Winston Hemans v Special Constable Andrew Anderson and Another

• Jurisdiction: Jamaica
• Judge: Evan Brown J
• Judgment Date: 22 May 2015
• Neutral Citation: [2015] JMSC Civ 94
• Docket Number: CLAIM NO. 2007 HCV 4116
• Court: Supreme Court (Jamaica)
• Date: 22 May 2015

[2015] JMSC Civ 94

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA IN THE CIVIL DIVISION

CLAIM NO. 2007 HCV 4116

Between

Winston Hemans

Claimant

and

Andrew Anderson Special Constable

1st Defendant

The Attorney General Of Jamaica

2nd Defendant

Mr. Norman Hill QC and Mr. Raymond Samuels instructed by Norman O. Samuels for the claimant.

Miss Cheryl-Lee Bolton instructed by the Director of State Proceedings for the 1 ^st and 2 ^nd defendants.

Malicious prosecution — Claimant charged with failing to leave the airport — Information withdrawn — False imprisonment — claimant in custody for five and a half hours — Assault — Whether accosting amounts to an assault — Loss of earnings — Unlawful user.

Evan Brown J

Introduction and Background

1 On the 19 ^th July, 2005 about noon, the claimant drove his Toyota Corolla motor car to Norman Manley International Airport (NMIA) and parked it. He was walking at the arrivals area when he was approached from behind by the 1 ^st defendant. The 1 ^st defendant then escorted the claimant to the police station located at the NMIA. At the police station, the claimant was arrested and charged with the offence of failing to leave the airport. He was placed in custody. There he remained for a number of hours until he was granted bail in his own recognizance later that day.

2 The claimant was bailed to attend the Resident Magistrate's Court for the Corporate Area on the 21 ^st July, 2005. His case came up for trial on the 4 ^th August and then on the 1 ^st September, 2005. When it came up for trial on the 1 ^st September, 2005 before His Hon. Mr. Martin Gayle, Resident Magistrate (as he then was) the Information charging the claimant was withdrawn.

3 It was from those circumstances that the claim against the 1 ^st and 2 ^nd defendants arose. The claimant claimed damages for false imprisonment, assault and malicious prosecution. Having heard the claimant and the defendant, I give judgment for the claimant. My reasons for so deciding appear below.

Case for the claimant

4 The claimant gave that evidence he was a courier for and on behalf of Air Jamaica Limited and other entities. Acting as such, he delivered documents and other items for Air Jamaica Limited to the United States Embassy and the British High Commission. He would also transport, on behalf of Air Jamaica, delayed passengers and members of their staff. Although the claimant's motor vehicle was so engaged, it was neither insured nor registered for those purposes.

5 On the day of the incident he made two trips to the NMIA. At about 9 am he had picked up a passport at Air Jamaica's customer service department. He transported that document to the US Embassy. His second trip to the airport was to deliver the signed letter acknowledging receipt of the passport to Air Jamaica.

6 Upon his arrival at the airport, he parked his car and left for Air Jamaica's customer service department at the arrivals area. At that time, he had in his possession four Air Jamaica envelops. One in his hand and three in his pants pocket. The one in his hand contained the signed acknowledgement letter. Each of the other three had a cheque from Air Jamaica, bearing his name.

7 When he was accosted by the 1 ^st defendant, the 1 ^st defendant took all the envelopes from him. The 1 ^st defendant also took from him J$200, US$50 and CI$20. The 1 ^st defendant looked at the three envelopes which contained the cheques then returned them to the claimant. The 1 ^st defendant initially kept possession of the envelope with the ‘documents’ but returned it to the claimant when the claimant told him it belonged to Air Jamaica. The 1 ^st defendant also kept possession of the cash. That was later returned to the claimant at the Corporate Area Resident Magistrate's Court.

8 The claimant was questioned about his arrangement with Air Jamaica during cross-examination. Air Jamaica would pay him per task performed. That is, each task was individually priced. To receive payment, Air Jamaica first issued the claimant with a voucher. He would tender that voucher and be issued with a cheque.

Case for the defendants

9 The 1 ^st defendant, a Corporal in the JCF but a Special Constable at the time of the incident, was on special duties at the NMIA. Among his duties was the interdiction of illegal taxi operators. The 1 ^st defendant said in his witness statement that at about 12.51pm he observed the claimant at the arrival West Terminal area. He described the claimant as being clad in blue jeans and a shirt.

10 The claimant, the 1 ^st defendant said, was illegally soliciting passengers. By illegally soliciting passengers, he said he meant that the claimant was loading the vehicle and collecting money. Consequently, he told the claimant of the offence of soliciting passengers without a licence and ordered him to leave the airport. Upon being so ordered, the claimant walked away.

11 Later that day, the 1 ^st defendant again saw the claimant illegally soliciting passengers at the airport. It was at that time that he arrested and charged the claimant for the offence of failing to leave the airport. His search of the claimant revealed money that the claimant told him was collected from soliciting passengers. The 1 ^st defendant asserted that at the time of making the arrest he was acting as a police officer without any malice or prejudice.

Issue for determination

12 The sole issue for my determination is whether the 1 ^st defendant had reasonable or probable cause to have arrested and charged the claimant.

Applicable law

Malicious Prosecution

13 Since the claims for assault and false imprisonment flow from the institution of the prosecution, it is convenient to treat with the latter first. For the claimant to succeed in his claim for malicious prosecution, he must establish, on a balance of probabilities, the following four ingredients:

(a) that the law was set in motion against him on a charge of a criminal offence;

(b) that he was either acquitted or that it was otherwise determined in his favour;

(c) that the 1 ^st defendant set the law in motion without reasonable and probable cause; and

(d) that in setting the law in motion the 1 ^st defendant was actuated by malice

(See Wills v Voisin (1963) 6 WIR 50, 57 )

14 In respect of ingredients (c) and (d), I bear in mind the gloss of the local court of appeal in Peter Flemming v Det. Cpl. Myers and The Attorney-General (1989) 26 JLR 525 ( Flemming v Myers ). At page 535 Forte JA said:

‘In the case of Glinski v McIver [1962] W.L.R. 856 , Lord Delvin in his speech affirmed that at common law in order to succeed in an action for malicious prosecution: ‘the plaintiff must prove both that the defendant was actuated by malice and that he had no reasonable and probable cause for prosecuting.’ However, by virtue of section 33 of the Constabulary Force Act (supra) in Jamaica, a plaintiff suing a police officer for malicious prosecution as a result of an act done in the execution of his duty is required to prove that the defendant acted either maliciously or without reasonable and probable cause.’

Findings and analysis

15 Both sides were agreed that it was the 1 ^st defendant who set the law in motion against the claimant, acting as he was, on his own volition. Eventually, there was no contest that the 1 ^st defendant charged the claimant for a criminal offence. The first ingredient is therefore well made out.

16 I now turn my attention to the second ingredient, was the charged determined in the claimant's favour? The claimant averred in his particulars of claim that the charged was dismissed without him being called upon to state his defence. That averment conveys the impression that a trial took place which ended either mid-stream or at the end of the case for the prosecution. However, no such evidence was led before me.

17 What was proved, was that the information charging the claimant with the offence was withdrawn. The Number 1 Information containing the record of the proceedings was admitted into evidence. The complete endorsement on the record is ‘information withdrawn’. It is therefore clear that there was no determination upon the merits of the case. No trial took place.

18 That no trial took place however is only a moot point. For whatever reason, the crown decided not to proceed with the charge against the claimant. Technically, an Information that has been withdrawn, has within it, the seeds of germination since it was not a disposal on the merits. However, as the learned authors of Clerk & Lindsell on Torts 19 ^th ed. paragraph 16–19 have said, what is important is that proceedings appear to have been brought to a ‘legal end’. More importantly, ‘the end need not be a final and conclusive one. So, it is enough if the proceedings have been abandoned without being brought to a formal end’ (See Clerk & Lindsell op.cit.). After the passage of almost ten years the proceedings can be deemed abandoned. Therefore, I incline to the view that the withdrawal of the Information was a determination in favour of the claimant.

19 That takes me to a discussion of the third ingredient. Did the 1 ^st defendant have reasonable or probable cause when he arrested and charge the claimant for failing to leave the airport? The case for the claimant, was that he was intercepted at the arrival area as he went about his lawful business and, without rhyme or reason ordered to the police station where he was arrested and charged. If that is accepted, the 1 ^st defendant would have acted without reasonable or probable cause. Was it as the claimant alleged?

20 In his witness statement the claimant said when the first defendant demanded that he accompany him to the police station, he asked the 1 ^st defendant the reason for doing so. To that inquiry,...