Williams (Neville) v Janine Fender, Carlton Henry and Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: Sinclair-Haynes J
• Judgment Date: 07 November 2009
• Judgment citation (vLex): [2009] 7 JJC 0102
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2005 HCV 00126
• Date: 07 November 2009

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2005 HCV 00126

BETWEEN

NEVILLE WILLIAMS

CLAIMANT

AND

JANINE FENDER

1 ^st DEFENDANT

AND

CARLTON HENRY

2 ^nd DEFENDANT

AND

THE ATTORNEY GENERAL OF JAMAICA

3 ^rd DEFENDANT

^st

^{nd rd}

DAMAGES - Malicious prosecution - False imprisonment - Negligence - Whether complainant can be considered Prosecutor - Whether claim against Police Officer can be sustained

Sinclair-Haynes J

1 On November 5, 2000, Mr. Neville Williams (claimant) attended the Irish Town Police Station as a result of receiving certain information. There he was identified by Miss Janine Fender (first defendant), as the person who had assaulted her with a hard object and raped her the night before.

2 Consequent upon Miss Fender's allegations he was arrested by Detective Constable Carlton Henry, now Detective Sergeant (second defendant) for the offences of Rape and Assault Occasioning Bodily Harm. He was handcuffed to a chair at the station for about half an hour. Mr. Williams was remanded in custody at the Constant Spring Police Station and the Remand Centre for four months before he was granted bail.

3 Whilst on bail he was ordered to report to the Irish Town Police Station on Mondays, Wednesdays and Fridays.

4 There was a Preliminary Enquiry into the matter and he was committed to stand trial for the offences for which he was charged. He was tried and convicted of the offences on the 27 ^th day of May 2001.

5 On May 28, 2001, he was sentenced to seven years imprisonment for the offence of Rape and to three years for the offence of Assault Occasioning Bodily Harm. Both sentences were to run concurrently.

6 Whilst he was incarcerated at the General Penitentiary, he was stabbed on his arm and bitten by a fellow inmate. He was in constant fear for his life. He lost contact with his girlfriend and infant daughter because his girlfriend stopped visiting him. His time behind bars was torturous and horrifying.

7 Mr. Williams steadfastly maintained his innocence, and an application for leave to appeal his conviction was made on his behalf. It was refused. He expressed his willingness to undergo DNA testing in order to prove his innocence.

8 Contact was made with the Police Forensic Laboratory on May 20, 2003 for DNA testing. Mrs. Andrea Bickhoff-Benjamin, his then attorney, was informed by Miss Sheron Brydson, Government Forensic Analyst, that the DNA tests were carried out before on the samples that were taken from Miss Fender and Mr. Williams. Miss Brydson also informed Mrs. Bickhoff-Benjamin that the results of those tests had been available since January 2001.

9 The assistance of the office of the Director of Public Prosecution's (DPP) was sought to obtain the results. On June 11, 2003, Mrs. Bickhoff-Benjamin received from the Director of Public Prosecution's office, faxed copies of documents entitled "DNA Typing Results" and "Estimates of Probabilities" which were dated January 8, 2001.

10 As a result, an application for leave to appeal and notice of the grounds of appeal were filed in the Court of Appeal.

11 The appeal was heard on November 23, 2003. The court granted an application to admit further evidence and, as a result, the evidence of Miss Sheron Brydson was heard on the "DNA Typing Results" and "Estimates of Probabilities." She told the court that the DNA profile derived from the samples taken from the panty was different and did not match the DNA profile taken from the underpants. Consequently, Mr. Williams' conviction was quashed and a verdict of acquittal was entered on November 5, 2003. The decision was unanimous. He was released from the General Penitentiary having served three years of his sentence.

12 Miss Paula Llewellyn, Senior Director of Public Prosecutions, as she then was, represented the office of the DPP in an interview on the television programme, "Impact," on which she expressed sympathy for Mr. Williams and stated that the incident was regrettable and that the DPP's office took full responsibility.

13 On January 14, 2005, Mr. Williams instituted proceedings against Miss Janine Fender (first defendant), Constable Carlton Henry (second defendant) and the Attorney General (third defendant). The Attorney General is sued pursuant to the provisions of the Crown Proceedings Act. Mr. Williams seeks Damages for Malicious Prosecution, False Imprisonment, Aggravated Damages, Exemplary Damages and Interest.

14 Mr Williams' Version

15 Mr. Williams now resides in Canada. He contends that at the time of his arrest, he worked in construction and as a mechanic; and Miss Fender was not a student as she stated but an occasional worker. He asserts that since 1999 the relationship between himself and Miss Fender has been acrimonious because Miss Fender assaulted his heavily pregnant girlfriend and he retaliated by hitting her with a stick.

16 He contends further that:

• i) Miss Fender concocted the identification evidence to the effect that he assaulted her with a hard object and raped her on the night of November 5, 2000;

• ii) whilst at the station, she reminded him that she had told him that she was going to f... him up;

• iii) she knowingly gave false evidence with the intention that Mr. Williams would be prosecuted for the offences;

• iv) she was involved in a relationship with Sergeant Henry;

• v) Sergeant Henry was aware or should have been aware of the fact that Miss Fender's evidence was concocted. Without regard to his responsibilities and obligations as a police officer, he continued with the prosecution of Mr. Williams with the knowledge that he would be convicted for the offence.

17 As a consequence, Mr Williams:

• 1. was wrongfully imprisoned and deprived of his liberty;

• 2. suffered injury to his character and his reputation;

• 3. suffered considerable mental and physical pain and anguish;

• 4. has been put to considerable trouble, expense and inconvenience; and

• 5 has sustained loss and damage.

18 The claimant further contends that Sergeant Henry was negligent in the conduct of his investigation in that he:

• a. neglected and/or refused to enquire into and/or retrieve the results of the DNA testing;

• b. failed to perform his investigation to the standard required of an Investigating Officer;

• c. failed to enquire into and/or obtain the vaginal swab of Miss Janine Fender; and

• d. failed to adequately investigate the complaint made by Miss Fender.

19 Consequently, he:

• i) faced the fear and anxiety of a groundless prosecution and conviction against him;

• ii) suffered grave financial constraints in paying for the services of an attorney in a lengthy court battle and an Appeal;

• iii) lost contact, as a result of his incarceration, with his daughter and has not to date been able to find her; and

• v) was deprived of his liberty for three years.

20 Miss Janine Fender's Version

21 Miss Janine Fender insists that she was raped and assaulted by Mr. Williams and refutes Mr. Williams' claim that he worked as a mechanic and in construction. She insists that she was at the material time a student of Excelsior. She denies that she had a relationship with Sergeant Henry. She asserts that she used a stone to hit his girlfriend but the girlfriend was not heavily pregnant. Mr. Williams boxed her but he later apologized and the relationship between them has since been amiable.

22 She is adamant that she never knew Detective Sergeant Henry before and that she had no knowledge of DNA results being withheld. She strenuously denies that she ever told Mr. Williams in the presence of Sergeant Henry she was going to "f... him up."

23 Sergeant Henry's Version

24 Sergeant Henry repudiates the claim of Mr. Williams that he acted maliciously/or without reasonable and probable cause or negligently. He also trenchantly denies that he had a relationship with Miss Fender. He denies hearing Miss Fender use the words attributed to her by Mr. Williams.

25 Submissions by Mr. Andre Earle on behalf of the Claimant

26 Mr. Earle submits that the arrest and detention of Mr. Williams without bail were unreasonable and without legal justification. He relies on Peter Flemming v Sergeant Myers and The Attorney General of Jamaica (1989) 26 JLR 525. He submits that the claimant has satisfied all the ingredients of Malicious Prosecution. He has proven that:

• a. he has been prosecuted on a criminal charge by the defendant before a competent court;

• b. the proceedings against him were terminated in his favour;

• c. the defendant did not prosecute the claimant to further the ends of justice, but maliciously and with improper motives. He relies on Kenneth Morgan v The Attorney General of Jamaica suit no. CL 1995 M/070; and

• d. there is an absence of reasonable and probable cause for the proceedings. He submits that the fact that the DNA results were available from as early as January 8, 2001 meant that the continued prosecution was both without reasonable and probable cause and was carried on with an improper motive. He relies on Dallison v Caffery [1964] 2 All ER 610 in which Lord Denning MR (as he then was) at page 618 stated the duty of prosecuting authority as follows:

  "If he knows of a credible witness who can speak to the material facts which tends to show the prisoner to be innocent, he must either call that witness himself or make the statement available to the defence. It would be highly reprehensible to conceal from the court such evidence that such witness can give.''

27 He further submits that the principle is extended to the police force because the DPP acts on the advice of investigators of the police force. The principle may also be applied to evidence that if...