Roger Stoute Judgment FINALwebopac.ttlawcourts.org/LibraryJud/Judgments/HC/... · 2011. 11. 21. ·...

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The Republic of Trinidad and Tobago

In the High Court of Justice

Claim No. CV 2008- 01121

Between

ROGER STOUTE Applicant

And

THE ATTORNEY GENERAL OF TRINIDAD Respondent

AND TOBAGO

Before The Honourable Mr. Justice Devindra Rampersad

Appearances:

Mr. Faraaz Mohammed instructed by Mr. John Heath for the Applicant

Mrs. Josefina Baptiste-Mohammed instructed by Ms. Renessa Tang Pack for the

Respondent.

Delivered on the 17th day of October, 2011

JUDGMENT

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Table of Contents

The Notice of Motion for relief under the Constitution ............................................................ 3

Background: ............................................................................................................................... 3

The first conviction ............................................................................................................... 3

The second set of convictions ................................................................................................... 4

From when ought consideration be given to the claimant’s loss of liberty except by due

process in the present claim relative to the second conviction? .................................................... 5

The Substantive Claim: .............................................................................................................. 7

Whether delay in the appellate process constitutes a contravention of the claimant’s

constitutional right not to be deprived of his liberty otherwise than by due process of law. ........ 8

Delay: Laches ........................................................................................................................... 14

The authorities on the issue: ............................................................................................... 17

The respondent’s conduct in these proceedings: ............................................................... 20

The resolution of the issue of delay .................................................................................... 21

Monetary Compensation: ....................................................................................................... 24

The order ................................................................................................................................. 31

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The Notice of Motion for relief under the Constitution

1. By Notice of Motion filed on 28 March 2008, the claimant claimed against the

respondent the following reliefs:

1.1. A declaration that the continued imprisonment and/ or continued detention

of the claimant between the period May 26 2001 to 7 April 2004 was

unconstitutional and illegal;

1.2. A declaration that the failure of the State to list the claimant’s appeal

against his conviction in the charge laid by P.C. Arthur until some five (5)

calendar years or the equivalent of 7.5 prison years after he had lodged his

appeal in the circumstances of this case was unconstitutional and illegal;

1.3. An order that monetary compensation including aggravated damages and/

or exemplary damages be assessed by a Judge in Chambers and paid by

the defendant to the claimant as a result of the above-mentioned

unconstitutional action;

1.4. Costs;

1.5. Such further and other relief as the nature of the case may require.

2. The grounds upon which the application is based are stated in the said Motion.

3. In support of the motion, the claimant filed an affidavit sworn to and filed on

28 March 2008. On behalf of the respondent, two (2) affidavits were filed - one

on 27 June 2008 by Randolph Orosco, Prisons Officer 11 at the Maximum

Security Prison, Golden Grove, Arouca, and the other on 9 July 2008 by Clive

Richardson, Clerk of Appeals, Supreme Court of Judicature.

Background:

The first conviction

4. On 11 December 1997, the claimant was charged by P.C. Taylor for possession of

a dangerous drug, namely cannabis sativa for the purpose of trafficking,

Case No. 4047/97. On 28 March 1998, he was convicted of that charge and

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sentenced to four (4) years imprisonment. A notice of appeal was filed on the

claimant’s behalf within seven days of his conviction, and after three months in

custody, he secured bail. The claimant was therefore at liberty in respect of this

conviction. For the sake of convenience, the Court shall in the course of this

judgment refer to this conviction as “the first conviction.”

The second set of convictions

5. On 21 December 1997 (10 days following his first charge), the claimant was

charged by P.C. Arthur for two other offences- the first, for possession of a

dangerous drug, namely cannabis sativa for the purpose of trafficking,

Case No. 4118/97, and the second, possession of a dangerous drug, namely

cocaine, for the purpose of trafficking, Case No. 4119/97. He was convicted of

both charges on 26 May 1999 and sentenced to 24 months and 9 months

respectively, said sentences to run concurrently. The claimant filed a Notice of

Appeal on 28 May 1999, and since bail was refused in respect of these

convictions by both the sentencing Magistrate and a Judge in Chambers, the

claimant was remanded into custody pending the outcome of his appeal. As

there is no legal or technical need to separate these two convictions for the

purposes of this judgment, this Court shall collectively refer to Case No. 4118/97

and Case No. 4119/97 as “the second conviction.”

6. As of 26 May 1999, the claimant was in custody pursuant to the second

conviction of twenty-four months imprisonment. It will be appreciated, of course,

that the effect of this second period of imprisonment is an obliteration of the

benefit of bail pending appeal on the first conviction. The claimant’s claim of loss

of liberty is from 26 May 2001- presumably the date when his 24 months

imprisonment would have expired - to 7 April 2004, the date of dismissal of the

second conviction.

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From when ought consideration be given to the claimant’s loss of liberty

except by due process in the present claim relative to the second conviction?

7. Before I venture into the substantive discussion on this constitutional claim, it is

necessary to identify and isolate the relevant circumstances of the present claim

from the surrounding circumstances. While I have so done, as the claim relates

to the second conviction only, a background of the appeal relative to the first

conviction has been provided by both parties, and not least as a course of context,

I think it practical to briefly outline those circumstances as they are indeed quite

unfortunate. In his affidavit, the claimant deposed that while he was in custody on

the second conviction, and awaiting the listing of both appeals, he:

“became aware of a newspaper article that reported that sometime in

August 2000 my appeal against the ‘first charge’ [first conviction] had

been listed in the Court of Appeal and that this appeal had been dismissed

for non appearance and accordingly my conviction and sentence had been

affirmed.”1

8. The claimant emphasised that at no time between the filing of his Notice of

Appeal in relation to the first conviction and the hearing of that appeal was he

ever notified that the appeal had been listed for hearing. Through no fault of his

therefore, the appeal in relation to the first conviction was dismissed for non

appearance on 2 August 2000. In the affidavit of Clive Richardson, Clerk of

Appeals, he stated that pursuant to section 137 (b) of the Summary Courts Act

Chap. 4:20, there was proper service of the Notice of the date of hearing on the

claimant at his address at Mt. Pleasant, Tobago and on his bailor, one Mr. Errol

Sandy of Andrew Street, Rockleyvale, Tobago. Apparently following the return

of the notice to the bailor, further enquiries from the Commissioner of Prisons

revealed that the claimant was not an inmate of the State Prison at the time. This

was clearly an error of severe consequence for the claimant on the part of the

1 Affidavit of claimant, Roger Stoute sworn to and filed on 28 March 2008 at para. 8

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Prison officials. As rightfully admitted by Mr. Orosco, Prison Officer 11 at

paragraph 6 of his affidavit2:

“The normal procedure with respect to notifying prisoners of the dates of

their appeals is that the Court of Appeal Registry would issue a cause list

of the upcoming Appeals to the Prisons with a request to indicate which

prisoners are in custody. In the case of the claimant such a cause list was

issued to Prisons and it was erroneously indicated that the claimant was

not in custody when he was in fact in prison custody.”

9. The claimant’s status as a prisoner was further corroborated by the endorsements

on the claimant’s application for legal representation through the Legal Aid

Advisory Authority, from which “it was observed that the claimant was at

Golden Grove Prison, Arouca since 26th

May, 1999 on cases 4118/97 and

4119/97.” 3 Mr. Orosco further stated, “The claimant was in prison custody from

26th

May, 1999 until 7th

April, 2004 as an appellant pending the hearing of his

appeals for Magisterial Appeal 6 of 2000 and Magisterial Appeal 13 of 2004.”4

10. The significance of the dismissal of the appeal relative to the claimant’s first

conviction and the subsequent affirmation of conviction and sentence to the

present motion lies in the anomaly of the circumstances of that dismissal and the

absence of a challenge thereto. Perhaps this lack of challenge is an indication that

the claimant regards this error on the part of the Prison officials as purely

unintentional. It was, however, for counsel to recognise that a fundamental right

of the claimant had been contravened, that is, according to section 5 (2) e of the

Constitution, “Parliament shall not... deprive a person of the right to a fair

hearing in accordance with the principles of fundamental justice for the

determination of his rights and obligations.” The claimant was quite clearly

denied a fair hearing when his appeal was dismissed for non-appearance in

circumstances where he could not have “appeared” as he was not notified, the

prison records having erroneously indicated that he was not in prison at the time.

2 Sworn to and filed on 28 March 2008.

3 See para. 7 of affidavit of Clive Richardson, supra. 4 Affidavit of Randolph Orosco, supra, at para. 4.

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11. All of this is however purely academic since, notwithstanding that recourse, the

claimant has not pursued a claim in respect of the appeal relative to his first

conviction. In fact, in written submissions filed on behalf of the claimant on 31

March 2009, it is stated, “the claimant is not seeking any relief in relation to that

first charge [conviction] or the related appellate process.” The difficulty this has

presented for the claimant though is that the basis for his claim of constitutional

relief from 26 May 2001, and not 4 prison years following the dismissal of his

appeal on the first conviction, is gravely misconceived. Fortunately, on the 17

November 2008, the parties agreed that the relevant period in question was the

period 2 April 2003 to the 7 April 2004.

The Substantive Claim:

12. The applicable timeframe having been agreed, it is necessary to put this claim in

its proper constitutional context. The claimant bases his application on the

following:

12.1. That his right under section 4 (a) of the Constitution of the Republic of

Trinidad and Tobago not to be deprived of his liberty except by due

process has been infringed by the delay in listing his appeal;

12.2. That his right to a fair hearing under section 5 (2) e of the Constitution has

been infringed;

12.3. That his right under section 5 (2) h to those procedural provisions that

exist to afford protection of his rights were also infringed.

13. The main argument advanced on the claimant’s behalf is that his right not to be

deprived of his liberty otherwise than by due process was contravened since

pursuant to lodging his Notice of Appeal on 28 May 1999, he spent 59 months

awaiting said appeal against a sentence of 24 months5 (the second conviction). He

states further that by the time his appeal was listed, not only was the entire

5 It will be remembered that the claimant was sentenced to a concurrent 9 months sentence. For the purpose of this judgment, reference is made to the 24 months period of imprisonment on the understanding that the 9 months is subsumed thereunder.

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process rendered otiose by virtue of his incarceration in excess of the 24 months

prison term, but the process was moreover aggravated by the fact that his appeal

was allowed.

14. In response, the respondent contends that the claimant’s detention pending the

hearing of his appeal in relation to the second conviction was in accordance with

due process, as the Constitution does not recognise a right to a speedy trial.

15. Further, the claimant is precluded from redress on the basis of his delay, without

explanation, in instituting this motion.

16. This further argument of the respondent will be discussed as a separate issue later

on in this judgment. The question which now engages the Court concerns

infringement of the claimant’s constitutional rights.

Whether delay in the appellate process constitutes a contravention of the

claimant’s constitutional right not to be deprived of his liberty otherwise than

by due process of law.

17. The rights to liberty and fair hearing are rights protected under the Constitution,

particularly under the due process provision. That the concept of due process

extends to the appellate process is beyond dispute: see Stollmeyer J. in Lezama

and Maryshaw v. Commissioner of Prisons and Attorney General of

Trinidad and Tobago HCA No. 2098 of 2002 and Thomas v. Baptiste P.C.

App. No. 60 of 1998. In the latter case, Lord Millett, in delivering the opinion of

the Board, discussed at length the meaning of the due process clause, and

expressed the following at pages 8-9:

“The due process clause requires the process to be judicial; but it also

requires it to be ‘due’. In their Lordships’ view ‘due process of law’ is a

compendious expression in which the word “law” does not refer to any

particular law and is not a synonym for common law or statute. Rather it

invokes the concept of the rule of law itself and the universally accepted

standards of justice observed by civilised nations which observe the rule of

law: see the illuminating judgment of Phillips J.A. in Lassalle v. Attorney-

General (1971), 18 W.I.R. 379 from which their Lordships have derived

much assistance.

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The clause thus gives constitutional protection to the concept of procedural

fairness. Their Lordships respectfully adopt the observation of Holmes J.

in Frank v. Mangum (1915) 237 U.S. 309, 347:-

“Whatever disagreement there may be as to the scope of the

phrase ‘due process of law’, there can be no doubt that it

embraces the fundamental concept of a fair trial, with

opportunity to be heard.”

Whether alone or in conjunction with section 5(2) their Lordships have no

doubt that the clause extends to the appellate process as well as the trial

itself. In particular it includes the right of a condemned man to be allowed

to complete any appellate or analogous legal process that is capable of

resulting in a reduction or commutation of his sentence before the process

is rendered nugatory by executive action.”

[emphasis added]

18. It is worth recognising that counsel for the claimant neither sought to counter the

respondent’s argument nor advance any contrary submission that there is no

constitutional right to a speedy or expeditious hearing of an appeal in Trinidad

and Tobago. This is a most sensible approach as this issue has been addressed in

the judgments of Director of Public Prosecutions v. Tokai [1996] AC 856 PC

and Sieuruj Sookermany v. Director of Public Prosecutions (1996) 48 WIR

346, and it is accepted that any challenge to delay, whether in a trial or appeal,

must be mounted on a claim for breach of due process which includes, with

particular reference to the present application, the rights to liberty, fair hearing

and protection of the law.

19. In Re Applications by Thomas and Paul (1986) LRC [Const] 285, the claimants

sought a declaration that the carrying into effect of their death sentences would be

unconstitutional in that it would contravene their rights under ss.4 (a) (b) (d), 5 (2)

(b), 5 (2) (c), 5 (2) (e) and 5 (2) (f) of the Constitution of Trinidad and Tobago,

No.4 of 1976. The application was founded on the ground of inordinate delay in

the appeal processes following conviction. In dismissing the motions, Collymore

J. held that the Court could find no delay attributable to the State which was so

protracted as to amount to unreasonable incarceration. The learned Judge said the

following of delay and the due process principle at page 293, letters C &E:

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“On the other hand, looking at the matter broadly, in which there lies the

ultimate responsibility of the State for the carrying into effect all appeal

procedures, can there be said to have been unreasonable delay?

The sole issue in this case is: Has the State failed to ensure the ‘due

process of law’ in carrying into effect the sentence of the Court? When so

viewed, it is difficult to envisage the circumstances when this can be

invoked where what the accused is complaining about is delay in the

carrying into effect of the appeal process. There must to my mind be so

protracted and unreasonable a period of delay as to lead to the

conclusion that the ‘due process of law’ has virtually broken down, and

the incarcerated person has been left to languish without proper

determination of his appeal.

It seems to me that it would be an unfruitful and unrealistic exercise to

attempt to set out time limits for the exercise by the Court of its function

beyond which there would take place a breach of constitutional rights.

Surely the question whether the time taken to arrive at a determination of

the case is reasonable must depend on the facts of each case. The test

suggested by Hyatali CJ in Kitson Branche (supra) [Kitson Branche v.

Attorney General CA Civ. 63/77] was that the delay should be ‘manifestly

protracted and unreasonable.”

[emphasis added]

20. In the instant case, was the delay in listing the claimant’s appeal for hearing some

59 months after it was lodged, bearing in mind the claimant’s continuous

incarceration, so manifestly protracted and unreasonable that it amounts to a

breach of due process?

21. The affidavit of Clive Richardson states at paragraph 9:

“The reason for the delay in the listing and subsequent hearing of the

claimant’s appeal [in respect of the second conviction] was as a result of

the delay in the Notes of Evidence together with the Magistrate’s Reasons

being delivered to the Court of Appeal from the Tobago Magistrates’

Court.”

22. In Anneson Stanisclaus v. The Attorney General of Trinidad and Tobago

HCA No. 1785 of 2000, it was recognised that while listing of an appeal for

hearing is a function of the appellate jurisdiction, the Clerk of Appeals on whom

this duty lies, is defenceless in instances of delay as he must await the Record of

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Proceedings from the lower court before being in a position to list said appeal. At

page 2 of the judgment, it is noted:

“The Clerk of Appeals is responsible for the listing of Magisterial

Appeals. However, the Clerk of Appeals only receives notice of the

existence of such an appeal when he receives the Record of Proceedings

from the Clerk of the Peace of the Magistrate’s Court. Accordingly, he is

not in a position to list an appeal until he receives the Record of

Proceedings.”

23. In the present case, it is a point of note that photocopies of the Notes of Evidence

with the Magistrate’s Reasons were received on 15 March 2004. The original

Notes of Evidence were received on 30 April 2004, subsequent to the hearing and

determination of the claimant’s appeal on 7 April 20046. While the Clerk of

Appeals did act with the required promptitude in listing the claimant’s appeal

following receipt of the necessary records, the reason for this impetus is probably,

above everything else, a patent acknowledgment that the period of delay up until

that time was inordinate. A prompt date of hearing of the claimant’s appeal was to

put it bluntly, more than warranted.

24. The case of Anneson Stanisclaus is on point with the present. The claimant there

had pleaded guilty to a charge under the Dangerous Drugs Act 1991 on 4 April

1995. The Magistrate imposed a fine of $15,000.00 or a term of 5 years

imprisonment with hard labour in default. On the same date, 4 April 1995, the

claimant appealed his sentence on the ground that it was too severe, and since he

could not secure bail, he remained in custody until his appeal was heard on 25

May 1999- four (4) years after he lodged his appeal. The Court of Appeal allowed

the appeal and varied the claimant’s sentence to one of 3 years, which by that

time, was deemed to have already been served. Counsel for the respondent in that

case, as in the present, submitted that the claimant had been afforded access to

due process at each stage of the proceedings i.e. at the hearing before the

Magistrate, at the various bail application hearings and at the hearing of his

appeal. Christopher Hamel-Smith J. accepted that the claimant was afforded

6 See affidavit of Clive Richardson at para. 10

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process, but disagreed that such process can be considered “due” as required by

the Constitution7. He went on to say at page 5 of the judgment:

“On any realistic and practical view of this matter...it is clear that the

hearing before the Court of Appeal was rendered largely, if not entirely

nugatory by the fact that Mr. Stanisclaus had already been imprisoned for

a period considerably in excess of the maximum term to which he was

legally liable, before his appeal was listed for hearing. In this regard, it

would seem inexplicable that the Record of Proceedings from the

Magistrate’s Court should have only been forwarded to the Clerk of

Appeals almost four years after Mr. Stanisclaus had entered his guilty

plea. Such inaction, and the consequent delay in the listing of his

appeal, deprived the process made available to Mr. Stanisclaus of any

claim to be considered to be ‘due’ as required by the Constitution. In

these circumstances, I have no doubt that Mr. Stanisclaus was deprived

of his liberty without due process of law since he was not allowed to

complete the process of his appeal against sentence before that process

had been rendered nugatory by the State’s inaction i.e. the failure to list

his appeal for hearing.”

[emphasis added]

25. A similar, perhaps graver situation obtained in the present case. The claimant’s

appeal was listed and heard 59 months - one (1) month short of five years, after

his Notice of Appeal was filed. The evidence before the Court is that the claimant

was denied the right to complete the appellate process before that process had

been rendered nugatory as a direct result of the State’s inaction in not delivering

up the Record of Proceedings from the Magistrate’s Court in a timely manner. In

the Court’s view, the delay that resulted therefrom was so manifestly protracted

and unreasonable that it must, as a matter of justice, be lifted out of the confines

of those delays that may ordinarily result from the due process of law taking its

course, taking into account the prevailing system of legal administration, and the

prevailing economic, social and cultural conditions: see Sieuruj Sookermany v.

Director of Public Prosecutions supra, at page 347.

7 Page 5 of judgment of Anneson Stanisclaus v. The Attorney General of Trinidad and Tobago HCA No. 1785 of 2000.

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26. That the delay in listing the claimant’s appeal has amounted to an infringement of

his rights to liberty, fair hearing and procedural safeguards guaranteed under the

Constitution cannot seriously be doubted. Perhaps the most dire consequence of

this delay is that it rendered otiose the claimant’s appeal and therefore

underscored the unlawfulness of the detention the claimant suffered, when ideally

he ought to have been a free man had he been afforded the due process of an

earlier hearing. At page 6 of the Anneson Stanisclaus judgment, Christopher

Hamel-Smith J. said:

“If the consequences of delay can be shown to have made the process

“undue” (taking into account the possibility of ordinarily available

procedures to avoid or mitigate any potential unfairness) then such

consequences of delay will normally mean that there has been a breach of

the constitutional right to due process. This in my judgment is precisely

what happened in this case. The State’s delay in listing Mr. Stanisclaus’

appeal has produced a situation in which the process made available to

him cannot be described as ‘due’ process required by the Constitution. In

my judgment, the process experienced by Mr. Stanisclaus falls woefully

short of the universally accepted standards of justice observed by civilised

nations which observe the rule of law.”

27. What has resonated greatly in the Court’s determination that the claimant’s

constitutional rights have been infringed, and that this therefore is not a matter to

be treated lightly is the inescapable fact that the claimant has languished in prison

awaiting the listing of his appeal wholly as a direct result of the State’s inaction

and delay. Contrary to counsel for the respondent’s suggestion, the claimant has

not “slept on his rights” as he was very proactive in his efforts to expedite his

appeal. At paragraph 6 of his affidavit, he stated, “In the period between the filing

of my appeal and my being notified of the date that the appeal was to be listed for

I made several attempts to have my appeal expedited by writing letters to the

Clerk of Appeals, the Legal Aid and Advisory Authority, the Ombudsman, the

Attorney General’s Office as well as having discussions with Officers at the

Prison.”

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28. These efforts were confirmed by Randolph Orosco in his affidavit8, to which was

attached the relevant letters and request sheet indicating the claimant’s desire to

send out correspondence to the various authorities to have his appeal expedited.

29. In light of all the circumstances, this Court entertains no hesitation in finding that

the claimant has suffered a grave and fundamental injustice as a result of the

State’s delay in listing his appeal. It is an exercise in restraint that the Court

describes the delay occasioned in this matter merely as “manifestly protracted and

unreasonable”, such as to constitute an infringement of the claimant’s rights under

sections 4 (b), 5 (2) e and 5 (2) h of the Constitution.

Delay: Laches

30. In further argument, counsel for the respondent submitted that the claimant’s

unreasonable delay in bringing the motion disentitles him to redress,

notwithstanding any favourable finding in respect of breach of his constitutional

rights. The Court ought not to exercise its discretion in his favour, and should

therefore dismiss the motion. This argument encompasses the principle of laches.

In the unfortunate circumstances of the claimant’s motion before this Court, the

irony is rather poignant.

31. On the evidence before the Court, the claimant’s appeal was heard on 7 April

2004, and the motion seeking relief was filed on 28 March 2008- a delay of

almost 4 years. However it must be remembered that the reliefs which the

claimant seek are in respect of breach of his fundamental rights as enshrined in

the Constitution- which this Court has already determined to have been so

breached. In Felix Augustus Durity v. The Attorney General of Trinidad and

Tobago PC App. No. 52 of 2000, Lord Nicholls explained at paragraph 30 why a

Court should be slow to dismiss a Constitutional Motion for delay:

“At the forefront of the Constitution is a resounding declaration of

fundamental human rights and freedoms. It is axiomatic that these rights

and freedoms, expressly declared, are not to be cut down by other

8 At para. 5

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provisions in the Constitution save by language of commensurate clarity.

The Constitution itself so declares. The rights and freedoms recognised

and declared in section 4 are not to be abrogated, abridged or infringed

by any law except as expressly provided in Chapter 1 of the Constitution

or in section 54 (amendment of the Constitution): see section 5. Clearly,

the inherent jurisdiction of the High Court to prevent abuse of its process

applies as much to constitutional proceedings as it does to other

proceedings. And the grant or refusal of a remedy in constitutional

proceedings is a matter in respect of which the court has a judicial

discretion. These limitations on a citizen’s right to pursue constitutional

proceedings and obtain a remedy from the court are inherent in the

High Court’s jurisdiction in respect of alleged contraventions of

constitutional rights and freedoms. But the Constitution itself contains

no express limitation period for the commencement of constitutional

proceedings. The court should therefore be very slow indeed to hold that

by a side wind the initiation of constitutional proceedings is subject to a

rigid and short time bar. The very clearest language is needed before a

court could properly so conclude.”

[emphasis added]

32. Whilst the present motion does not seek relief under section 14 of the

Constitution, it is useful preliminarily, and as a matter of related interest, to

allude to this section in any discussion on constitutional proceedings and delay.

The machinery for the enforcement of fundamental human rights and freedoms is

contained in section 14 within Part V of the Constitution. As stated by Moosai

J. in Annissa Webster Claim No. 3562 of 2003 at paragraph 18:

“Section 14 empowers the High Court to hear and determine disputes

about contraventions of the Chapter 1 provisions and to grant the

appropriate remedy in respect thereof. The grant or refusal of a remedy in

constitutional proceedings is a matter in respect of which the Court has

judicial discretion by virtue of its inherent jurisdiction to prevent abuse of

process that applies as much to constitutional proceedings as it does to

others.”

33. The concept of unexplained delay permeates the ambit of the fundamental rights

and freedoms guaranteed under the Constitution, extending to section 14. In Felix

Durity supra, the Privy Council said the following on the subject at paragraph 35

of the judgment:

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“When a court is exercising its jurisdiction under section 14 of the

Constitution and has to consider whether there has been delay such as

would render the proceedings an abuse or would disentitle the claimant to

relief, it will usually be important to consider whether the impugned

decision or conduct was susceptible of adequate redress by a timely

application to the court under its ordinary, non-constitutional jurisdiction.

If it was, and if such an application was not made and would now be out

of time, then, failing a cogent explanation the court may readily conclude

that the claimant’s constitutional motion is a misuse of the court’s

constitutional jurisdiction. This principle is well established.”

[emphasis added]

34. As an aside observation, Counsel for the claimant had submitted that while the

claimant could have instituted habeas corpus proceedings, the present claim was

more suited to a constitutional motion. The respondent did not agree with this

reasoning. It is worthwhile to refer to what Ventour J. said in Ronald Gordan

supra in this regard:

“Counsel for the respondent has submitted that...the claimant could have

approached the Court seeking relief for one or other of the following

causes of action i.e. false imprisonment, habeas corpus and/or judicial

review proceedings. Notwithstanding counsel’s submission I do not

consider the claimant’s motion under section 14 (1) of the Constitution to

be an abuse of process in the context of the Jaroo principle9. It seems to

me that a claimant who alleges, inter alia, that his Constitutional right to

protection of the law pursuant to section 4 (b) of the Constitution is being

or has been violated is entitled to approach the Court by way of

Constitutional Motion. Moreover, a breach of the claimant’s right to due

process in circumstances where the executive action renders nugatory the

9 Jaroo v. AG of Trinidad and Tobago (2002) 1 AC 871- this case considered the abuse of process principle as it applies to whether the action complained of is susceptible to adequate redress in the ordinary courts.

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claimant’s right to access the appellate process can be properly dealt with

in the Constitutional Court.”

35. Applying the above dictum, I think it is well settled that in the circumstances of

the present case, the claimant’s right to redress for the breaches he suffered was

laid appropriately by way of motion. This is especially so where, in any event,

despite several attempts by the claimant during his incarceration to obtain legal

intervention and assistance, he was unable to so do. As aforementioned, proactive

efforts were made by the claimant to expedite the hearing of his appeal in relation

to the second conviction, including written requests to the Legal Aid and

Advisory Board for legal representation10- said representation was only afforded

to the claimant in 2004. In written submissions on behalf of the claimant filed on

10 November 2009, it was correctly pointed out that while indeed the claimant

was entitled to pursue habeas corpus proceedings- having recognized that the

period of his imprisonment exceeded his intended prison term- “this right must be

concomitant with his ability to pursue such a course of action.”11 It is by no

means far-fetched for this Court to recognize that the ordinary man, the lay person

on the street- in this case, the claimant in prison- would be completely oblivious

to the term “habeas corpus”, far less that such a writ was available to him for

unlawful detention. In the absence of legal advice to the claimant relative to his

right to pursue this remedy, this Court rejects, without hesitation, respondent

counsel’s submission that “had the claimant’s recourse [of habeas corpus] been

pursued more avidly, he would not have languished in prison” 12 awaiting the

hearing of his appeal. Once more, this bold submission of the respondent serves

only to reinforce the poignancy of the several ironies ever present in the instant

motion.

The authorities on the issue:

10 See paras. 26 and 27 above. 11 Para. 7 of claimant’s submissions on delay filed on 10 November 2010. 12 Page 5 of the defendant’s submissions filed on 12 May 2009.

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36. Returning to the present issue of laches, the fact is whilst the Constitution is

indeed devoid of any express limitation period for the commencement of

constitutional proceedings, this must be regarded in light of section 23 of the

Interpretation Act Chap. 3:01, which states:

“Where a written law requires or authorises something to be done but

does not prescribe the time within which it shall or may be done, the law

shall be construed as requiring or authorising the thing to be done without

unreasonable delay having regard to the circumstances and as often as

due occasion arises.”

37. This is exactly the argument of respondent counsel in the present case - that the

lacuna as to time limitations in the Constitution for commencement of

constitutional proceedings is filled by the need to ensure that the process of the

Court is not abused by inordinate delays in filing claims. The respondent further

submits that in circumstances of delay, the party aggrieved is under an obligation

to satisfactorily explain the delay, failing which, the motion should be dismissed.

Counsel referred the Court to the Indian case of Tilokchand Motichand v.

Munshi (1969) 2 S.C.R.824, in which a claimant’s petition was dismissed on the

ground of laches. Hidayatullah CJ in dealing with the petition under Article 32 of

the Indian Constitution (concerning enforcement of fundamental rights) to which

the Limitation Act did not apply, said at page 832 of the judgment:

“If a short period of limitation is prescribed the Fundamental Right

might well be frustrated. Prescribing too long a period might enable

stale claims to be made to the detriment of other rights which might

emerge.

If then there is no period prescribed what is the standard for this Court to

follow? I should say that utmost expedition is the sine qua non for such

claims. The party aggrieved must move the Court at the earliest possible

time and explain satisfactorily all semblance of delay. I am not indicating

any period which may be regarded as the ultimate limit of action for that

would be taking upon myself legislative functions...I will only say that

each case will have to be considered on its own facts. Where there is

appearance of avoidable delay and this delay affects the merits of the

claim, this Court will consider it and in a proper case, hold the party

disentitled to invoke the extraordinary jurisdiction.”

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[emphasis added]

38. In Warris v. Comptroller of Customs and Excise (unreported) HCA 2354 of

1990, Sealey J, in applying the principle in Tilokchan Motichan supra,

dismissed the claimant’s motion which had been filed about 6 years after the

accrual of the cause of action on the basis of a lack of explanation for the delay.

Similarly, in Smith v. Commissioner of Police supra, Ventour J. held that the

filing of the motion in that case 22 months after the incident gave rise to a delay

which had not been satisfactorily explained so as to justify the court’s

discretionary powers being exercised in favour of the claimant. At page 419,

paragraph h, the learned Judge stated:

“There is no dispute that when one examines all these authorities there is

a common principle to be found in each of these cases and that is, when

one is aggrieved as a result of one’s fundamental rights, one should seek

redress before the court with utmost expedition. In matters of this nature

the court has a duty to help those who are vigilant and who do not

slumber on their rights. More importantly, if there is delay in bringing

the motion, the claimant is under an obligation to explain the delay.”

[emphasis added]

39. In Edred Christopher v. The Attorney General of Trinidad and Tobago HCA

No. 3793 of 1996, the claimant had been aggrieved by the delay of the Industrial

Court which delivered its judgment 13 years after the last day of hearing of the

trade dispute in which the claimant was retrenched. The claimant filed his Notice

of Motion 6 years and 6 months after delivery of said judgment. He explained his

delay on the basis of inter alia, his old age, a painful injury which had him

hospitalised and his impecunious state. The Court held as follows at page 6 of the

judgment:

“Deprivation of a constitutional right is a matter of grave concern and

where the claimant is relying on delay, the respondent’s attempt to

defeat his suit by also alleging delay seems but to exacerbate the

claimant’s grievance.”

[emphasis added]

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40. It is perhaps a similar reasoning that counsel for the claimant invoked in his

submission that laches is an intervention of equity and the State should be

precluded from relying on this doctrine, since it has not come to the Court with

“clean hands”. Counsel submitted that the delay in listing the claimant’s appeal

would have been within the knowledge of the respondent through its various

agencies, and it would therefore not be unfair to say that the State has perpetuated

bad administration.

The respondent’s conduct in these proceedings:

41. It is appropriate at this time to say something as well about the chronology of this

action. After the filing of this action on the 28 March 2008, several case

management conferences (“CMCs”) were held. After three such CMCs, Justice

Smith (as he then was) gave directions on the fourth occasion for the filing of

written submissions. The claimant’s written submissions were filed on 31 March

2009 and when the matter came up thereafter at a CMC, time for the respondent

to file and serve written submissions was extended and a trial date was fixed. At

the trial, there was no cross examination of any of the parties who deposed to

affidavits in these proceedings. After the close of the case and submissions, this

court gave directions for the filing of formal written submissions on the issue of

delay which was raised by the respondent at the trial. No mention was made on

the record of any issue in relation to delay being raised by the respondent prior to

the close of the case. Significantly as well, no notice of the intention to rely upon

this preliminary point was ever filed so that by the time directions had been given

for the filing of submissions on the main issue, there was no official notice of this

preliminary issue.

42. It is my respectful view that points of law such the one on delay being relied upon

by the respondent ought to have been raised at the earliest opportunity. Such

preliminary points, to my mind, ought to be specifically, explicitly and succinctly

expressed so that the parties and the Court may address such points head-on and

thus enable all parties to be fully informed of the issues to be dealt with and

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determined by the Court. Definitely, at the CMCs, such an issue, as a matter of

law, ought to have been raised and dealt with so that the claimant would have

been put on notice as to delay being a live issue for determination by the Court. In

fact, the original submissions filed on behalf of the respondent in advance of the

trial made no mention whatsoever of the issue of delay. The respondent’s failure

to preliminarily raise the delay point meant that the claimant was ambushed in

this regard, with the result that the claimant was not given the opportunity to

address the said intended delay issue in the evidence. This to my mind, makes a

significant difference to the overall determination of this Motion, and is a matter

with which I shall deal later on. Of course, by the time the matter had come to

trial, it would have been too late to address that issue in the evidence and so the

defendant was quite right to suggest that there was not an iota of evidence

explaining the delay.

43. It is this Court's view that, had the issue been properly raised by the filing of the

appropriate notice at the earliest possible opportunity, it may have been possible

for the claimant to have made an application of his own to file a further affidavit

to provide the evidence required to address this issue. However, this issue was not

raised and therefore the disadvantage occasioned to the claimant was, to my mind,

as a direct result of this failure.

The resolution of the issue of delay

44. There is no denying that the claimant’s affidavit in the present Motion is devoid

of any explanation. In the dissenting judgment in Tilokchan Motichan (a case in

which a claim under the Indian Constitution was brought, unsuccessfully, more

than 6 years after the alleged violation of the constitutional right) Sikri J. said at

page 827:

“It is difficult to lay down a precise period, but the period of one year may

be taken as the period beyond which the claim would be a stale claim

unless the delay is explained. The time spent in making representations to

higher authorities may be taken as a good explanation for such a delay.

Such a practice would not destroy the guarantee under article 32, because

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the article nowhere lays down that a petition, however late, should be

entertained.”

45. While the records and evidence disclose that the claimant vigorously pursued the

issue of the dismissal of his appeal relative to the first conviction, and equally

vigorously pursued the matter of an expedited hearing of the appeal in relation to

his second conviction, it appears that the same approach was not employed post-

release. What is noteworthy at this point, however, is that, bearing in mind the

comments I have made above in relation to the respondent’s conduct in these

proceedings, there never seemed to have been any issue in relation to delay until

the very last moment after the trial. In any event, the court has to consider

whether, in fact, and to borrow the words of Hidayatullah CJ in Tilokchan

Motichan supra the delay has been such that it affects the merits of the claim to

disentitle the claimant from invoking the extraordinary jurisdiction of the

constitutional court.

46. What has to be borne in mind is that these are administrative proceedings. It is not

the normal claim in which the adversarial approach to litigation is fostered.

Instead, and especially in light of the need to address any serious allegation of the

breach of a citizen’s Constitutional rights, it is my view that the respondent’s

approach in any matter under the Constitution ought to be one in which the

claimant is fully apprised of all the issues which need to be addressed, and which

may affect his motion. The need for this full apprisal of issues is obvious - the

avoidance of prejudice to the affected party, and the provision of ALL necessary

information to the Court to assist its decision-making process. In this Court’s

written ruling in CV2008-04824:- Premnath Bowlah v AG delivered on the 9

December 2009, this Court said at paragraph 32:

“However, I am of the view that, generally, matters involving the State

require the State, which acts in the interest of the citizenry and which is

objectively responsible for the social and economic livelihood and policy

of the country and its citizens, to act openly in furtherance of that duty

unless special circumstances such as matters of natural security or

confidentiality apply.

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47. Of course, those words were said in the context of an application for disclosure

but the essence of its premise is that of the “cards on the table” approach and the

need for the respondent in circumstances such as these where an obvious injustice

has occurred in relation to the breach of the claimant’s constitutional rights and

expectations, to have afforded the claimant the opportunity to place before this

court those facts which the court would have needed, in the event that the court

agrees that there was delay, to explain away the same. Therefore, I feel that to

allow the respondent to rely on this allegation of delay at this stage would be

manifestly unfair and, in the circumstances, only compound the breach of the

claimant’s rights.

48. Fortunately, however, this Court does not need to make such a finding since the

Court is of the view that there was no such delay in this matter as would disentitle

the claimant from the relief which he seeks in these proceedings. The ruling of the

Court of Appeal was dated the 7 April 2004. Until that time, it was not yet open to

the claimant in the prevailing circumstances, to have made an application for a

writ of habeas corpus since he was still legitimately in prison pending the hearing

and determination by the Court of Appeal. The claimant could not have known,

nor could it be said that he was supposed to have known, how the Court of Appeal

would have ruled in his matter. Therefore, his cause of action, to my mind, arose

on that date – 7th April 2004. This matter was commenced on the 28th March 2008

– within the period of 4 years normally recognized by Parliament to be sufficient

time for the filing of most matters. To now drive him from the seat of a certain

judgment based on this allegation of delay in the circumstances which I have

described would be to deny him a right on wholly unconscionable grounds. In the

circumstances, and bearing in mind the words of Lord Nichols quoted above in

the case of Durity13, I reject the respondent’s plea of delay.

13

“But the Constitution itself contains no express limitation period for the commencement of

stitutional proceedings. The court should therefore be very slow indeed to hold that by a side wind the

initiation of constitutional proceedings is subject to a rigid and short time bar. The very clearest

language is needed before a court could properly so conclude.

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Monetary Compensation:

49. The claimant claims monetary compensation for the loss and damage he has

suffered as a result of the contravention of his constitutional rights. Indeed, the

Court has found that the claimant’s right to liberty, fair hearing and protection of

the law have been violated by the State, and shall make the appropriate

declarations. The question which now engages the Court is whether the instant is

a proper case for the granting of monetary compensation. In Maharaj v. The

Attorney General (1978) 30 WIR 310 PC, the question before the Board was

whether the claimant’s liberty was contravened otherwise than by due process of

law, within the meaning of section 1 (a) of the Constitution 1962, for which the

appellant was entitled to redress by way of monetary compensation under section

6. Lord Diplock made the following distinction between private and public law

claims at pages 321-322:

“Finally, their Lordships would say something about the measure of

monetary compensation recoverable under s. 6 where the contravention of

the claimant’s constitutional rights consists of deprivation of liberty

otherwise than by due process of law. The claim is not a claim in private

law for damages in the tort of false imprisonment (under which the

damages recoverable are at large and would include damages for loss of

reputation). It is a claim in public law for compensation for the

deprivation of liberty alone. Such compensation would include any loss of

earnings consequent on the imprisonment and recompense for the

inconvenience and distress suffered by the appellant during his

incarceration.”14

50. In the instant motion, the claimant has advanced no proof of loss of earnings. This

Court is however empowered to award the claimant compensation for the

infringement of his constitutional rights without proof of any consequential

damages: see Attorney General of Trinidad and Tobago v. Lakhan Civ. App.

No. 154 of 1997 per Nelson JA at page 13. As there is before this Court, no

14 See also in this regard, Kowlessar and Kowlessar v. AG of T/T Civ. App. No. 167 of 2005.

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evidence of any pecuniary loss suffered by the claimant, any award to which the

claimant may be entitled, must be limited to the distress and inconvenience

suffered by the claimant during the period of his unlawful detention from 3 April

2003 to 7 April 2004: see the cases of Ronald Gordan supra, and Maharaj v.

Attorney General of Trinidad and Tobago No. 2 (1979) AC 385.

51. In his originating motion, the claimant seeks inter alia, monetary compensation

including aggravated and/ or exemplary damages. The Court notes that in addition

to not advancing a loss of earnings claim, the claimant has likewise not provided

any evidence, on affidavit, of the conditions to which he was subjected while

incarcerated. Perhaps this is a happy indicator that the claimant was not the

victim of inhumane prison conditions as is so often the cry in cases such as the

present. The consequence of these notable voids in the claimant’s affidavit simply

means that the Court therefore has to determine the appropriate level of

compensation to be awarded to the claimant for deprivation of his liberty in

breach of his constitutional rights per se. The period of consideration is as

aforementioned, from 3 April 2003 to 7 April 2004- a total of approximately 12

months or 369 days.

52. Neither side has suggested to the Court a likely award of reasonable

compensation. In Lezama and Marryshaw supra, Stollmeyer J. explained the

need for proportionality in any award of damages in constitutional claims at page

15 of that judgment:

“An award of damages must be commensurate with the right that has been

breached, the manner in which it is breached and the consequences that

flow from the breach. In some cases, a declaration only will be

appropriate to meet the justice of the case, being itself a powerful

statement which can go a long way in effecting reparation of the breach, if

not altogether doing so. In others, an award of substantial damages may

be called for in addition to the declaration. The quantum of the award will

reflect the seriousness of the right that has been breached, the manner in

which it was breached, and the consequences flowing from the breach,

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including the elements of distress and inconvenience. The quantum will

vary from case to case, and depend upon an assessment of these factors.”

53. The right to liberty is heralded among the most basic and fundamental

constitutional rights, and so too are the rights to fair hearing and procedural

safeguards. The seriousness of these rights cannot be impugned and in this case

where the breach has occurred in a manner which reeks of administrative

inefficiency and reckless disregard for time, procedure and basic human rights, I

make no hesitation in awarding monetary compensation in addition to the

declaratory reliefs the claimant seeks. Given those factors, and significantly, the

distress and inconvenience occasioned to the claimant as a result of those

breaches, this Court hardly needs persuading that the instant is a case that merits

this approach. I am further reinforced in my views by what Stollmeyer J. said in

Lezama and Marryshaw supra at page 14:

“Awards of monetary compensation for breach of a constitutional right

appear based upon three principle factors. First, they are compensatory

to the individual whose constitutional right has been breached. This is

well recognized (see e.g. Maharaj v. Attorney General of Trinidad and

Tobago (No. 2) [1979] AC 385). Second, they acknowledge the

significance and sanctity of that right and the need for its strict

preservation (see Russell & Ors v. Attorney General of St. Vincent and the

Grenadines (1996) 50 WIR 127). Third, they can, and should where

appropriate, be regarded as some form of deterrent to the State against

committing, or permitting, recurrences.” [emphasis added]

54. The three factors outlined above profoundly impact on the Court’s treatment of

the breaches complained of in the instant case, as they inherently demand that

violation of a person’s constitutional rights is not a matter to be lightly or

arbitrarily regarded. In the premises therefore, this Court thinks it fitting to

separate the award for breach of the claimant’s constitutional rights per se from

the award for his unconstitutional and unlawful detention for the period of 369

days.

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55. In Bryan Lynch v. Attorney General of Trinidad and Tobago CV 2008-

01595, des Vignes J. employed a similar approach where the claimant sought

declaratory orders as well as monetary compensation, including aggravated and

vindicatory damages, as a result of the failure of the Prison Authorities to deliver

his Notice of Appeal within the seven (7) day period prescribed by section 130 of

the Summary Courts Act Chap. 4:20, and also as a result of his unlawful detention

from 24 July 2000 to 27 May 2002. In the judgment delivered on 30 November

2009, the learned Judge awarded $7,500.00 for breach of the claimant’s

constitutional rights under section 4 (a) and (b) of the Constitution. A further

$450,000.00 was awarded as compensation for the distress and inconvenience the

claimant suffered during the period of unconstitutional detention for 672 days.

56. In Lezama and Marryshaw supra, the Court on 13 February 2003 declined to

make an award for exemplary damages and awarded $5,000.00 to each of the

claimants for breach of their constitutional right under s. 4 (b) of the Constitution.

A similar delay in delivering the claimant’s Notices of Appeal obtained in that

case as in Bryan Lynch. Stollmeyer J. did not make a substantial award because

inter alia, the claimants advanced no claim that they suffered any pecuniary or

other consequential loss as a result of the breach and there was no deprivation of

liberty because of the claimant’s guilty plea. In the instant case, the claimant has

also failed to make a claim for pecuniary or other consequential loss following the

infringement of his constitutional rights. However it is significant to note in this

case that the claimant’s appeal against conviction and sentence was allowed-

underscoring both the unlawfulness of the sentence and the period of

unconstitutional detention that followed.

57. In Perry Matthew v. Attorney General of Trinidad and Tobago HCA No.

3342 of 2004, $6,000.00 was awarded in 2007 to the claimant for breach of his

constitutional rights under s. 4 (a) and (b) of the Constitution, and a separate

award of $350,000.00 was made for the distress and inconvenience suffered

during the period of unconstitutional detention.

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58. In the present case, the claimant claims infringement of sections 4 (a), 5 2 (e) and

5 2 (h) of the Constitution- the rights to liberty, fair hearing and procedural

safeguards. As aforementioned, these are very grave breaches, but I think what

militates against the claimant to some degree is that he has advanced no claim as

to any pecuniary or consequential loss that he may have suffered as a result of

said breaches. To my mind, this would have gone a far way in demonstrating the

gravity and extent of the breaches, such as to entitle the claimant to an award over

and above that which may be normally awarded by virtue of the fact that the

breach is one to constitutional rights: see Subiah v. AG of Trinidad and Tobago

CA Civ. 10 of 2005 at para. 11 in this regard:

(“Consistent with the view expressed in Ramanoop that breaches of

fundamental rights bear a special character, it would be appropriate,

though not always necessary to award a sum of money in addition to

granting a declaration. This would help to underscore the importance of

the constitutional right.”

59. The claimant described himself as a carpenter in his affidavit. There is absolutely

no evidence, and perhaps more perplexing- no claim for loss of earnings by the

claimant as a result of his unlawful incarceration. Those omissions considered, the

Court therefore awards the sum of $9,500.00 for breach of the claimant’s rights

per se under sections 4 (a), 5 2(e) and 5 2 (h) of the Constitution.

60. On the issue of unlawful detention, such an award must compensate for the

distress and inconvenience the applicant suffered during incarceration and must

take into account any aggravating factors which may justify an uplift in the award.

Unfortunately, or perhaps fortunately, the claimant has provided no evidence of

the distress and inconvenience he suffered while incarcerated. In the absence of

such direct evidence, this Court must infer that ipso facto the unlawful detention,

the claimant suffered distress and inconvenience. This complicates the already

difficult task the Court has of attributing a figure to that which can never truly be

quantified. As Hamel-Smith JA said at page 8 of Crane v. Rees & Ors. Civ.

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App. No. 201 of 1997, albeit a case where there was substantial evidence of

distress and inconvenience:

“The extent of the victim’s suffering and distress naturally differs from

case to case. Accordingly, the Court must, while maintaining a measure of

consistency in its awards, determine the grief and agony of the particular

victim, the suffering and humiliation endured and translate that into

dollars and cents.”

61. In determining an appropriate quantum in this respect, the Court must seek

guidance from comparative awards to discern a trend that meets the justice of this

case.

61.1. In November 2000, the Court of Appeal in Millette v. Sherman

McNicolls CA Civ. 14/2000, a case of judicial review, upheld an award of

$145,000.000 for unlawful detention of 132 days, preferring not to

interfere with the award although it was of the view that it was on the low

side. The Court considered that the appellant was 72 years old at the date

of imprisonment, was made to do heavy work and there was no evidence

of prison conditions.

61.2. In May 2002, Hamel-Smith J. awarded $225,000.00 for 691 days of

detention in Anneson Stanisclaus supra. The learned Judge found that

there were no aggravating circumstances to increase the award beyond the

amount awarded.

61.3. In February 2005, Justice Ventour in Ronald Gordon v. AG of

Trinidad and Tobago HC 1760 of 2001 awarded the claimant $40,000.00

for a detention of 36 days. There was no evidence of any pecuniary loss

suffered by the claimant. The learned Judge awarded an additional

$5,000.00 to the claimant for breach of his right under s. 4 (a) of the

Constitution.

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61.4. In George Noriega v. AG of Trinidad and Tobago HC 1688A of 2005,

Master Paray-Durity awarded $545,000.00 inclusive of an award for

vindicatory damages, for wrongful detention of 737 days. In that case,

breach of the applicant’s constitutional rights not to be deprived of his

liberty except by due process, not to suffer arbitrary detention and a

breach under s. 5 (2) (h) of the Constitution arose from the failure of the

respondent to assess the applicant’s mental condition and review his case

to determine whether he should be released from detention. The Court

found that the State’s two year delay in conducting the review of the

applicant in spite of a court order was an aggravating factor to be taken

into account in making the award.

61.5. On 2 May 2007, Jones J. awarded $125,000 to the claimant for unlawful

detention, and a further $25,000.00 as additional damages in the case of

Dereck Hamilton v. The Commissioner of Prisons and the AG of

Trinidad and Tobago HCA No. 950 of 2005.

61.6. In June 2007, Jamadar J. in Perry Matthew v. Attorney General of

Trinidad and Tobago supra, awarded the claimant $350,000.000 for

unlawful detention of 409 days. This figure took into account the

deprivation, distress and angst suffered by the applicant as a result of the

unconstitutional deprivation of his liberty. The learned Judge awarded an

additional $6,000.00 to the applicant for breach of his constitutional right

per se and $58,424.00 for loss of earnings during the period of his

unconstitutional incarceration.

61.7. As aforementioned, in Bryan Lynch (2009), the Court awarded

$450,000.00 for a period of unlawful detention spanning 672 days. The

claimant there gave evidence “of his embarrassment and [the] indignity of

being imprisoned in cramped and insanitary conditions.”

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62. In the opinion of this Court, bearing in mind the recent trends in awards of a

similar nature, and in particular, that the claimant has made no claim for

pecuniary or other consequential loss and the fact that there is no evidence of

prison conditions, this Court thinks that an appropriate award for the period of

unlawful detention for 369 days is $300,000.00. The Court has also considered

that there is no evidence to suggest that the delay in listing the claimant’s appeal-

grossly unfortunate as it was- was accentuated by any mal-intent. As

aforementioned, this seems to be a case of administrative inefficiency. I can only

hope that the unfortunate circumstances of this case serve as the proper

admonition that especially insofar as a person’s fundamental rights are concerned,

the belated plea of administrative inefficiency on the part of the relevant

authorities and any appropriate award of damage do little to compensate the

victim, who has already lost his freedom for a far too unreasonable period.

The order

63. In all of the above circumstances, this Court makes the following declarations and

orders:

63.1. A declaration that the continued imprisonment and/ or continued detention

of the claimant between the period 3 April 2003 to 7 April 2004 was

unconstitutional;

63.2. An order that the following monetary compensation be paid to the

claimant as a result of the above described unconstitutional action:

63.2.1. $9,500.00 for breach of the claimant’s constitutional rights per

se; and

63.2.2. $300,000.00 as compensation for the period of unlawful

detention.

63.3. The respondent shall pay interest on these sums from March 28 2008 at

the rate of 9% per annum.

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63.4. The respondent shall pay the claimant’s prescribed costs assessed in the

respondent shall pay the claimant’s prescribed costs assessed in the sum of

$97,492.50.

Devindra Rampersad J

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