the police team members had fired gunshots in the direction of the 1 ^st claimant, the 1 ^st claimant and the other men, ran back to the northern end of the road while continuing to fire gunshots, at the police team. The police team continued to return the fire, but ceased firing gunshots from their weapons, when the 1 ^st claimant and the other men, were no longer in their line of vision.

8 After the shooting had subsided, the 1 ^st claimant was found at an outdoor location which was towards the northern end of the road. He was then found to have been suffering from an injury to one of his feet. In the defence's statement of case, it was alleged that he was then suffering from an injury to his foot, but it should be noted that the 1 ^st claimant's evidence given in this case, which in fact was unchallenged in that particular respect, makes it clear that the 1 ^st claimant was in fact found by police personnel, to have been suffering from an injury to his right buttock and that said injury, was a gunshot wound.

9 In his evidence-in-chief, as per his witness statement, the 1 ^st claimant testified that he and the 2 ^nd claimant were walking together, towards Mr. Bowra's house at Eight Street, which is one block away from where the 1 ^st claimant was then living. When they reached to the 1 ^st claimant's house, the 2 ^nd claimant's mother and a lady were sitting on the sidewalk, a few metres from the gate. The 2 ^nd claimant went inside of his home and the 1 ^st claimant stayed outside the gate to the 2 ^nd claimant's house, speaking to the ladies. Approximately ten (10) minutes later, he heard what sounded like gunshots coming from down Sudan pathway.

10 The older of the two (2) ladies ran off towards her house and the 1 ^st claimant followed her. While running, he turned around and ran back towards her and assisted her to get up, off the ground and then, they both continued to run towards her friend's house. While running, he could still hear explosions coming from where he observed the police officers, which were getting louder and he heard whistling sounds passing by where he was, with the 2 ^nd claimant's mother. As they reached the steps of the house of the friend of the 2 ^nd claimant's mother, he felt a burning sensation to his right buttock and he immediately fell down, on a picket fence. He tried to get up, but had to remain down, because more gunshots were being fired. He crawled from there, to the bottom of the steps and tried to climb those steps. He was though, unable to do so, as his legs could not carry him up the stairs, as they were weak and in excruciating pain.

11 The police personnel that were nearby and who had been firing, approached to where he was and immediately and without any warning, savagely kicked and gun-butted and boxed him and asked him where is the gun. He told them that he did not have any gun. He then observed when the 2 ^nd claimant staggered outside and told the officers on the outside, that he had been shot. One of the officers, while pointing a long gun in his face, said —“Pussyhole come yah. Weh di gun deh?” The officer then ordered him to lift up his shirt, which he did. While he was being savagely beaten by police officers, he was barely able to observe when the 2 ^nd claimant was also being beaten by police personnel and being asked —“Where is the gun?” The account given by Mr. Oddman as to what happened after Mr. Bowra had staggered outside of his home, is in large measure, the same account which was provided to the court, by Mr. Bowra.

General burden of proof

12 The claimants had the burden of proving their claim, on a balance of probabilities. As such, it was for them to have proven, if they could, that they were injured due to gunshots which were fired by police personnel. It would only be if that was proven by each of them, that this court would then be obliged to consider what were the circumstances surrounding the shooting of each of the claimants, for the purpose of determining whether each such shooting was negligently caused, or intentionally caused and whether same were caused, pursuant to the relevant police personnel having, at the material time, come under gunfire attack, thereby having necessitated them to have responded in like manner, that being, in essence, the gravamen of their contention that they acted in self defence and did not act negligently or carelessly, in having fired their weapons, at the material time.

13 This court has concluded, on a balance of probabilities, that indeed, the police officers who were on patrol on the relevant occasion, in the Arnett Gardens community, were, for whatever reason, firing wildly in the midst of a residential community and that is why both of the claimants got shot.

14 This court has entirely rejected the defence's assertion that at the material time, the police personnel who were at the centre of this case, had come under gunfire attack from the use of a rifle by the 1 ^st claimant. The reasons for this court's rejection of that assertion, are set out, further on in these reasons.

Burden of proof as regards self defence

15 Before addressing that in some detail though, it is necessary to first address the issue as to who had the burden of proof as regards the defendant's assertion of self defence.

16 As a prerequisite to addressing that issue though, it must be made clear that this court has applied the provisions of Section 33 of Jamaica's Constabulary Force Act , (hereinafter referred to as the “ Constabulary Force Act ”) for the purpose of making its final determination of this claim. Section 33 requires that in order for a claim in tort to be successfully proven as against a police constable, the claimant must not only successfully prove the commission of the relevant tort (wrong), but also, must prove that such tort was either committed maliciously, or without reasonable or probable cause.

17 Turning back now, to the issue of who has the...