Vernaldo Graham v The Attorney General of Jamaica
| Jurisdiction | Jamaica |
| Judge | O. Smith, J (Ag.) |
| Judgment Date | 11 November 2022 |
| Docket Number | CLAIM NO. SU2019CV02048 |
| Court | Supreme Court (Jamaica) |
[2022] JMSC CIV 211
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CLAIM NO. SU2019CV02048
Ms. Chantal Bennett instructed by Dunn Cox for the Claimant
Louis-Jean Hacker and Mr. Javon Bowes instructed by the Director of State Proceedings on behalf of the Defendant
Application to Strike Out Statement of Case — Crown Proceedings Act — Constabulary Force Act — Claim brought in respect of Judge of the Supreme Court — Prosecutor and Police — Malicious Prosecution — False Imprisonment — Loss of Family Life?
In this matter, the Applicant/Defendant filed a Notice of Application for Court Orders on November 27, 2019 for the Claimant/Respondent's statement of case to be struck out or in the alternative that they be granted an extension of time to file their defence.
The grounds on which the Applicant/Defendant relies are:
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1. Rule 26.3(1)(c) of the Civil Procedure Rules, 2002 (CPR) vests the Court with the power to strike out a statement of case, in whole or in part, if it appears to the Court that the statement of case discloses no reasonable grounds for bringing a claim.
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2. There is no reasonable ground for bringing the claim for wrongful arrest and wrongful conviction as these are not causes of action known to the law of this jurisdiction.
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3. The Claim concerns directions given by a judge during the course of judicial proceedings and as such, the Crown is not liable for same by virtue of section 3(5) of the Crown Proceedings Act.
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4. The Claimants statement of case relative to false imprisonment discloses no reasonable grounds for bringing the claim as the Claimant was serving a sentence imposed by a judicial officer and prior to same was remanded in custody at the discretion of a judicial officer. Further, the claim relative to this cause of action is statute barred as the cause of action if any, arose more than six years prior to the filing of this claim and the claim is therefore an abuse of process of the Court.
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5. The claimants statement of case relative to the breach of his right to a fair trial discloses no reasonable grounds for bringing the claim as any error resulting in the conviction and sentencing of the Claimant was rectified on appeal…”
An affidavit in support was filed on December 24, 2019. However, before the application could be heard, the Claimant's Attorneys filed a Further Amended Claim Form on November 18, 2020. The Further Amended Claim Form deleted the claims for damages for wrongful arrest, wrongful conviction and imprisonment. They now claim damages for: Malicious Prosecution, False Imprisonment and Loss of Family Life.
On March 25, 2006 the Defendant was arrested for the offence of Murder after he was identified by an eyewitness. He was subsequently tried and convicted in the Home Circuit Court on the 19 th of June 2013 and sentenced to thirty (30) years in prison.
On the 4th of July 2013, grounds of appeal were filed against the conviction and sentence. The grounds of appeal were:
“a) That the prosecution witnesses wrongfully identified the Claimant as the person or among the persons who committed the alleged crime.
b) That the prosecution failed to produce in court any form of material, forensic or scientific evidence to link the Claimant to the alleged crime.
c) That the evidence and testimonies upon which the learned trial judge relied to direct the jury lacks facts and credibility thus rendering the guilty verdict unsafe in all circumstances of the case.
d) That based on the conflicting and contrary testimonies as presented by the prosecution, it is evident that the Claimant was wrongfully convicted for a crime he knew nothing about.”
On the 10th of July 2017, The Court of Appeal allowed the Claimant's appeal, quashed his conviction, set aside the sentence and judgment and entered a verdict of acquittal.
As a consequence of his conviction being quashed Mr. Graham filed a Claim Form and Particulars of Claim on May 15, 2019, an Amended Claim Form and an Amended Particulars of Claim on November 11, 2019 and a Further Amended Claim Form on November 18, 2020 seeking the following:
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“a. damages for:
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(i) Malicious Prosecution
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(ii) False Imprisonment, and
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(iii) Loss of family life.
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b. Aggravated Damaged
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c. Interest on damages…”
The issues as identified by the Applicant/Defendant are:
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a. whether the Claimant's statement of case discloses any reasonable grounds for bringing the claim and as such ought to be struck out as a consequence of the claim being brought against a judicial officer
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b. whether the claim for false imprisonment is statute barred.
They submitted in relation to issue 1, as identified by them, that they recognised the Courts power to strike out pursuant to Rule 26.3(1). See Construction Developers Association Limited v Urban Development Corporation, Supreme Court of Judicature of Jamaica, Claim Nos 2008HCV02213 and HCV02214. However, they acknowledged that the Courts power should only be exercised in the most severe of cases and in giving consideration to such an application should contemplate the implications of striking out the statement of case. Reliance was placed on S&T Distributors Limited and S&T Limited v CIBC Jamaica Limited and Royal & Sun Alliance, Court of Appeal, SCCA 12/04, delivered July 31, 2007.
It was submitted that the Court in exercising its discretion to strike out a statement of case is entitled to look at the pleadings to see whether they disclose a cause of action. They commended to the Court the cases of Sebol Limited and Another, v Ken Tomlinson (as the Receiver of Western Cement Company Limited) and others, Supreme Court of Jamaica, Claim No. HCV 2526/2004, delivered on October 9, 2007 and Sebol Limited and Another, v Ken Tomlinson (as the Receiver of Western Cement Company Limited) and others, Court of Appeal, SCCA 115/2007, delivered December 12, 2008 and Drummond Jackson v British Medical Association and Others [1970] 1 WLR 688.
They agreed that the claims for false imprisonment and malicious prosecution are known causes of action in Jamaica. However, whether there are reasonable grounds for bringing them had to be assessed.
The pleadings filed by the Claimant, they argued were levelled at a Judge of the Supreme Court discharging her duties in the criminal jurisdiction. As such they cited section 3 (1) and (5) of the Crown Proceedings Act, CPA. Reliance was also placed on Sirros v Moore and Others [1974] 3 ALL ER 776. Counsel submitted that the proper course of action from an order of a judge was to appeal and the Claimant availed himself of the avenue. They referred the Court to the Court of Appeal decision of Vernaldo Graham v R [2017] JMCA Crim. 30. As a consequence, the claim cannot be maintained against the Judge.
Counsel cited the case of Peter Flemming v Det. Cpl Myers and the Attorney General (1989) 26 JLR 525. In particular, the court was referred to page 527, paragraph B of the judgement where Carey, P stated the requirements in an action of false imprisonment. However, as it pertains to a claim against a police officer, the Claimant had to satisfy section 33 of the Constabulary Force Act, CFA. On an examination of the pleadings the Claimant has so to do. On this ground, they highlighted the fact that the tort of false imprisonment begins the moment of arrest and ends when a person is placed before a judge. As such the claim cannot be maintained. Delroy Thompson v The Attorney General of Jamaica and Det. Taylor [2018] JMSC Civ. 78.
In relation this issue, counsel also relied on the case of Delroy Thompson v The Attorney General. He submitted that there were no reasonable grounds for bringing the claim. He utilized the four elements required to prove malicious prosecution as outlined by Anderson J and concluded that in the case at bar there were no reasonable grounds for the bringing the claim based on the following: “(1) the judge was not the person who laid the charges and prosecuted the Claimant; (2) the Judge was immune from liability based on the authority of Sirros v Moore (3) there are no allegations within the pleadings against the person who laid the charges… and (4) there are no allegations against the prosecution.
It was submitted that a claim for False Imprisonment which is not filed within six years is statute barred. See The Attorney General v Arlene Martin [2017] JMCA Civ 24 and section 3 of the English Limitation Act of 1623 21 James 1 Cal 16. Counsel argued that Mr. Graham was arrested on March 25, 2006 and although no evidence was presented in relation to when he was first brought before the Court, the evidence is that he was convicted on June 19, 2013. It can therefore be inferred from the pleadings that Mr. Graham would have been placed before a court prior to his trial and as such was subjected to judicial remand. As such any period of imprisonment without lawful justification would have preceded the trial when he was subjected to judicial remand. The claim is therefore statute barred.
The Respondent/Claimant identified five issues, namely:
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1. “Whether the Defendant is liable in tort for false imprisonment in all the circumstances of the case.
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2. Whether the Defendant is liable in tort for malicious prosecution in all the circumstances of the case.
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3. Whether the nature of the tortious acts makes the defendant liable to pay aggravated damages.
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4. Whether the Defendant is liable to pay damages for the loss of family life suffered by the Claimant.
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5. Whether the...
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