The West Indian Reports/Volume 68 /Belfonte (Damian) v Attorney-General - (2005) 68 WIR 413 (2005) 68 WIR 413

Belfonte (Damian) v Attorney-GeneralCOURT OF APEAL OF TRINIDAD AND TOBAGO SHARMA CJ, WARNER AND ARCHIE JJA 3 JUNE 2005 Fundamental rights and freedoms - Redress - Availability of alternative adequate means of redress Alternative means of redress not precluding constitutional motion - Discretion of court to refuse constitutional relief where parallel remedy available - Special feature in constitutional claim - Existence of constitutional claim together with claims for which common-law remedy available - Need for court to be flexible and avoid striking out constitutional claim - Rules of the Supreme Court 1975 [T], Ord 2 Where complaint is made of a breach of a constitutional right, it is an abuse of process if an applicant who has a parallel common-law remedy issues a constitutional motion for redress unless there is a special feature which indicates that in the particular circumstances the common-law remedy would not be adequate. Such special feature may be found in the existence of a claim for breaches of several rights (some being commonlaw rights and protection for others being only available under the Constitution); in such a case it is not fair, convenient or conducive to the proper administration of justice to require the applicant to abandon his constitutional remedy or to file a separate writ for the vindication of his common-law rights. Thakur Persad Jaroo v Attorney-General (2002) 59 WIR 519 and Attorney-General v Siewchand Ramanoop (2005) 66 WIR 334 applied. Per curiam. A trial judge should make every effort to save proceedings commenced by constitutional motion where it is just and reasonable so to do. Matters of procedure should be kept flexible in order to do justice between the parties (see Rules of the Supreme Court 1975, Ord 2), and striking-out for an abuse of process must be a last resort. Cases referred to in the judgment of the court Attorney-General v McLeod (1984) 32 WIR 450, [1984] 1 All ER 694, [1984] 1 WLR 522, [1985] LRC (Const) 81, PC. (2005) 68 WIR 413 at 414 Attorney-General v Siewchand Ramanoop [2005] UKPC 15, 66 WIR 334, PC. Attorney-General v Whiteman (1991) 39 WIR 397, [1991] 2 AC 240, [1992] 2 All ER 924, [1991] 2 WLR 1200, PC. Chokolingo v Attorney-General (1980) 32 WIR 354, [1981] 1 All ER 244, [1981] 1 WLR 106, PC.

Hinds v Attorney-General (No 2) [2001] UKPC 56, 59 WIR at p 99, [2002] 1 AC 584, [2002] 2 WLR 470, PC. Kemrajh Harrikissoon v Attorney-General (1979) 31 WIR 348, [1980] AC 265, [1979] 3 WLR 62, PC. Observer Publications Ltd v Matthew [2001] UKPC 11, 58 WIR 188, PC. Rajesh Ramsarran v Attorney-General (unreported) civil appeal 108 of 2000, Trinidad and Tobago CA; reversed on appeal, [2005] UKPC 8, 66 WIR 280, PC. Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310, [1979] AC 385, [1978] 2 All ER 670, [1978] 2 WLR 902, PC. Thakur Persad Jaroo v Attorney-General [2002] UKPC 5, 59 WIR 519, [2002] 1 AC 871, [2002] 2 WLR 705, PC. Thornhill v Attorney-General (1979) 31 WIR 498, [1981] AC 61, [1980] 2 WLR 510, PC. Appeal Damian Belfonte appealed to the Court of Appeal of Trinidad and Tobago (civil appeal 84 of 2004) against the decision of Tiwary-Reddy J on 11 June 2004 dismissing his claim for a breach of his rights under s 5(2)(c) of the Constitution of Trinidad and Tobago and other claims for breaches of his constitutional rights on the ground that the filing of a constitutional motion was an abuse of process as parallel common-law remedies were available to him. The facts and the grounds of appeal are set out in the judgment of the court delivered by Sharma CJ. Dr F Ramsahoye SC and A Ramlogan for the appellant. T Thorne and K Seenath for the Attorney-General.

Sharma CJ delivered the judgment of the court. INTRODUCTION [1] This appeal is against the decision of a trial judge, Tiwary-Reddy J, made on 11 June 2004 which held firstly that, in the circumstances of this case, Damian Belfonte (the appellant) had no constitutional right to be informed of his right to retain and instruct counsel and, secondly, that there was an abuse of process due to the appellant's failure to pursue a civil (2005) 68 WIR 413 at 415 action for the torts of unlawful arrest, false imprisonment and trespass to the person. [2] The main issues for determination on this appeal are whether the appellant had a right to be informed of his right to counsel upon arrest for non-payment of fines, and whether the appellant should be denied relief in bringing an originating motion against the State (the respondent) pursuant to s 14 of the Constitution (for breach of fundamental human rights) by virtue of there being a parallel remedy in private law.

BACKGROUND [3] The appellant filed a constitutional motion against the State on 21 June 1999 seeking relief for breaches of his fundamental rights while incarcerated during the period 3 to 25 November 1998. [4] The appellant was arrested on 3 November 1998 for the non-payment of fines arising out of narcotic offences previously committed. The fines (amounting in one instance to a balance of $350 and in another instance to $800) remained unpaid, despite the fact that the appellant had secured a banker's cheque for the clerk of the peace in the sum of $1150. An officer Brown held the cheque for one year and the money was never paid to the court, unknown to the appellant. While the cheque was in the officer's possession, the appellant was arrested and imprisoned by other officers. The appellant was eventually released after his mother retrieved the cheque from officer Brown and paid the outstanding fines. [5] At the trial, officer Brown denied ever having received a cheque from the appellant. The appellant challenged his arrest, detention, and/or imprisonment by servants of the State from 3 to 25 November 1998. The appellant claimed he had been arrested without being informed of his right to retain an attorney. The undisputed or unchallenged issue in the court below, however, was that the appellant during his imprisonment at the Port-of-Spain prison, had his Rastafarian 'dreadlocks' shorn off against his will and was subjected to a meat diet which was contrary to his religious beliefs and practices. FINDINGS OF THE TRIAL JUDGE [6] The findings of the trial judge (not challenged in this appeal) were as follows: (i) the appellant was lawfully arrested on 3 November 1998 under a valid warrant for non-payment of fines; (ii) none of the arresting police officers had informed the appellant of his right to retain counsel; (iii) the above notwithstanding, based on Rajesh Ramsarran v Attorney-General (unreported) there was no breach of the appellant's right to be informed of his right to consult an attorney upon his arrest, in the circumstances of this case; (2005) 68 WIR 413 at 416 (iv) the unchallenged evidence was that the appellant suffered while in prison the removal of his 'dreadlocks' hair against his will; he was beaten and also deprived of his vegetarian diet; these actions denied the appellant his fundamental right to security of the person and freedom of conscience and religious beliefs; (v) parallel remedies in tort, such as assault and battery, were also associated with these unlawful acts; and (vi) on the basis of Thakur Persad Jaroo v Attorney-General [2002] UKPC 5, 59 WIR 519, the appellant should have made use of the available common-law procedure rather than pursue constitutional proceedings which were only to be invoked in exceptional circumstances, and therefore the proceedings were an abuse of process. [7] The motion was therefore dismissed with costs. ISSUES ON APPEAL Breach of fundamental rights

[8] On the first issue, the primary finding by Tiwary-Reddy J was that the appellant was never informed of his right to consult an attorney upon arrest. She observed:'I find it passing strange that the [appellant] is suddenly taken into custody while he is ostensibly selling handbags in the centre of the town of Sangre Grande and would not ask to contact a family member or relative or friend, when he is offered such an opportunity. I do not accept that any of the police officers told the [appellant] of these rights at any time after his arrest.'

However, basing her reasoning on the authority of Rajesh Ramsarran v Attorney-General, the judge decided that the appellant's right to consult an attorney had not been breached. In that case the local Court of Appeal held that the rights under consideration protected by the Constitution were confined to the pre-trial stage only. [9] The Privy Council, however, reversed the Ramsarran judgment (Rajesh Ramsarran v Attorney-General [2005] UKPC 8, 66 WIR 280) so that it is now law that a person's fundamental human rights are breached when he is not informed of his right to consult an attorney upon arrest. It was there confirmed that the same rights (to consult) are enjoyed by a person arrested for the non-payment of a fine. The Board rejected the view that s 5(2)(c) of the Constitution was designed only for persons arrested or detained during an investigation. Section 5(2) so far as material reads: (2005) 68 WIR 413 at 417'Without prejudice to subsection (1), but subject to this chapter and to section 54, Parliament may not - ... (c) deprive a person who has been arrested or detained (i) of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention; (ii) of the right to retain and instruct without delay, a legal adviser of his own choice and to hold communication with him ...'

The opinion of the Board was that an examination of previous decisions such as Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310, Thornhill v Attorney-General (1979) 31 WIR 498 and Attorney-General v Whiteman (1991) 39 WIR 397 confirmed that it was the right of a person arrested on suspicion of having committed a criminal offence, to retain and instruct a legal adviser and to hold communication with him. This right was protected by the Constitution, both on a proper construction of s 5(2)(c) and on the basis of settled practice embodied in the Judges' Rules (Rajesh Ramsarran v AttorneyGeneral (2005) 66 WIR 280 at pp 283 and 284, para [6]). [10] According to the Board in the Ramsarran case, the purpose of constitutional protection was to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence, have an effective and practical means of securing their release as soon as possible. Their lordships there reasoned (at p 286, para [11]):'... If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for the payment of the fine and could have made a speedy habeas corpus application, if this did not secure the appellant's early release.'

Similarly, in this instance, even though the appellant had not paid the fine at the time of the arrest, had he been allowed the benefit of the legal advice, the court would have been alerted as to the time when the cheque was eventually paid. In light of the Judges' Rules and the Professional Code of Ethics as well as the constitutional provisions, it is clear that the appellant was deprived of his right to be informed of his right to

consult an attorney on his arrest. The judge therefore erred in finding that the appellant's right to be informed of his right to counsel was not infringed. Abuse of process [11] The second issue questions the right of the appellant to proceed by way of originating motion under s 14 of the Constitution. It is the appellant's contention that there is a right to proceed by originating motion under s 14 of the Constitution and to secure redress where an (2005) 68 WIR 413 at 418 applicant can prove a contravention or breach of his fundamental rights. This right is an entrenched constitutional right and subsists despite the availability of any other remedy. [12] In Thakur Persad Jaroo v Attorney-General (2002) 59 WIR 519, the Board made the point that the right to apply to the High Court under s 14(1) of the Constitution should be exercised only in exceptional circumstances where a parallel remedy exists. There the Board repeated the warning by Lord Diplock in Kemrajh Harrikissoon v Attorney-General (1979) 31 WIR 348 that the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not sufficient to invoke the constitutional jurisdiction of the court. If it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court and is being made (at p 349; cited with approval in Thakur Persad Jaroo's case 59 WIR 519 at p 532, para [29]) '... solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom,'

then it can be said that there was an abuse of process. Kemrajh Harrikissoon v Attorney-General was a case in which there was no contravention of any fundamental right guaranteed under the Constitution. There was at the time a perceived tactical advantage to be gained by utilising the procedure under the Constitution because constitutional motions were usually afforded priority in listing for trial. Of course, the way to address that is simply to assess matters on a caseby-case basis and afford each case such priority as it deserves. No question of a parallel remedy arose on the facts alleged because they disclosed no breach of any constitutional right. Lord Diplock's observations have been cited in several cases that followed. They have been interpreted as extending the concept of abuse of process beyond the simple case where no constitutional right has been infringed. In Chokolingo v Attorney-General (1980) 32 WIR 354, the applicant challenged his committal to prison after a contempt hearing. The Board found that he had not been denied 'due process' nor the 'protection of the law' since the law referred to in the Constitution was the law as interpreted and applied by the courts. Lord Diplock in giving the reasons for the decision pointed out that to hold otherwise would be to give the applicant several bites at the cherry (that is parallel and cumulative remedies) since the right of redress afforded under the Constitution was expressed (at p 359) to be 'without prejudice to any other action with respect to the same matter which is lawfully available'; see also s 14(1) of the Republican Constitution. As in Kemrajh Harrikissoon, there was no infringement of any constitutional right in Chokolingo. (2005) 68 WIR 413 at 419 In Ramesh Lawrence Maharaj v Attorney-General of Trinidad and Tobago (No 2) (1978) 30 WIR 310 the question for the decision of the Board was whether a judicial error involving a breach of natural justice could amount to a denial of 'due process' in contravention of the Constitution. The Board decided that it was

appropriate to seek constitutional redress if the result of the breach had been a deprivation of life, liberty, security of the person or enjoyment of property. In that case, the deprivation of liberty had already occurred. Lord Diplock made the observation (30 WIR at p 321) that, in a case where a party to legal proceedings who alleges that the rules of natural justice have been infringed seeks collateral relief by constitutional motion instead of pursuing his right of appeal, the court had power to prevent misuse of its process by, for example, staying the motion until the conclusion of the original proceedings. [13] In the present case there were no other extant proceedings. In so far as the deprivation of liberty was concerned, it did not flow from a wrongful arrest. The trial judge found that the arrest was lawful and there has been no cross-appeal against that finding. The deprivation of liberty flowed from the fact that he remained in custody for a longer period than was necessary (or reasonable) because of the failure of the police to inform him of his right to an attorney. This was a breach of a constitutional right for which there had previously been no tortious remedy at common law. It is not a liability in tort at all; it is a liability of the State in public law (see 30 WIR at p 321). There is therefore no collateral remedy available to the appellant. [14] In Attorney-General v McLeod (1984) 32 WIR 450, Lord Diplock reiterated the need for vigilance in ensuring that the court's process was not misused. He cited Kemrajh Harrikissoon and Chokolingo as two specific examples of the type of abuse to be guarded against (see 32 WIR at p 458):Where the application is made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for unlawful administrative action, which involves no contravention of any human right or fundamental freedom; Where the application is used as a means of a collateral attack upon a judgment of a court acting within its jurisdiction.

As in McLeod, the present case does not fall into either of the above categories. Based on the trial judge's finding of fact, there was a contravention of the appellant's fundamental rights. That has not been challenged. Her decision to dismiss the motion rested upon her view that an adequate parallel remedies existed. [15] In Hinds v Attorney-General (No 2) [2001] UKPC 56, 59 WIR at p 99, the appellant unsuccessfully argued during his appeal against conviction that his right to a fair hearing had been infringed by the refusal of the judge to grant him a legal aid certificate. He then filed a separate constitutional motion seeking relief on that ground. In rejecting his appeal (2005) 68 WIR 413 at 420 the Board observed (at p 114, para [24]) that Lord Diplock's caution remained pertinent 'a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or judicial decision, nor an additional means where such a challenge, based on constitutional grounds, has been made and rejected.'

In this case there has been no previous challenge or judicial decision and the principle of res judicata does not arise. [16] The cases which stress the need to guard against abuse of the procedure for redress under the Constitution are in sharp contrast to those in which there has been a clear infringement of a constitutional right. In Observer Publications Ltd v Matthew [2001] UKPC 11, 58 WIR 188 at p 206, para [53], the Board observed that the last words of the passage from Kemrajh Harrikissoon quoted above were not to be brushed aside:'...the image of the Constitution as secluded behind closed doors is not one which their lordships adopt. Nor would it be

right to think of the Constitution as if it were aloof or, in the famous phrase of Holmes J, "a brooding presence in the sky". On the contrary, human rights guaranteed in the Constitution of Antigua and Barbuda are intended to be a major influence upon the practical administration of the law. Their enforcement cannot be reserved for cases in which it is not even arguable that an alternative remedy is available. As Lord Steyn said, delivering the advice of the Privy Council in Ahnee v Director of Public Prosecutions [1999] 2 AC 294 at 307 "... bona fide resort to rights under the Constitution ought not to be discouraged". Frivolous, vexatious or contrived invocations of the facility of constitutional redress are certainly to be repelled.'

[17] The opinion of the Board in Thakur Persad Jaroo (2002) 59 WIR 519 has to be understood in that light. Thakur Persad Jaroo was a case where there was a parallel remedy. Their lordships advised that applicants should first consider the true nature of the right allegedly contravened (see p 535, para [39]). If it is in essence a common-law right, then the fact that it also could fit the definition of a right protected by the Constitution does not, by itself, justify resort to procedure by way of constitutional motion. There has to be some exceptional feature, such as the absence of any dispute on the facts, which would make such a procedure more convenient and appropriate. That test was based on the premise that there was a parallel remedy available at common law for the enforcement of the appellant's rights (see 59 WIR at p 533, para [32]). [18] What is evident from Thakur Persad Jaroo and other similar cases is that the determining factor in deciding whether there has been an abuse of process is not merely the existence of a parallel remedy but also that the (2005) 68 WIR 413 at 421 pursuit of the application to the High Court must be viewed as being made for the sole purpose of avoiding the normal judicial remedy for unlawful administrative action. [19] The opinion in Thakur Persad Jaroo has recently been considered and clarified by the Board in Attorney-General v Siewchand Ramanoop [2005] UKPC 15, 66 WIR 334. Their lordships laid stress on the need to examine the purpose for which the application is made in order to determine whether it is an abuse of process where there is an available common-law remedy (at p 343, para [24]). In their lordships' words (at p 343, para [25]):'...where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that course. As a general rule, there must be some feature which, at least arguably, indicates that the means of legal redress otherwise available would not be adequate. To seek constitutional relief in the absence of such a feature would be a misuse, or abuse, of the court's process. A typical, but by no means exclusive, example of a special feature would be a case where there has been an arbitrary use of State power.' [emphasis supplied]

Another example of a special feature would be a case where several rights are infringed, some of which are common-law rights and some for which protection is available only under the Constitution. It would not be fair, convenient or conducive to the proper administration of justice to require an applicant to abandon his constitutional remedy or to file separate actions for the vindication of his rights. [20] The present case differs from Thakur Persad Jaroo in at least two important respects: (i) at the core of this case there are two breaches of fundamental rights (namely freedom of religious belief and observance), and the right of the appellant to be informed of his right to counsel; and (ii) in respect of those breaches, there is no alternative common-law remedy. There was no dispute in relation to these facts. The absence of any dispute on the facts was a factor

accepted in Thakur Persad Jaroo as relevant to the determination whether it was appropriate to proceed by way of originating motion. The undisputed facts (either not challenged or as found by the judge) underpin the declarations. IMPROPER EXERCISE OF THE JUDGE'S DISCRETION [21] In the present case the judge agreed that the cutting off of a person's hair against his will and the inflicting of physical blows on an individual can amount to breaches of the constitutional rights to security of the person or the common-law tort of assault and battery. She further said: (2005) 68 WIR 413 at 422'... cutting off "dreadlocks" which are worn for religious reasons or serving a non-vegetarian diet in breach of religious practices can also amount to breaches of the constitutional right to freedom of conscience and religious belief and observance.'

She also found that the appellant's right to be informed of his right to counsel had been breached. The trial judge, however, was of the view that there was an abuse of the court process by the appellant since parallel remedies were available in tort and facts were in dispute. This was undoubtedly true in respect of some of the grounds upon which the application was based. While remedies existed in tort for false imprisonment and trespass to the person, there was also available the remedy of constitutional redress for breaches of fundamental human rights, specifically the right to freedom of conscience and religious belief and observance, and the right of the appellant to be informed of his right to counsel. [22] If one were to borrow the language of Thakur Persad Jaroo v Attorney-General (2002) 59 WIR 519, the 'true nature' of the complaint is a breach of the appellant's constitutional rights. It was therefore appropriate to proceed by way of originating motion. [23] The appellant also submitted that the judge ought to have exercised her discretion to allow the matter to be converted as if begun by writ in accordance with the guidance given in Attorney-General v Siewchand Ramanoop (2005) 66 WIR 334. In that case the Board advised that the emergence of a factual dispute does not necessarily render the proceedings an abuse where the alleged facts, if proved, would call for constitutional relief (see 66 WIR at p 344, para [30]). This was a case in which those facts that were not disputed clearly established a breach of constitutional rights. [24] Despite acknowledging the opinion of the Board in Siewchand Ramanoop, the judge decided (at p 344, para [30]) that she was: '... unable to accept the submission of the [appellant's] counsel that the [appellant's] notice of motion should be treated as a writ'. She simply held that the originating motion was an abuse of process and failed to do anything more in aid of it. She did not allow the appellant to amend his course of action, which at that stage was clearly viewed (erroneously) by all parties as the wrong procedure. She therefore erred in dismissing the motion in its entirety. A trial judge in my view should make every effort to save the proceedings where it is just and reasonable to do so. Matters of procedure are to be kept flexible in order to do justice between the parties. This is clearly reflected in Ord 2 of the Rules of the Supreme Court. Striking out for an abuse of process must be a last resort. [25] The exercise of her discretion in that manner at such a late stage of the proceedings also defeated the objective of all the learning, which is to dispose of matters such as this in the most just and convenient manner and to avoid a multiplicity of actions. All the evidence had already been (2005) 68 WIR 413 at 423 heard and the judge was in a position to make findings of fact. There was no point in requiring the appellant

to file new proceedings and present the case all over again before a different judge. CONCLUSION [26]) In view of the undisputed breach of the appellant's constitutional rights this matter was properly begun by way of originating motion. The case should therefore be remitted to the judge below to enter judgment against the State in the following terms: (i) a declaration that the appellant's right to be informed of his right to retain and instruct without delay a legal adviser of his own choice and to hold communication with him was infringed; (ii) a declaration that the appellant's right to freedom of conscience and religious belief and observance was infringed; and (iii) an order made for damages (if any) resulting from the aforesaid breaches to be assessed. The appeal is therefore allowed. The respondent must pay the costs of this appeal certified fit for senior and junior counsel. Appeal allowed with costs.