THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV 2011 - 04459

Between

Ricardo Youk-See

First Claimant

Randy Youk-See

Second Claimant

Kairon Baptiste

Third Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

BEFORE THE HONOURABLE MR. JUSTICE A. DES VIGNES

Appearances:

Mr. Abdel Mohammed and Mr. Kent Samlal for the Claimants

Ms. Raisa Caesar instructed by Ms. Zelicia Haynes for the Defendant

JUDGMENT

1. In this action, the First, Second and Third Claimant (“the Claimants”) claim against the

Defendant damages for false imprisonment, assault and battery and detinue and/or

conversion. The Defendant is sued in its capacity as the Legal Representative of the State and

as the employer of Police Officers in the Trinidad and Tobago Police Service pursuant to the

provisions of the State Liability and Civil Proceedings Act, Chapter 8:02 (“the Act”).

THE CLAIM

2. By Claim Form and Statement of Case filed on 16th

November, 2011 the Claimants allege

that they were arrested by police officers and detained unlawfully without charge at the

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Chaguanas Police Station (“the Station”) from 8:30 p.m. on 11th

March, 2010 to 9:30 a.m. on

14th

March, 2010, a period of approximately 61 hours.

3. The Claimants allege that:

a. On or about 11th

March, 2010 at approximately 8:00 p.m., they arrived at Superpharm

located at Price Plaza Shopping Complex, Chaguanas in a Nissan Sentra Motor

Vehicle, registration number HAZ 4588, (“the Sentra”) which was owned and driven

by the First Claimant. The First Defendant entered Superpharm and, while the

Second and Third Claimants remained in the Sentra, a Hyundai Tucson Motor

Vehicle, registration number PBZ 1690 ( “the Tucson”) approached and blocked the

Sentra;

b. Two police officers dressed in Task Force attire alighted from the Tucson and asked

the Second and Third Claimants for the driver of the Sentra. The Second and Third

Claimants provided the officers with the name of the First Claimant and informed

them that he was in Superpharm purchasing some items;

c. The police officers then instructed the Second Claimant to drive the Sentra to the

southern section of the car park, in the vicinity of Subway to a “dark corner of the

car park”;

d. When the First Claimant came out of Superpharm, he could not find the Sentra so he

called the Second Claimant who informed him of what had occurred. The First

Claimant then met the two Police Officers who requested of him his policy of

insurance, certified copy and engine receipts for the Sentra which he provided;

e. The Police Officers informed the First Claimant that the registration number of the

Sentra matched a stolen number plate of a Nissan B14 motor vehicle. The First

Claimant denied that the number plates were stolen and insisted that he was the

certified owner of the Sentra;

f. The Police Officers then began to shout expletives at the Claimants, maintaining that

the Sentra was a stolen vehicle and then proceeded to shove them into the Tucson and

transported them to the Station. There were three other police officers in a white

unmarked police vehicle which accompanied the Tucson and one of the Officers

present at the time of their arrest drove the Sentra to the Station;

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g. At approximately 8:40 p.m., the Claimants were taken to the Criminal Investigations

Division (CID) section of the Station where they were searched and their personal

items were seized. The names of the Claimants were entered in the Station’s

computer and this search revealed that the First and Second Claimants had pending

matters against them. Upon discovering this, the police officers at the CID, whose

identities were unknown to the Claimants, began accusing the Claimants of being

drug transporters and the officers shouted expletives at them for about five (5)

minutes;

h. The Claimants were then grabbed by the officers and one of the officers shouted, “all

of allyuh is gunman and car thief and we go deal with allyuh. We will show you how

central police does do it!” The Claimants were then flung onto the ground and

kicked, slapped and beaten about their heads, backs, hands, chest and facial areas.

This beating by the police officers continued for approximately thirty (30) minutes;

i. The Claimants were subsequently handcuffed and dragged to a room at the side of the

Station where the First and Second Claimants were kicked and slapped about their

bodies by a party of between five and eight police officers and were forced to sit in a

barrel of water. The First Claimant pleaded with the officers that he could not sit

down as he had an open wound on his left hand but the officers continued to shout

expletives at him for a further ten minutes. While the Claimants were being beaten,

the Second and Third Claimant were removed from the barrel and taken back

separately by the officers to the Superpharm car park at approximately 10:00 p.m. “to

see if they get anything”. At the Superpharm car park, the officers accused the Second

and Third Claimants of being car battery and laptop thieves. The officers slapped and

struck the Second and Third Claimants with a gun and threatened to kill them. At

about 10:45 p.m. the Second and Third Claimants were taken back to the Station

where they were placed back into the room at the side of the Station with the First

Claimant;

j. One of the police officers came into the room with a taser gun which he referred to as

“mammy”. The First and Second Claimants were thrown into a barrel of water and

electrocuted several times with the taser gun. The Third Claimant was held down by

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the officers and struck about his belly, back, hands, groin and genitals with a golf club

and he was also electrocuted with the taser gun;

k. One of the Police Officers then brought out another taser gun which he referred to as

“daddy” and said “feel big daddy now because mammy ain’t doing nothing”. The

torture of the Claimants continued until about 1:45 a.m. on 12th

March, 2010. At

approximately 2:30 a.m. the Claimants were given a wet cloth to wipe their bruises

and wounds they received from the beating and they were then logged into the Station

Diary and placed in a holding cell and informed that they had to remain in custody as

they were being held “on enquiries” ;

l. The Claimants remained in the cell from 2:30 a.m. on 12th

March 2010 to

approximately 9.30 a.m. on 14th

March 2010 when they were released without charge;

m. Upon leaving the Station, the Claimants requested the return of their belongings but a

police officer informed them they would have to return the next day to collect their

items. The Claimants visited the Station on the 15th

March 2010 and requested the

return of the Sentra and their belongings. Sergeant Kissoonlal returned to the First

Claimant his groceries from the Sentra but informed the Claimants that there was no

record at the Station of their personal items and that the Sentra had to be examined by

the Forensic Sciences Center;

n. On 16th

June, 2010 the First Claimant, accompanied by his mother, visited the Station

and made a request of Superintendent Cummings for the return of the Sentra.

Superintendent Cummings responded that the Sentra was cleared and would be

returned to him. Approximately one hour later, the keys to the Sentra were given to

the First Claimant. However, before the First Claimant was able to enter the Sentra,

another police officer attached to the Robbery Squad at the Station violently grabbed

the keys from him and told him that the Sentra could not leave the Station as it had to

be sent to the Forensic Science Center for testing. Subsequently, Superintendent

Cummings informed the First Claimant that the Sentra could not be released. To date,

the Claimants’ personal belongings and the Sentra have not been returned, despite

several attempts to secure their release; and

o. By reason of these matters, the Claimants have suffered personal injuries, pain and

suffering, distress, humiliation, loss and damages.

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4. The First and Second Claimants alleged that they suffered the following personal injuries as

set out in the Medical Report of Dr. Vernel Ayhew dated April 7, 2010 and the Medical

Report of Dr. Emanuel C. Hosein dated August 23, 2010:

First Claimant –

Left sided anterior chest wall tenderness;

Left shoulder mildly swollen over deltoid region, with slightly reduced range of

motion due to pain;

Generalized body pain mainly of left chest and forearm;

Tenderness to left ribcage in mid axillary line;

Tiny spot “scratches” to left upper arm (allegedly from shock device”);

Left ear tender; and

Tenderness at site of old 5 inch laceration to left forearm.

Second Claimant –

Tenderness of anterior chest wall and lower back region;

Multiple scars starting to heal extending over superior region of the back;

Generalized body pains mainly of his chest, back and head;

Multiple scratches to chest and abdomen with tenderness;

Multiple scratches and bruises to head, neck, back and upper arms with

tenderness and tenderness to left shoulder;

3 inch deep scratch to left thigh; and

Small bruises with swelling to right ankle.

5. The Third Claimant alleged that he suffered the following personal injuries as set out in the

Medical Report of Dr. Emanuel C. Hosein dated August 23, 2010:

Third Claimant –

Multiple small scratches to upper chest, right hand (at base of thumb) and right

elbow; and

Tenderness to right lower ribcage, right lower leg and top of hand.

6. The Claimants claim that they have suffered the following special damages:

First Claimant - special damages of $73,450 and continuing (to be updated at trial) for -

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Detinue/conversion of a Sony Ericsson phone $ 1,500.00

Detinue/conversion of one gold chain $ 5,000.00

Detinue/conversion of cash $ 1,500.00

Detinue of Sentra $17,000.00

Loss of use of Sentra for 16 months $48,000.00

Loss of earnings for three days $ 450.00

Second Claimant - special damages of $500 for -

Detinue/conversion of a Motorola mobile phone $ 500.00

Third Claimant - special damages of $600.00 for -

Detinue/conversion of a Nokia mobile phone $ 300.00

Detinue/conversion of cash $ 300.00

7. Further, the Claimants allege that their reputation was injured and they were put through

considerable trouble, inconvenience, anxiety and expense and that the conduct of the police

officers was arbitrary, oppressive and/or unconstitutional.

8. As a consequence, the Claimants claim damages, including aggravated and exemplary

damages for false imprisonment, assault and battery and detinue and/or conversion together

with interest thereon at such rate and for the period that the Court deems just pursuant to

Section 25 of the Supreme Court of Judicature Act and costs.

THE DEFENCE

9. By Defence filed on June 1, 2012, the Defendant contends that it is not the employer of the

Officers but is only subject to liabilities in tort committed by the Officers pursuant to the Act.

10. The Defendant puts the Claimants to strict proof that the First Claimant was the driver and

owner of the Sentra. The Defendant admits that the officers approached the Second and Third

Claimant but contends that when they did so the Sentra was being driven by the Second

Claimant who was then instructed to park in front of the Pricesmart Building. The Defendant

further admits that the officers were told about the First Claimant’s whereabouts.

11. It is the Defendant’s case that the investigating and arresting officer was Corporal Balkaran,

Regimental No. 13767.

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12. The Defendant admits that the First Claimant was informed that the Sentra’s registration

number matched that of a stolen vehicle, but denies that the officers requested the production

of any documents. It is the Defendant’s case that the Claimants were cautioned, arrested and

taken to the Station. The Defendant denies that the officers used expletives or shoved the

Claimants. Further, the Defendant denies knowledge of an unmarked vehicle accompanying

the Tuscon.

13. The Defendant avers that that the Claimants were interviewed separately in relation to the

Sentra. The Defendant admits that the Claimants were placed in a holding cell and informed

that they were being held “on enquiries” and were released without charge at about 9:30

a.m. on March 14, 2010.

14. The Defendant avers that the Claimants were arrested in order to further enquiries in relation

to recent serious reported crimes, suspected warrants and the Sentra and that the Claimants

were informed of their constitutional rights and privileges but made no requests. It is the

Defendant’s case that Corporal Balkaran and the other officers involved in the investigation

had reasonable and probable cause to arrest the Claimants and seize the Sentra. The

Defendant intends to rely on the Police Service Act, Chapter 15:01 for its full terms,

meaning and effect.

15. The alleged particulars of reasonable and probable cause are as follows:

a. There was information regarding a spate of robberies in the Price Plaza Compound

and acting on this information, officers conducted surveillance in the area on March

11, 2010 when Corporal Balkaran observed the Sentra manoeuvring suspiciously

(driving at a slow pace through the compound and stopping in the vicinity of

unoccupied parked vehicles);

b. Information from the E999 Command Center revealed that the registration number on

the Sentra was registered to a green Nissan B14 Motor Vehicle under the name Nigel

Lewis while the Sentra they were observing was a Nissan B12 Motor Vehicle. As

such, Corporal Balkaran and Constable Chalerie (Regimental No. 13658) approached

the Sentra, at which time the First Claimant arrived and introduced himself as the

owner.

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c. Corporal Balkaran informed the Claimants of the information in his possession

regarding the Sentra cautioned them and took them to the Station where they were

separately interviewed;

d. The Officers made calls to Stations in the Northern district to enquire whether the

Claimants were wanted for any enquiries. Corporal Balkaran was later informed that

officers from the Tunapuna Station would collect the Claimants in relation to

investigations in the Northern Division. On March 14, 2010 the Claimants remained

uncollected and Inspector Levia released them; and

e. On May 14, 2010 Josanne Salina, Scientific Officer I – Forensic Science Center,

examined the Sentra and subsequently provided a Certificate of Analysis dated

November 12, 2010 to Corporal Balkaran. This certificate indicated that the chassis

number on the Sentra was not the original and that a portion of the firewall was cut

and replaced with another bearing the visible number. As a result of this Corporal

Williams, Regimental No. 14244, of the Stolen Vehicles Squad was instructed to

continue enquiries (which are still ongoing) as it was believed that the Sentra

belonged to someone else.

16. The Defendant denies that any accusations were levied against the Claimants, neither were

any of their personal belongings seized or found on them.

17. The Defendant makes no admission as to the alleged beatings of the Claimants as this is the

subject of a related criminal matter and put the Claimants to strict proof thereof. The

Defendant further denies the allegations that the Claimants were shocked with a taser.

18. The Defendant admits that the Second Claimant was taken back to Superpharm by Corporal

Aroon and other officers as he was assisting them with their investigation into larcenies in

the area. The Defendant denies that there was any threat to kill the Claimants.

19. The Defendant neither admits nor denies the Claimants’ allegations regarding repeated

requests for the return of the Sentra or personal belongings seized as it has no knowledge of

this and put them to strict proof thereof.

20. The Defendant neither admits nor denies the Claimants’ particulars of injury and puts them to

strict proof thereof. The Defendant further avers that medical records indicate pre-existing

injuries of the First and Third Claimant.

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21. The Defendant denies liability for detinue or conversion of the personal belongings of the

Claimants as the alleged items were not found on the Claimants or taken by the officers

involved. The Defendant further denies liability and detinue for the Sentra or for its loss of

use as it is still the subject of investigations as to its ownership.

22. The Defendant denies liability for any loss of earnings or general damages and puts the

Claimants to strict proof thereof. The Defendant also denies the Claimants claim for

aggravated and exemplary damages.

23. The Defendant denies that the officers were under its direct direction and control and that the

Claimants were falsely imprisoned or that there was detinue or conversion of their property

and makes no admission in relation to assault and battery as these allegations are before the

criminal court.

THE REPLY

24. In its Reply filed July 27, 2012 the Claimants join issue with the Defendant. The Claimants

state that at no material time did the officers inform them of the information in their

possession or caution them.

25. The Claimants aver that upon their arrival to the Station the Second Claimant was beaten by

Corporal Balkaran and deny that they were ever interviewed by any of the officers, informed

of their constitutional rights or given an opportunity to make a telephone call.

26. The Claimants deny the allegations of reasonable and probable cause and aver that at no time

did they drive the Sentra in a suspicious manner through the compound and/or stop by

unoccupied vehicles.

27. The Claimants aver that the First Claimant is the owner of the Sentra which he purchased

from Debra George and has no knowledge of the registration number being registered to

another vehicle. The Claimants also contend that the Certificate of Analysis is hearsay and

requires that Ms. Salina present herself for cross-examination on same.

28. The Claimants further allege that the injuries they sustained were as a result of the beatings at

the hand of the Officers. The First Claimant states that a pre-existing wound to his left

forearm was affected due to the beatings while the Third Claimant denies knowledge of any

pre-existing injury.

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THE ISSUES

29. I am of the view that the following issues fall to be determined in this matter:

a. Were the Claimants falsely imprisoned on the account of their unlawful arrest and

detention?

b. Were the Claimants wrongfully and illegally assaulted and battered by police officers

at the Station?

c. Is the Defendant liable to the First Claimant for detinue/conversion of the Sentra?

d. Is the Defendant liable to the Claimants for detinue/conversion of their personal

items?

e. Are the Claimants entitled to damages, including aggravated and exemplary

damages?

A: WERE THE CLAIMANTS FALSELY IMPRISONED ON ACCOUNT OF THEIR

UNLAWFUL ARREST AND DETENTION?

The Law

30. As it relates to the tort of false imprisonment, Halsbury’s Laws of England,1 states as

follows:

“A claim of false imprisonment lies at the suit of a person unlawfully imprisoned against

the person who causes the imprisonment. Any total restraint of the liberty of the person,

for however short a time, by the use or threat of force or by confinement, is an

imprisonment . A constable is liable in false imprisonment if he unlawfully arrests or

detains another in circumstances which do not amount to a valid arrest. He is also liable

if he makes a lawful arrest but does not comply with the conditions for continued

detention, or if he detains the person for an unreasonable time without taking him before

a magistrate.”

31. According to Section 3(4) of the Criminal Law Act, Chapter 10:04:

“Where a Police Officer, with reasonable cause, suspects that an arrestable offence has

been committed, he may arrest without warrant anyone whom he, with reasonable cause,

suspects to be guilty of the offence.”

1 Volume 84 (2013) at para 435.

https://www.lexisnexis.com/uk/legal/#ref3834415F506F6C6963655F3031283433322D343638295F35_1

https://www.lexisnexis.com/uk/legal/#ref3834415F506F6C6963655F3031283433322D343638295F35_2

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32. Section 46(1)(d) of the Police Service Act, Chapter 15:01 provides that a Police Officer

may arrest without a warrant:

“a person in whose possession anything is found which may reasonably be suspected to

have been stolen or who may reasonably be suspected of having committed an offence

with reference to such thing;”

33. Therefore, the issue of liability for the tort of false imprisonment turns initially on the factor

of reasonable and probable cause to effect a lawful arrest. In Richardson & Another v The

Attorney General of Trinidad and Tobago,2 Madam Justice Dean-Armorer adopted the

definition of the phrase, “reasonable and probable cause” as set out in the Court of Appeal

decision of Hicks v Faulkner,3 which was later adopted by the House of Lords in Herniman

v Smith.4 In Hicks (supra) Hawkins J, provided the following definition:

“… I should define reasonable and probable cause to be an honest belief in the guilt of

the accused, based upon a full conviction, founded upon reasonable grounds, of the

existence of a state of circumstances which, assuming them to be true, would reasonably

lead any ordinarily prudent and cautious man, placed in the position of the accuser, to

the conclusion that the person charged was probably guilty of the crime imputed…”

34. The tort of false imprisonment received authoritative consideration by the Privy Council in

the recent decision in Ramsingh v The Attorney General of Trinidad and Tobago.5 The

Privy Council held that the issue for determination was whether the Appellant’s detention

was lawful and amounted to the tort of false imprisonment. It was noted that at the trial the

Appellant’s case was that both his arrest and detention were unlawful. However, before the

Board, it was accepted by the Appellant that the arrest itself was lawful. In his judgment,

Lord Clarke summarised the relevant principles:

“[8] The relevant principles are not significantly in dispute and may be summarised as

follows:

“i) The detention of a person is prima facie tortious and an infringement of

section 4(a) of the Constitution of Trinidad and Tobago.

ii) It is for the arrestor to justify the arrest.

2 HCA No. CV 2007-2686 – Delivered on January 8, 2013.

3 (1881-1885) All ER Rep 187 at page 191.

4 (1938) All ER Rep 1 at page 8.

5 (2012) UKPC 16 at paras 8 – 11.

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iii) A police officer may arrest a person if, with reasonable cause, he suspects that

the person concerned has committed an arrestable offence.

iv) Thus the officer must subjectively suspect that that person has committed such

an offence.

v) The officer's belief must have been on reasonable grounds or, as some of the

cases put it, there must have been reasonable and probable cause to make the

arrest.

vi) Any continued detention after arrest must also be justified by the detainer.”

[9] These principles are established by a series of cases, both in England and in the

Caribbean. See in particular Dallison v Caffery [1965] 1 QB 348, [1964] 2 All ER 610,

128 JP 379, per Lord Denning MR at 617 and per Diplock LJ, in a well-known passage

at 619; and Holgate-Mohammed v Duke [1984] AC 437, [1984] 1 All ER 1054, [1984] 2

WLR 660 per Lord Diplock at 1059. See also two decisions in Trinidad and Tobago

which make it clear that the lawfulness of continued detention raises different questions

from those relevant to the arrest: Mauge v The Attorney General of Trinidad and Tobago

HCA No 2524 of 1997 and Mungaroo v The Attorney General of Trinidad and Tobago

HCA Nos S-1130 and 1131 of 1998.

[10] The position after arrest in England is now to be found in Pt IV of the Police and

Criminal Evidence Act 1984 (“PACE”): see s 34. Section 37(2) provides that, where a

person is arrested without a warrant and the custody officer does not have sufficient

evidence to charge him, the person arrested must be released either with or without bail:

“unless the custody officer has reasonable grounds for believing that his

detention without being charged is necessary to secure or preserve evidence

relating to an offence for which he is under arrest or to obtain such evidence by

questioning him.”

As Clayton and Tomlinson put it in their Law of Human Rights, 2nd edition (2009), at

para 10.56, the police must justify detention on a minute by minute basis.

[11] Although PACE does not directly apply in Trinidad and Tobago, s 37(2) reflects the

correct approach at common law. Thus in the instant case the person who decided to

continue the Appellant's detention pending the obtaining of a report upon the medical

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state of the victim must have had reasonable grounds for believing that the Appellant's

detention without being charged was necessary pending the securing of that evidence.”

[emphasis mine].

35. In Mauge & Others v The Attorney General of Trinidad and Tobago & Others6Mendes

J. (Ag) as he then was, dealt with, inter alia, the issue of the arrest and detention of a

husband and wife for approximately 36 hours. The couple was arrested upon suspicion of

having stolen certain documents discovered by police during their execution of search

warrants (for other items, not found) at properties owned by the Applicants. On the facts, the

couple was arrested between 2.30 p.m. to 3.00 p.m. on 7th

February, 1997 and released

without charge at 1.00 a.m. on 9th

February, 1997. Mendes J (Ag) was of the view that on the

evidence or rather lack thereof, there was no investigation conducted into the suspicions of

the police in relations to the couple while they were being detained. He stated as follows:

“There is a remarkable absence of any attempt on the part of any of the police officers

involved in this case to give any account of what action they took to further the

investigation which began with the arrest of the Mauge’s”7

36. Accordingly, Mendes J (Ag) was of the opinion that the question to be answered in the

determination of this issue was:

“Did this inactivity on the part of the police officers turn what was initially a lawful

arrest into an unlawful detention?”8

37. In arriving at a conclusion on this issue, Mendes J (Ag) referenced Lord Diplock in Holgate-

Mohammed v Duke9 in which the law lord spoke to the inevitability of potential conflict

between the public interest in preserving liberty and that of crime detection and bringing

offenders to justice. He stated that Lord Diplock also observed that it was legitimate to use

the period of detention following a lawful arrest “to dispel or confirm the reasonable

suspicion by questioning the suspect or seeking further evidence with his assistance.”

38. In light of this as well as the Respondent’s failure to explain the conduct of the police,

Mendes J (Ag), held that detention of the husband beyond 4.30 p.m. on 7th

February, 1997

and of the wife from the moment of her arrest, was unlawful and in violation of their human

6 HCA No. 2524 of 1997

7 Ibid at page 28.

8 Ibid at page 29.

9 (1984) 1 All E.R. 1054 at page 1059.

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rights and that they were entitled to damages in this regard. In his summation he had this to

say:

“In my judgment, not only is it legitimate to use the power of arrest and subsequent

detention to further enquiries into the suspected offence; indeed, it is mandatory that

these enquiries be conducted to either to confirm or dispel the reasonable suspicion. For

it appears to me that where no real effort is made to further the investigation into the

suspected offence in order to advance the public interest in the detection of crime, the

equally important public interest in preserving the liberty of the individual would be

unnecessarily and arbitrarily sacrificed.”10

39. In Balchan and Mungaroo v The Attorney General of Trinidad and Tobago11

the First

Claimant alleged, inter alia, that he was wrongfully detained without charge by the police.

On the evidence, the First Claimant was interviewed on several occasions by the police while

in custody and a cautionary statement was obtained from him after which he was allowed to

leave. Mendonca J. (as he then was) cited Holgate-Mohammed (supra) and Mauge (supra)

and reasoned as follows:

“In this jurisdiction the Constitution requires that the person who is arrested and

detained must be brought promptly before a judicial authority. That introduces a

limitation as to the length of time the suspect may be detained but the constitutional

requirement cannot be used as a defence when having regard to the circumstances of the

case the suspect ought to have been released sooner. The constitutional requirement does

not give the right to the police to detain a person for however long it might take to bring

him before a judicial authority. It is as it were the outside limit: a time beyond which the

arrested person should not be detained before he is brought before a judicial authority.

Subject to that limitation the obligation of the police in each case is to act reasonably and

they would have so acted, if the arrested person is detained for no longer than necessary

to conduct further inquiries be it inquiries that must be conducted outside the police

station or by the interrogation of the suspect and the potential witnesses.”12

10

Ibid at page 31. 11

HCA No. 1131 of 1998/HCA No. S-1130 of 1998. 12

Ibid at pages 21 – 22.

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40. In Ali v The Attorney General of Trinidad and Tobago,13

Rajkumar J. found that as it

related to the issue of the arrest and detention of the Claimant, the arresting officers had

sufficient reasonable and probable cause to justify his arrest and some part of his detention

while certain aspects of his detention were unreasonable. In his analysis of the law he stated

as follows in paras 44 to 47:

“[44.] The onus is on the police to justify the arrest of the Plaintiff in an action for

unlawful arrest and to establish reasonable and probable cause for the arrest: (Dallison

v Caffery [1965] 1 Q.B. 348 at 370).

[45.] The test required was stated in O’ Hara v Chief Constable of the Royal Ulster

Constabulary [1997] 1 AER 129 p 138j –139a) per Lord Hope of Craighead as partly

objective and partly subjective. The test is subjective because the arresting Police Officer

must have formulated a genuine suspicion within his own mind that the accused person

has committed the offence.

[46.] Further, the test is partly objective as reasonable grounds for the suspicion are

required by the arresting officer and this must be judged at the time when the power is

exercised. (See also the judgment of the Honourable Mendonca J as he then was in

Harold Barcoo v A.G of T. & T. and Browne – HCA 1388 of 1989 delivered December

19, 2001 page 5 –6 where he adopted the following analysis from the text (Clayton &

Tomlinson Civil Actions against the Police (1987).

i. The test whether there was reasonable and probable cause has both subjective

and objective elements.

ii. Did the officer honestly have the requisite suspicion or belief?

iii. Did the officer when exercising the power honestly believe in the existence of

the objective circumstances which he now relies on as the basis for that

suspicion or belief?

iv. Was his belief in the existence of these circumstances based on reasonable

grounds?

13

HCA No. CV 2012-02695 – Delivered on March 20, 2014.

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v. Did these circumstances constitute reasonable grounds for the requisite

suspicion or belief?

[47.] The first two are subjective and the second are objective and as the Honourable

Justice Mendonca, as he then was, pointed out, if the answer to any one of these

questions is “no” then the officer would not have had reasonable grounds.

41. Accordingly, the objective element of the test of reasonable and probable cause requires a

determination of whether a reasonable man having knowledge of the facts that the Defendant

knew at the material time, would have believed that the Claimant was guilty of the alleged

crime. Conversely, the subjective aspect of the test looks at whether the arresting officer has

formulated a genuine suspicion within his own mind that the accused committed the

offence.14

42. As it relates to the issue of whether continued detention is justifiable, in Ramsingh

(supra),15

the Privy Council held that this was dependent upon all the circumstances of the

case. Lord Clarke stated as follows:

[16.] The answer to this question depends upon all the circumstances of the case. As

explained above, the Respondent must show that the whole period of detention was

justified. However, while it would be wrong in principle to hold that, because the initial

arrest was justified, it follows that the subsequent detention was also justified, it is

important to consider the subsequent detention in the light of the arrest...

[19.] It is submitted on behalf of the Respondent that, given the reasonable suspicion that

the assault was serious, perhaps very serious, it was prudent for the police to detain the

Appellant until the position was clear... The Board accepts those submissions.”(emphasis

mine).

43. The burden of proof in the tort of false imprisonment is placed on the Defendant to justify the

arrest and detention and prove that such was lawful. In Gomez v The Attorney General of

Trinidad and Tobago16

the Court of Appeal stated as follows:

“But when the arrest and continued detention is challenged in Court and the arrest and

detention is proved the respondents must place before the Court the evidence that they

14

Carrera v The Attorney General of Trinidad and Tobago – HCA No. CV 2010-00694 at para 23. 15

(2012) UKPC 16 at paras 16 and 19. 16

CA Civ No. 71 of 1993 cited in Richardson (supra) per Dean-Armorer.

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have justifying the arrest and detention. That is the onus that is placed on them at the

stage and the evidence must disclose the facts on which they relied to suspect that the

appellant was guilty of the offence they were investigating.”

The Evidence

The Defendant’s Evidence

The Arrest

44. In the Defence, it is alleged that PC Balkaran and the other officers involved in the

investigations had reasonable and probable cause to arrest the Claimants. This was based on

the fact that there had been a spate of robberies on the compound and whilst surveillance was

being conducted the Sentra was observed manoeuvring suspiciously. Further, E999

information revealed discrepancies in the registration number of the Sentra in relation to its

make, model and ownership.17

45. Having regard to the authorities as earlier cited, the evidence of PC Balkaran, as the arresting

officer, is of critical importance in determining whether or not he had reasonable and

probable cause to arrest this issue.

PC Balkaran

46. In his witness statement, PC Balkaran stated that on 11th

March, 2010 at approximately 6:00

p.m. he was in charge of a party of officers conducting surveillance at the Price Plaza in

relation to reports of larceny of motor vehicles on the compound. He stated that they had

received information that suspected thieves were patrolling the compound. He also stated that

around 8:00 p.m., while in the company of PC Charlerie in the Tucson, they received

information which led them to intercept the Sentra which was occupied by the Second and

Third Claimant and being driven by the Second Claimant. At paragraph 5 of his Witness

Statement, PC Balkaran stated:

“I observed the vehicle driving at a very slow pace through the compound and stopping

in the vicinity of unoccupied parked vehicles. I then received further information from

E999 Command Center that HAZ 4588 was registered as a green B14 motor vehicle

under the name of Nigel Lewis of Martinez Street Arima.”

17

Paras 12, 14 and 15 of the Defence filed on 1st June, 2012.

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47. PC Balkaran indicated that he introduced himself and PC Charlerie as police officers to the

Claimants and the First Claimant introduced himself as the owner of the Sentra. In paragraph

7 of his Witness Statement, PC Balkaran stated that:

“I informed all three men of the information in relation to the vehicle and cautioned

them…the Claimants were not handcuffed. The Claimants were searched and I informed

them of suspected warrants in their names and of their legal rights and privileges. They

were arrested…”

48. Under cross-examination, PC Balkaran stated as follows in relation to the arrest of the

Claimants:

“Around 8 p.m. I received information. As a result I intercepted HAZ 4588… The

information that they would have passed to me was that this motor vehicle was observed

to be slowing down and stopping in the vicinity of parked unoccupied vehicles on

compound. It would have been Constable Aroon and Seepersad who gave that

information. As a result of receiving that information and other reason, I intercepted

vehicle. I made contact with E999 command center and passed on info relative to HAZ

4588 and they in turn passed information back to me that this vehicle was recorded on

their database as a Nissan B14 motor vehicle registered to Nigel Lewis of Martinez

Street, Arima. I observed that the vehicle was a white coloured B12 vehicle. The

information from Aroon and Seepersad was one of the reasons. I also observed the

vehicle. I did not observe the vehicle throughout the entire compound. I observed it in

vicinity of Price Smart building…. On this exercise, there had been reports of larceny of

vehicles on Price Plaza compound… When Ricardo arrived, he informed me that he was

owner of vehicle… As a result of what he told me, I informed him of information I had

received… I asked him for the certified copy. I did not ask him for his Driver's permit. It

is not in my Witness Statement that I asked him for certified copy… I intercepted vehicle

because of information I had received as I said earlier… I then cautioned them of their

rights and then I arrested them based on information I had in my possession. This was

info I received from Aroon and Seepersad, my own observations and information from

command center in relation to the number plate. I arrested them based on 3 pieces of

information. I agree that I did not mention anything about suspected warrants in my oral

evidence. My reasons for arresting claimants were information in relation to registration

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number, information passed by Aroon and Seepersasd and my own observations in

relation to vehicle. I would like to add that I had my own suspicions in relation to

warrants that may have existed in relation to claimants… I did not receive any

information from Command Center about warrants…Claimants were arrested based on

my suspicions”

PC Charlerie

49. In his Witness Statement, PC Charlerie stated that on 11th

March, 2010, he was part of the

party of Officers conducting surveillance at Price Plaza in relation to reported motor vehicle

larceny on the compound. He stated that the Sentra was intercepted by himself and PC

Balkaran subsequent to information they received. He indicated that the Sentra was observed

driving at a very slow pace through the compound and stopping in the vicinity of unoccupied

parked vehicles. He also stated that they had received information from E999 that the license

plate on the Sentra was registered to a green B14 under the name Nigel Lewis.

50. PC Charlerie stated that PC Balkaran informed all the Claimants of the information in

relation to the Sentra and cautioned them. He stated that the First Claimant alleged that he

owned the Sentra and produced his Driver’s Permit. He indicated that the Claimants were

searched and told of their legal rights and privileges and subsequently arrested.

51. Under cross-examination, PC Charlerie stated as follows:

“As a result of information received, we intercepted vehicle HAZ 4588. I received

information through wireless communication that vehicle was seen in Pricesmart area,

slowing down and looking into vehicles. This was not from Command Center. I can't

recall who gave me that information. As a result of that information, I intercepted that

vehicle…Claimants were arrested after they were searched and the vehicle was

searched…

The Detention

52. In relation to the detention of the Claimants at the Station after their arrest, PC Balkaran

stated as follows:

“8. When they arrived at the Chaguanas Police Station the Claimants were taken to the

Task Force Office where they were allowed to sit on chairs. I did not accuse the

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Claimants of being drug transporters, gunmen or car thieves and I did not overhear

anyone use expletives towards the Claimants.

9. The Claimants were seated for about 20 minutes in the Task Force office. I also gave

instructions for various calls to be made by Police Constable Charlerie to ascertain if

there were warrants for the Claimants in any other division… Thereafter they were

separated and interviewed in relation to Larceny of HAZ 4588. I took the Third named

Claimant to the Robbery Squad Office and interviewed him for about ten to fifteen

minutes…

10. After the interview I took the Third named Claimant back to the Task Force Office

where the First and Second named Claimants were seated…

13. After the interviews the three Claimants were taken to the Charge room area of the

Chaguanas Police Station where they were placed in cells for safe keeping…

14. We were informed by officers from the Tunapuna Police Station by telephone call that

they would come to pick the Claimants up. I did not have any further communication with

any of the Claimants and I was later informed that they were released…”

53. Under cross-examination, PC Balkaran stated as follows:

“There was a need to interview them and that is why they were not taken to charge room.

There was no place in charge room to interview them. I can't recall what time they

arrived at Police Station. It may have been approximately 8.30 p.m. That information

would be recorded in the station diary. It should have been recorded in station diary as

soon as we arrived as far as practical... They were made to wait for about 20 minutes to

interview them...I was arresting officer. I was also investigating officer in respect of the

car… I came off duty but I can't recall what time that was. I did not return to Station until

13th

March, 2010. While they were in station, I cannot recall what I would have done by

way of investigation. I agree there is nothing in my Witness Statement about what

investigation I did while they were at Chaguanas Police Station. Based on information

from Command Center the vehicle was green B14 in name of Nigel Lewis. I did not

contact Nigel Lewis while they were at station. I agree there is nothing in Witness

Statement about investigations done by me as investigating officer while they were in

station. When I resumed duty on 13th

March, 2010 I had no dealings with them. They

remained in cell and I had no dealings with them…”

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54. In relation to the detention of the Claimants after their arrest, PC Charlerie stated in his

witness statement that the Claimants were taken to the Task Force office and he made

telephone calls to ascertain whether they were wanted in any other station districts. He stated

that he ‘was moving in and out of the Task Force office making calls and relaying

information to Corporal Balkaran and other officers.” He stated that he spoke with Police

Constable Peterson of the Tunapuna Police Station in relation to the Claimants and submitted

copies of the telephone message book extracts where records of his calls were detailed. At

paragraphs 12 to 14 of his Witness Statement he stated as follows:

“12. I informed Police Constable Peterson that we had the three Claimants in custody

and I asked him if they were known to him and the Tunapuna Police. He answered in the

affirmative and informed me that they were wanted for some robbery and shooting

offences in the district.

13. I was also informed that arrangements would be made to pick up the Claimants from

the Chaguanas Police Station to transport them to the Tunapuna Police Station. I came

off duty on 12th

March, 2010.

14. On 13th

March, 2010 I returned for duty and I realized that the Claimants were still at

the Chaguanas Police Station. I called Police Constable Peterson and made further

enquiries as to when the Claimants would be collected. Sometime thereafter I received a

call on my cellular phone from Police Constable Peterson that the Claimants would be

collected. I cannot recall the exact time of these calls. This was my last time that I had

any involvement with this matter.”

55. Under cross-examination, PC Charlerie stated as follows:

I went to make phone calls- any warrants etc. I contacted Tunapuna Police, San

Fernando Police and South control and the repeat offenders programme. I did not make

an entry in the telephone book. An entry was made. Proper practice must always be

followed. At Tunapuna Station, I spoke to Corporal Peterson. He told me they were

wanted for robbery and shooting in Tunapuna District. I can't say if they were gunmen.

He said they would send officers to collect claimants. That information would have been

recorded in telephone message book. It would have been recorded that officers from

Tunapuna would come to collect Claimants and that they were wanted. I can't recall

exact wording. It should have been recorded because that is proper police practice and it

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must be followed. I referred to extracts from phone message book. That does not appear

in phone message book. It is not necessary that it must be recorded in book. There is

nothing there that Tunapuna officers were coming to collect them. I am aware of

Standing Orders but I am not familiar with it at this time. I have seen the Standing

Orders, SO17. I came off duty on 12th

March, 2010 but I can't recall what time. I came

off duty before lunch. I returned on 13th

March, 2010. I can't recall what time. It was in

morning time. Probably 8:00 a.m. On 13th

March, 2010, I had conversation with

Corporal Peterson. I can't recall how. I got call on cell phone. I can't recall how I made

call. If I made call from station, it would have been in message book… Anything that

happens has to be recorded. I understand (c)(i) to mean that any phone calls to station

must be recorded. (g) means that entries must be recorded when man comes in and when

he leaves.”

Analysis & Findings

The Arrest

56. In consideration of the evidence adduced and in applying the relevant legal principles, I find

that the Defendant has proved on a balance of probabilities that PC Balkaran had reasonable

and probable cause to arrest the Claimants.

57. The Second and Third Claimants stated that when the First Claimant drove into the

Superpharm car park, he exited the Sentra and went into Superpharm. They remained seated

in the Sentra waiting for him to return when two men exited a Tucson and approached them

shouting “Police, Police”. By way of explanation for the Second Claimant being in the

driver’s seat at the time that the police approached them, the Second Claimant stated. “…I

entered the driver’s seat as we were listening to music…”, while the Third Claimant stated

“…. Randy went into the driver’s seat as he wanted to play some music”.

58. On the other hand, PC Balkaran stated that while he was on patrol at the Price Plaza

compound he observed the Sentra being driven by the Second Claimant at a slow rate of

speed and stopping in the vicinity of unoccupied parked vehicles before he intercepted the

vehicle. PC Balkaran also stated that he received information from E999 to the effect that

HAZ 4588 was registered as a green B14 motor vehicle in the name of Nigel Lewis of

Arima. PC Balkaran also said that he received information from PC Aroon and PC Seepersad

that the Sentra had been observed slowing down and stopping in the vicinity of parked,

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unoccupied vehicles on the compound. However, PC Aroon and PC Seepersad did not give

evidence of passing such information to PC Balkaran.

59. In my opinion, the evidence of PC Balkaran with regard to the circumstances of the

interception of the Sentra is more plausible than the evidence of the Second and Third

Claimants that they were seated in the Sentra in a parked position when the Police

approached them. I believe that the Second Claimant was in the driver’s seat because he was

in fact driving the Sentra at the time that he was stopped by PC Balkaran and not that he

moved from the back seat to the driver’s seat because he was listening to music.

60. With respect to the First Claimant, he gave evidence that when he left Superpharm, he could

not locate the Second and Third Claimants and the Sentra. He then called the Second

Claimant who told him that they were in a dark corner of the car park in the vicinity of

Subway. He walked in that direction and found the Sentra. There he saw two police officers,

one of whom asked him who was the owner of the vehicle. He replied that it was his. He was

then requested to produce his policy of insurance, a certified copy of ownership and engine

receipts for the Sentra. He complied and provided these documents to the police officer. He

was then informed by the officers that they had done a check on the Sentra and the number

plate matched a stolen Nissan B-14 motor vehicle. The First Claimant denied this and

insisted that he was the lawful owner of the Sentra and that he had bought it from Debra

George, as stated on the certificate of ownership that he produced to the police officers. The

police officers ignored him and repeated that HAZ 4588 was a B-14 motor vehicle. He was

then arrested.

61. PC Balkaran agreed that the First Claimant informed him that he was the owner of the Sentra

but stated that he never offered to provide his certified copy. He said he informed the

Claimants of the information in his possession in relation to the Sentra, he cautioned them

and they remained silent. The Claimants were searched and he informed them of suspected

warrants in their names and their legal rights and privileges. He then arrested the Claimants

and took them to the Station. However, under cross-examination, PC Balkaran gave evidence

that he asked the First Claimant for his certified copy of ownership and his certificate of

insurance although he did not say so in his witness statement. In addition, he admitted that he

did not receive any information from the Command Center about outstanding warrants in the

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names of the Claimants but stated that he suspected that the Claimants had warrants against

them.

62. The inconsistencies between the evidence contained in the witness statement of PC Balkaran

and his evidence under cross-examination undermines his credibility as to the details of his

communication with the First Claimant at the material time. However, what is clear from his

evidence is that he made observations about the suspicious movement of the Sentra driven by

the Second Claimant and he had information from E999 about HAZ 4588 being a green B-14

registered in the name of Nigel Lewis. Although in the Reply served by the Claimants, they

denied that the police officers ever informed the Claimants of the information in their

possession, they admitted in their evidence at the trial that PC Balkaran informed the

Claimants that the number plate of the Sentra matched that of a stolen B-14 vehicle and that

he suspected that the Sentra was a stolen vehicle. Further, PC Balkaran stated that he was in

charge of a party of police officers conducting surveillance duties at the Price Plaza

compound as a consequence of reports of larceny of motor vehicles and larceny on that

compound.

63. Based on my evaluation of the evidence, I am satisfied that, based on his own observation

and the information supplied by E999, PC Balkaran genuinely suspected the Claimants of

driving a stolen vehicle. Further, I am satisfied that a reasonable man having the knowledge

of the facts that PC Balkaran knew at the material time would have believed that the

Claimants were guilty of larceny of the Sentra. Accordingly, I find that PC Balkaran had

reasonable and probable cause for his suspicion.

64. In the circumstances, I am satisfied that the Defendant has justified the arrest of the

Claimants at the Price Plaza compound.

The Detention

65. In respect of the detention of the Claimants after their arrest, I am not satisfied that the

Defendant has justified their continued detention until 14th

March 2010 at 9.30 a.m.

66. PC Charlerie gave evidence that at approximately 10.00 p.m. on 11th

March 2010 he

contacted PC Peterson at the Tunapuna Police Station who informed him that the Claimants

were wanted for robbery and shooting offences in the district. He was informed that

arrangements would be made to pick them up from the Station and he proceeded off duty on

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the 12th

March 2010 and returned on the 13th

March 2010, without leaving any definite

arrangement in place for their collection within a reasonable time.

67. PC Balkaran, as the investigating officer and the officer responsible for their arrest and

detention, stated that he went off duty on 12th

March 2010 and returned to the Station on 13th

March 2010 at 8.30 p.m. Although he could not recall the exact time that he went off duty on

12th

March 2010, he stated under cross-examination that he was rostered to go off duty on

12th

March 2010 at 8.00 a.m. He produced no evidence from the station diary or otherwise to

show that he went off duty either earlier or later than that time and, therefore, I find that PC

Balkaran went off duty at 8.00 a.m. on 12th

March 2010.

68. Under cross-examination, PC Balkaran said that he could not recall what he did by way of

further investigation of the offence for which he had arrested the Claimants. He admitted that

he did not contact Nigel Lewis whose vehicle he suspected to be stolen, and he did not order

a certificate of ownership for the vehicle. He only interviewed the Third Claimant for 10-15

minutes but he refused to give a statement. Further, he made no recordings of his interview

with the Third Claimant in the station diary or his pocket diary or anywhere else. Although

he had given instructions for the First and Second Claimants to be interviewed by other

officers, he could not recall the names of the officers who conducted the interviews. He also

said that he spoke to the other officers who interviewed the First and Second Claimants but

there was no mention of any such conversation in his Witness Statement.

69. It is apparent from this evidence that having taken the Claimants into custody, PC Balkaran

did not conduct any further investigation, prior to their release on 14th

March, 2010, to dispel

or confirm his reasonable suspicion that the Sentra was a stolen vehicle and that the

Claimants or any of them were guilty of the offence of larceny. Having arrested the

Claimants at approximately 8.30 p.m. on the 11th

March 2010, it would have been legitimate

for him, in order to advance the public interest in the detection of crime, to detain them for a

reasonable time to conduct further enquiries into the suspected offence. However, based on

the fact that PC Peterson of the Tunapuna Police Station had stated that they were wanted in

that district for robbery and shooting offences and had promised to come to collect the

Claimants and take them into his custody, it is apparent that PC Balkaran neither pursued any

further investigation nor gave instructions to any other officer to do so prior to going off duty

on the 12th

March 2010 or up to the time of their release on the 14th

March 2010. In the

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absence of any attempt by any of the police officers involved in the case to give any account

of what action they took to conduct further investigations, I am of the opinion that such

inactivity turned what was initially a lawful arrest into an unlawful detention.

70. Accordingly, I find that the Defendant has failed to justify the detention of the Claimants

beyond 8.00 a.m. on 12th

March 2010 when PC Balkaran went off duty and their detention

between 8.00 a.m. on 12th

March 2010 and 9.30 a.m. on 14th

March 2010, a period of 49 ½

hours, was unlawful and in violation of their constitutional rights for which they are entitled

to damages.

B: WERE THE CLAIMANTS WRONGFULLY AND ILLEGALLY ASSAULTED AND

BATTERED BY POLICE OFFICERS AT THE STATION?

The Law

71. In relation to the tort of assault and battery, Halsbury’s Laws of England,18

states as

follows:

“A person commits an assault if he intentionally or recklessly causes another person to

apprehend the application to his body of immediate, unlawful force. An assault can be

committed by words alone if they cause the necessary apprehension. The requirement of

the apprehension of immediate force is satisfied if the prosecution proves a fear of force

at some time not excluding the immediate future.

A person commits a battery if he intentionally or recklessly applies unlawful force to the

body of another person. The slightest degree of force, even mere touching, suffices. It is

not necessary that the victim should feel the force through his clothes: a touching of a

person's clothes is the equivalent of touching him…

Although an assault is a separate, independent crime and should be treated as such, for

practical purposes the term 'assault' is generally synonymous with 'battery' and is used to

mean the actual use of unlawful force to another person with the requisite mens rea…”

72. In Skinner v The Attorney General of Trinidad and Tobago,19

Pemberton J. stated that

both assault and battery are actionable per se, which means that once its occurrence is

established, the Claimant is entitled to compensation even if no actual damage was suffered.

18

Volume 25 (2010); Volume 26 (2010) at para. 157.

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The Evidence

The Claimants’ Evidence

73. The Claimants allege that they were brutally assaulted, battered and tortured on multiple

occasions by the servants and/or agents of the Defendant at the time of their arrest and

detention.20

First Claimant – Ricardo Youk-See

74. In his witness statement, the First Claimant stated that upon arrival to the Station on 11th

March, 2010, they were taken to the CID Section where their personal items were seized and

their names searched on a computer at the Station. At paragraph 12 of his Witness Statement

he stated as follows:

“… the police officers suddenly began beating us mercilessly. Two police officers whose

names I do not know, began to slap me in my face, kick me in my belly and cuffed me

about my body. I tried my best to brakes some of the blows however the police continued

to beat me. Every time I was cuffed it felt as if all the air inside my lungs was knocked out

of me…I could not bear the blows to the wound on my hand and the pain was

intolerable… The police officers continued beating me about my head, back, hands, chest

and face over a period of about thirty (30) minutes.”

75. He continued:

“13. … I was then dragged by the police officer to another room and they ordered me to

sit in a barrel drum, which had water in it… I refused and responded, “Boss I cah sit

down there because I just remove stitches from the wound in meh left hand this

morning”. The police officers said to me in response, “fuck that you go get thirty-six

more when we done with you!

15. The two police officers then bundled me to the ground and began shocking me with

the Taser. I immediately felt shocking, cramping pains in my body. My body felt lifeless,

as I was not able to move my body… I curled up in pain when the bursts of electricity

went into my body. I felt ripples running through my body and it felt as if my muscles in

my legs and hands were tearing apart…

19

HCA No. CV 2006-03721 at para 27. 20

Statement of Case filed on November 16, 2011 at para. 23(c).

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16. The police officers kept on pressing the red button and touching me with the taser

shocker all over my body from my belly going up to my head. The police officers kept on

shocking me until the Taser ran out of charge… The tall police officer then left the room

and brought back another shocking device,…

17. The tall police officer then ordered me to sit down in the grey metal barrel with water

and whilst I sat down, another brown skinned police officer approached me and poured

two mugs of water all over me… The tall police officer then walked towards me with the

taser and began to shock me all over my body… I bawled and begged the officers to

stop… I screamed out, “Ah going an dead call ah ambulance!” I felt as if my heart would

stop beating due to the amount of shock I endured…

19. Another police officer then approached me and took out a black gun and a bullet and

placed the bullet by my head. He then shouted, “Hear how a fucking bullet does sound

like!” I sat in fear… The officer then placed the magazine back into the gun and shouted,

“tell yuh brother your last wishes cuz you going an dead!” I stood in fear… The officer

then pointed the gun and pulled the trigger twice…

21. The police officers then continued to beat us again and I was repeatedly slapped,

kicked, cuffed and was shocked about six (6) times again with the taser gun. I was beaten

to a pulp and I had bruises and cuts all over my body…”

76. The First Claimant stated that upon his release from the Station on 14th

March, 2010, he

immediately visited the Eric Williams Medical Sciences Complex (“the Hospital”) to seek

treatment for the injuries he sustained while in police custody where he was examined and

treated by Dr. Ayhew who prepared a medical report. The First Claimant further stated that

he sought additional treatment on 16th

March, 2010 from Dr. Emmanuel Hosein who also

prepared a medical report. Both medical reports were annexed to his Witness Statement and

describe the injuries he sustained.

77. The First Claimant also stated that on 14th

March, 2010 he was interviewed by TV6 Reporter,

Ms. Marcia Hope and her report of the incident was aired on the 7.00 p.m. news on the said

day. He also stated that on 15th

March, 2010, he was interviewed by Crime Watch Talk Show

host, Mr. Ian Alleyne about the incident and the injuries suffered. At paragraph 43 of his

Witness Statement he stated:

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“The said news reports highlighted the injuries we suffered and a brief statement about

our incident. On Ian Alleyne’s programme, Mr. Alleyne, Kairon, Randy and I visited the

Chaguanas Police Station and we pointed out the areas of the station where the torture

occurred...”

78. Under cross-examination, the First Claimant stated as follows in relation to the alleged

assault and battery:

“I was taken to Task Force section and CID section…We were carried to side room.

There were four (4) officers there... There were about ten (10) officers involved in

beating… I was cooperating all the time. They just start beating us. They said they would

show us how Mammy is work and they shocked us. Lashes were hard. Slap and kick and

all kind of thing. I tried to brakes from lash. I was covering my face, and back and side. I

did not have real black and blue. I had real pain. I did not get bruises on face. I got burn

marks. I got bruises on hand and belly. I showed doctor all of that. I showed him burn

marks on my skin but not bruises on belly… I was tazered. I was unable to move. I curled

up. I gave up in a kind of way.

… They told us not to say that we were beaten by police because we have the Chaguanas

Health Centre locked. We were bawling out. None of officers came out. They were

beating us in another room. We were bawling in a whisper.

… Beating stopped at 1.45 a.m. It was not 5 hours of licks. There was beating and

stopping and changing us around. I can't add it up. More than half hour per person. It

was about hour…. We got licks on back, bottom when we were on ground and on hand.

They were hitting us medium… The officer in charge room asked if we had any injuries

and we said "No." We said that because the officers told us if we say yes we have injuries

they would deal with us.”

Second Claimant – Randy Youk-See

79. In his witness statement, the Second Claimant stated as follows:21

“14. The police officers of African and Indian descent who brought us in suddenly began

cuffing and kicking us about our bodies… I was dealt several hard blows to my hands

back and shoulders. I tried in vain to block the blows with my hands. The said police

21

Witness Statement of the Second Defendant filed January 18, 2013 at paras 14-16, 18-21, 23-28.

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officers hit me about fifteen (15) times about my body over a period of thirty (30)

minutes…

15. …the tall police officer that drove Ricardo’s car entered the room and ordered that

we stand up. I observed that he had in his hand a black object that was rectangular in

shape and was about four (4) inches long. He walked up to me and said, “Feel this”….As

he touched me, I felt a massive shock going through my body…

16. …The officers kept shocking us to the point where the battery had no more current...

18. …The tall police officer who had the taser then returned to the room with another

one… The officer then shouted, “allyuh ready to feel daddy now cuz mammy ain’t doing

nothing!”…

19. … The tall police officer that was holding the shocker then placed me on a chair with

my hands handcuffed behind my back. He then kept shocking me on my back with

“daddy”. While he was shocking me, the tall officer stood behind me and stepped on my

hands as he continued shocking me. The pain of the shock was unbearable… The shock

was so powerful that I immediately fell flat onto the ground.

20. One of the Indian police officers then took the taser, raised my jersey and began

shocking me repeatedly on my bare skin… the heat from the pins were so hot that it burnt

my skin. Every time the taser touched my bare skin, I heard a sizzling sound and my skin

smelt like it was roasting… I bawled and cried in pain uncontrollably…This torture was

the worst thing I ever endured.

21. … I received shocks to my back, arms, head, chest and legs. As a result of the amount

of shocks I got on my bare skin, I received burns and bruises all over my body…

23. … I was taken back to Pricesmart car park sometime around 10:00 p.m….the officer

with the bulletproof vest began slapping me about my back, hands, shoulder and face…

Afterwards, the police officer with the bulletproof vest took me back to the vehicle and

pulled out his gun and tapped me on the back of the head with it…

24. …The officer with the bulletproof vest then threatened me and said that he will kill me

and to turn around. When I turned around, the other officer had a handgun in his hand

and he placed the gun to my head and clicked the trigger twice. I immediately began to

cry as I thought that they were going to kill me….

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25. … I was taken back to the same area of the C.I.D. section …The same officers who

were present before started to beat me again. I was again slapped, cuffed and kicked

about my body several times over a period of about twenty (20) minutes…I had bruises

all over my body…

26. …The said officer then took a golf stick and began hitting us on our backs and

buttocks with the stick. I was struck about three or four times. The officer struck me so

hard that my skin got welt marks on it.

27. …the officer with the bulletproof vest picked me up and proceeded to drop me in a

grey metal barrel which had water in it. My hands were still handcuffed and when I fell

into the barrel my elbow got cut as it rubbed against the edges of the metal barrel.

28. The officer with pimples on his face then approached me with a taser in his hand and

started to shock me about my body… As I was soaked in water, the shocks felt even worse

than before…”

80. The Second Claimant stated that upon his release from the Station on 14th

March, 2010, his

mother took him to the Hospital to get treatment for the shocking and beating he received

while in custody. At paragraphs 39 and 40 of his Witness Statement the Second Claimant

stated that he was examined and treated by Dr. Ayhew as well as Dr. Emmanuel Hosein, both

of whom prepared medical reports which outlined the injuries he sustained. These reports

were annexed to his Witness Statement. Further, at paragraph 41 of his witness statement, he

said that on 14th

March 2010, his mother took photographs of his bruises to his neck, ankle

and back which showed the extent of the cuts and bruises that he sustained. Copies of the

photographs were annexed to his witness statement as exhibit “R.A.Y.S. 3”. However, since

these annexures were unclear photocopies of photographs, the Court was informed that the

photographs annexed to the Statement of Case as “Annex 7” were the colour photographs

which had been photocopied and annexed to the Witness Statement.

81. The Second Claimant also stated that shortly after his release on 14th

March, 2010 he was

interviewed by TV6 Reporter, Ms. Marcia Hope and her report of the incident was aired on

the 7.00 p.m. News on the said day. He also stated that on 15th

March, 2010, he was

interviewed by Crime Watch Talk Show host, Mr. Ian Alleyne about the incident and the

injuries suffered. In his Witness Statement he stated that he visited the Station along with Mr.

Alleyne and the other Claimants to point out the areas where the torture occurred.

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82. Under cross-examination, the Second Claimant stated as follows in relation to the alleged

assault and battery he sustained whilst in custody:

“… When I got cuff in face, I blocked the next one with my hand… They were not beating

me continuously. After they beat me, they would go to brother and then Kairon and then

come back to me. When I was being tazered, they put brother first and then throw me on

top of him. It was a steel barrel. It was like a steelpan barrel. My skin felt like it was

tearing but it did not tear. It was sinking in my hand. I told doctor that. I had on a jersey.

They raised up my jersey at bottom. They ripped up the top. The Tazer had metal pieces…

In medical from Dr. Ahyew he said tenderness to chest and back…. I don’t see any

reference to upper back. I had pain in upper back …. Same device used on back and

chest. Marks were not different on back and chest. They shocked back the most… They

put tazer on back, chest, behind my neck, back and a little thing on my foot. They were

using a small one named Mammy and a big one named Daddy. I saw big one with two

metal pieces…

Officers took me back to Price Plaza. Places started to close and place were dead when

they were clicking gun behind my head. They were beating me medium-- for me to feel. I

did not get any black and blue. No broken bones or welts. In police complaints I mention

everything about being hit with golf club….. There is no mention of golf club (in

complaint)”

Third Claimant – Kairon Baptiste

83. In his witness statement, the Third Claimant stated as follows:22

“13. …the police officers of African and Indian descent in the room suddenly grabbed us

and began cuffing, slapping and kicking us about our bodies several times. I was kicked,

slapped and cuffed about my back, shoulders, legs and hands… The beating went on for

about ten (10) to fifteen (15) minutes.

14. …The officer came towards us and pushed the black object towards my chest. I

immediately felt a burst of current running through my body… The officer continued

shocking us to the point that the battery in “Mammy” went dead.

22

Witness Statement of the Third Defendant filed January 18, 2013 at paras 13-16, 18-22.

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15. …The officer then grabbed me and began shocking me several times with “Daddy”

about my chest, neck, head and back…

16. Whilst they were beating and shocking me with the taser, there were about six to eight

officers present… The officers kept hitting and slapping me and shocking me with the

taser for about thirty (30) minutes…

18. One of the officers then said to me, “Make yuh last wish cuz we takin you to Carlsen

Field to be killed!” I began to tremble in fear… Soon after, one of the men in the Task

Force uniform began cuffing me three (3) times about my head, shoulder and neck…One

of the officers in the vehicle then said, “Yuh lucky your parents know you with we cuz I

was going to kill you and throw yuh body in the Caroni River!”… I was so scared that

they would kill me…

19. When we arrived back at the police station, I was then taken back to the CID

department… The same officers who were present started to beat me again. I was again

slapped, cuffed and kicked about my body several times…

20. …we were ordered to lie flat on our belly on the ground next to one another. One of

the police officers present then took a golf stick and began hitting us about our bodies.

The lash was so hard that I got welt marks on my body. The officers took turns hitting me

on my back, legs and bottom… I was once struck on my genitals with the golf club…

21. …one of the officers grabbed me by my neck and dropped me inside a grey barrel that

was half cut… My hands were handcuffed and became bruised when they threw me into

the barrel. The officers then took “daddy” and began shocking me about the body…

22. … I could not take the torture and beating anymore…

84. The Third Claimant stated that upon his release from the Station on 14th

March, 2010, he

visited the Hospital to get treatment for the injuries he sustained while in custody. The Third

Claimant stated that he was examined and treated by Dr. Ayhew on 14th

March, 2010 and by

Dr. Emmanuel Hosein on 16th

March, 2010, both of whom prepared medical reports which

described the injuries he sustained. These reports were annexed to his Witness Statement.

85. The Third Claimant also stated that shortly after his release on 14th

March, 2010 he was

interviewed by TV6 Reporter, Ms. Marcia Hope and her report of the incident was aired on

the 7.00 p.m. news on the said day. He also stated that on 15th

March, 2010, he was

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interviewed by Crime Watch Talk Show host, Mr. Ian Alleyne about the incident and the

injuries suffered. In his Witness Statement he stated that he visited the Station along with Mr.

Alleyne and the other Claimants to point out the areas where the torture occurred.

86. Under cross-examination the Third Claimant stated as follows in relation to the alleged

assault and battery:

“I was trying to block licks when officers were beating me. I was not blocking with my

hands. I was handcuffed. I could not block blows at all. According to medical of Dr.

Ahyew, he did not see a scratch on my body. I did not like that medical. I went to get

different medical from Dr. Hosein… More than 6 officers were involved in beating. Those

involved in beating included the 6. There were about 4 additional officers involved in

beating. One officer, a female officer, was not involved...

When I was being tazered, Ricardo and Randy were being beaten too. At the same time

everybody was getting beaten. It was in a line. It was non-stop licks. The officers did not

have to interchange. Everybody was handcuffed so we could not put up our hands to

block. I said I was beaten for about 10-15 minutes. I added another 20 minutes of

beating. I had bruises. They got black and blue. I got black and blues on back and on my

right forearm. Handcuffs were very tight.

On 11th

March, 2010, I was taken back to Price Plaza… When we went back there and

officers were clicking guns by our head, people were not seeing. Where we was nobody

would have seen us… I did not take pictures of black and blues. I showed reporter from

TV 6 the black and blues. I am not too sure if they showed that on TV.

A golf club is a hard metal thing. They were hitting me with hard metal thing at bottom.

They were hitting me very hard under my foot, my private parts and on my back. This was

very outstanding part of incident for me. In my complaint dated 15th

March, 2010, I did

not mention that…

All the injuries were on right side of my body. I was getting beaten in places to feel. I was

beaten all over the body. I agree there is nothing in medical about electric burn... I say

there is information in medical to support that I was assaulted and battered.”

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Medical Reports from the Medical Records Department, EWMSC

87. The Agreed Bundle of documents contained medical reports issued by the Medical Records

Department of the Eric Williams Medical Sciences Complex in respect of each Claimant.

These reports were all signed by Dr. Ahyew and described the injuries suffered by the

Claimants as well as expressed an opinion on how the injuries were probably inflicted.

88. The Report in respect of the First Claimant is dated 30th

March 2010 and stated that, upon

examination on 14th

March 2010, Dr. Ahyew found him to be suffering from “soft tissue

injury to anterior chest wall—mainly left side” and “soft tissue injury to left shoulder and

forearm.” Further, it stated that the injuries were probably inflicted with “hands and feet of

assailant.”

89. The report in respect of the Second Claimant is also dated 30th

March 2010 and stated that,

upon examination on 14th

March 2010, Dr. Ahyew found him to be suffering from “soft

tissue to anterior chest wall and lower back region” and “multiple healing scars over the

superior region of his back.” Further, it stated that the injuries were probably inflicted with

“hands and feet of assailant. Also, use of an electric shocking device.”

90. The report in respect of the Third Claimant is dated 15th

April 2010 and stated that, upon

examination on 14th

March 2010, Dr. Ahyew found him to be suffering from “soft tissue

injury to body mainly head, chest and abdomen.” Further, it stated that the injuries were

probably inflicted with “hands and feet of assailant.”

Medical Reports of Dr. Vernel Ahyew

91. The Agreed Bundle of documents also contained two medical reports dated April 7, 2010

from Dr. Ahyew which confirmed that the First and Second Claimants were examined by

him on 14th

March 2010, the date of their release from custody.

92. In his medical report for the First Claimant, Dr. Ahyew stated:

“The above mentioned patient was seen at Adult Priority Facility Department at Eric

Williams Medical Sciences Complex on 14/03/10. He presented one day after being

released from a four day stay in a prison cell. Patient claims during this time he was

beaten about the body, kicked in his chest and shocked several times with an electric

device. He presented with generalized body pain mainly of chest, left shoulder and

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forearm. The patient had removal of sutures to a stab wound of left forearm the day prior

to being incarcerated.

On examination he was found to have left sided anterior chest wall tenderness. His left

shoulder was mildly swollen over the deltoid region with slightly reduced range of

motion due to the pain, but there was no evidence of fracture. The left forearm showed

the healing laceration where the sutures had been removed. This was also tender and

mildly swollen but no signs of infection present. His vital signs were stable and

respiratory, cardiovascular examination normal. The patient was given an injection for

the pain and subsequently discharged on analgesics.”

93. In his medical report for the Second Claimant, Dr. Ahyew stated:

“The above mentioned patient presented to Adult Priority Care Facility Department at

Eric Williams Medical Sciences Complex on 14/03/10. The patient had been incarcerated

for four (4) days prior to presentation and claims he had been beaten over the body,

kicked in his chest and back and also shocked with an electric device. He was

complaining of generalized pains mainly of his chest, back and head.

Upon examination there was tenderness of his anterior chest wall and lower back region.

He was also noted to have multiple scars which has started to heal extending over the

superior region of his back. His vital signs were stable and there was no evidence of any

broken bones. Cardiovascular and respiratory examinations were normal.

He was given an injection for the pain the subsequently discharged on painkillers.”

Dr. Emmanuel Hosein

94. In his evidence-in-chief, Dr. Hosein stated that he examined the Claimants individually on

16th

March, 2010. The Claimants told him of their complaints, and he examined them

physically. He identified and put into evidence three medical reports dated 23rd

August, 2010

in respect of each Claimant.

95. Under cross-examination, Dr. Hosein stated as follows:

“I would be able to detect different types of injuries and how to classify injuries. I was

told they were shocked with taser devices. This was first time anyone complained of being

shocked with taser devices. I had examined persons who complained of being assaulted

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by police officers hundreds of times. I checked my pathology book. I noticed there was

blackened edges that were consistent with burns. Tiny wounds that looked like scratches

with blackened edges, some of them.

I examined them five days after incident. My report did not refer to blackened edges. That

is my fault. I thought it was significant but did not mention it. My report gave description

but I did not say they had burns. If a person was hit by golf club, I may not find swelling

and contusions after five days. It would depend on the extent of force used.

I don't recall having examined people being shocked. That is why I checked books. That

is why it gave blackened appearance. I checked books. Losing consciousness would

depend on amperage. Taser has high voltage but low amperage. When I say tenderness I

mean tender to touch. There is a method for grading. There is no grading in reports. In

original notes, I would have graded most of it…In pathology book, there was no picture

of person who had been tasered. It was word description. I am not acquainted with

tasers.

High voltage can create same effect as high temperature --produces same effect. I have

brought no literature here to support that. I brought my knowledge.

High amperage would cause burning as well. It produces a whole range of effects. I

cannot say how high or low voltage would cause burn. I know nothing about tasers. I am

not aware if they had two matching prongs. I am not able to answer in relation to tasers.

I said persons heal more quickly than others. Generally speaking, different factors would

affect healing. The rate of healing would depend on number of factors. If person was

treated and not treated, the healing would depend on how the injury was caused-- clean

scapel or pen knife would affect healing.”

96. In relation to the medical reports received from the Hospital, Dr. Hosein stated as follows:

“These reports ought not to show less injuries. That would be very surprising.”

97. In relation to the First Claimant’s evidence at paragraphs 12, 15, 16, 17 and 21 of his witness

Statement, Dr. Hosein stated as follows:

“My medical is not consistent with those allegations. He only had scratches on left upper

arm and not all over body…

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Ricardo Youk See had injury to left arm. It was old scar. In relation to other injuries, I

did not make any comparison of oldness or newness. I was told that that injury was old

injury. I can't say when other injuries would have occurred. I can't say if injuries were

old or new. It was not possible to say how long before the injuries occurred. In addition,

young persons heal quickly. I could say it would not have occurred within 48 hours. I

could not say if it occurred on 10th

March, 2010. Possibly it could have been 14th

March,

2010.”

98. In relation to his examination of the Second Claimant, Dr. Hosein stated as follows:

“I said Randy had multiple scratches to chest and abdomen… If someone was beaten by

multiple persons over 4 hours finding haematomas would depend on when you examine.

If person was kicked by police boots, it would depend on force of blows. If beating was

savage beating for 4 hours with metal and hard boots, I would expect to find

haematomas. Bearing in mind the time since the incident, injuries were consistent with

what I was told...

In case of Randy Youk See, I cannot say if injuries occurred on 11th

March, 2010. I can

say it would have been more than 48 hours before. It could not have been on 15th

March,

2010. It could have been 14th

March, 2010. It would not have been less than 48 hours. It

could have been 13th

March, 2010.”

99. When cross-examined on paragraphs 14, 17, 19, 20, 21, 23, 25, 26, 27 and 28 of the Second

Claimant’s Witness Statement, Dr. Hosein stated as follows:

“I would not say that my medical reflects these allegations. I did not find marks from

handcuffs. Everything else is consistent especially because it was five days after. You

might find black and blue marks depending on how much blood leaked into tissue.

In my medical, there were scratches were all over body. I drew diagram showing

scratches to head, neck, back and upper arms. On front, on chest and abdomen there

were multiple scratches. On back of left thigh, there was 3 inch deep scratch and

moderate swelling. Nothing on calf and shin. There were scratches on ankle. Nothing on

buttocks.”

100. In relation to his examination of the Third Claimant, Dr. Hosein stated as follows:

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“… I said he had multiple scratches. A scratch is smaller than puncture in depth. A

scratch would be more superficial than a laceration. I did not make any conclusions. I

did not mention blackened edges. I have not seen scratches in persons who fall down or

playing sport. I have seen persons with scratches who received them from falling down.

No doctor could say when an injury occurred… The body would disperse blood over 2

weeks. Colour changes could give you an idea of time period. Being hit with golf club or

being cuffed in eye may cause haematoma. It would depend on where and how hard. In

terms of electric shock, being in contact with water may increase conductivity…”

Video Evidence

101. By consent of the parties, the Court viewed he video of the TV6 News Report by Marcia

Hope recorded on 14th

March, 2010 (“Video 1”) as well as the Crime Watch Interview by Ian

Alleyne recorded on 15th

March, 2010 (“Video 2”) and made the following observations:

Video 1

102. On Video 1, the Second Claimant displayed the injuries he allegedly sustained and the

video recording revealed what appeared to be significant bruising, scratches and/or scars on

his chest, stomach, back, neck and left elbow. However, the other Claimants did not display

their alleged injuries.

Video 2

103. On Video 2, all three Claimants displayed the injuries they allegedly sustained. In

relation to the First Claimant, I was able to see what appeared to be minor scratches on his

upper left upper left arm only. In relation to the Second Claimant, the video recording

revealed what appeared to be significant scratches and/or bruises and/or scratches and/or

scars on his chest, stomach, arms, and head as well as more severe bruises and/or scars to his

upper back and neck. In relation to the Third Claimant, I was able to see what appeared to be

minor scratches and/or bruises on his chest.

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104. In relation to the Claimants’ allegations of assault and battery, the Defendant, in the

Defence, made no admissions and stated that these allegations are the “crux of a related

criminal matter and put the Claimants to strict proof.”23

PC Balkaran

105. At paragraph 9 of his Witness Statement, PC Balkaran stated as follows in relation to the

assault and battery of the Claimants:

“9. … I did not assault or beat the Claimants but I do not wish to go into this issue since

it is before the criminal court…”

106. Under cross-examination he stated as follows:

“I recall allegations made by Claimants of being cuffed. I made a witness statement as a

result of allegations made against police officers by Claimants. I agree that I have not

put info in witness statement about Claimants being assaulted and battered. I say matter

is before the criminal court. I don't want to say anything about assault because matter is

before the criminal court. I came to assist the Court in this matter. I prefer to say nothing

about the assault because matter is before the criminal court.”

PC Charlerie

107. At paragraph 15 of his Witness Statement, PC Charlerie stated as follows in relation to

the assault and battery of the Claimants:

“15. The assault and battery aspect of this matter is engaging the criminal court and I

prefer not to go into detail about it but I will say that I did not assault and beat the

Claimants...I did not observe any other scratches, scars, scabbing on him or any of the

other Claimants because they were fully clothed.”


“I am aware of allegations made by Claimants - assault, battered, beaten. I don't know

about being kicked. I am not aware they were slapped, cuffed on 11th

March, 2010… I am

aware they are alleging that they were tasered. These are serious allegations. My witness

statement is in answer to those allegations.”

23

Defence filed on June 1, 2012 at paras. 8and 9.

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PC Seepersad

109. At paragraph 9 of his Witness Statement, PC Seepersad stated as follows in relation to the


“9. …I did not assault or beat the Claimants…”


“I am aware of allegations made in this matter. I would have read it. I remembered they

said they were tasered. There is property register at Station. I don't know of any taser at

Station. I did not check property register for golf club. There is possibility that those

items could have been there.”

PC Aroon

111. At paragraph 9 of his Witness Statement, PC Aroon stated as follows in relation to the


“… The Claimants did not report having been injured or threatened in any way by

anyone, … nor did I injure or threaten them in any way…”


“I handed them over to Constable Lutchman. They did not report injuries to Lutchman.

He asked them and they said No. It is proper thing to do. I would have done so if I was

sentry. Constable Lutchman should have recorded their condition before he put them in

the cell. They did not report anything to me, injury or otherwise…”

113. Further, when the Claimants’ case was put to PC Aroon, he stated that during the time he

spent with the Claimants, (which amounted to between 30 minutes to 1 hour), he did not

observe anyone assaulting or battering them. He further stated that the Claimants were in his

presence from the time of their arrest to the time he placed them in the cell and during this

time they were not tasered.

Analysis and Findings

114. In my evaluation of the evidence, I am guided by the decision in Reid v Charles and

Bain24

where the Privy Council emphasized that where the Court is confronted with an acute

24

Privy Council Appeal No. 36 of 1987 at page 6.

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conflict of evidence between opposing parties, although the impression which the evidence

makes upon the judge is of the greatest importance, a wrong impression can be gained if this

is solely relied upon. In the words of Lord Acker:

“... In such a situation, where the wrong impression can be gained by the most

experienced of judges if he relies solely on the demeanour of the witnesses, it is important

for him to check that impression against contemporary documents, where they exist,

against the pleaded case and against the inherent probability or improbability of the

rival contentions, in the light in particular of facts and matters which are common

ground or unchallenged, or disputed only as an afterthought or otherwise in a very

unsatisfactory manner. Unless this approach is adopted, there is a real risk that the

evidence will not be properly evaluated and the trial judge will in the result have failed to

take proper advantage of having seen and heard the witnesses."

115. Bearing this guidance in mind, I am satisfied on a balance of probabilities that the

Claimants were assaulted and battered by several police officers at the Station. In coming to

that conclusion, I have taken into account the following:

a. The evidence of each Claimant was in large measure consistent with each other

and confirmatory of the allegations made in the Statement of Case. Although

there were some inconsistencies with regard to the length of time that they were

beaten by the officers, they were not shaken in cross-examination from their

versions about the beatings, the administering of shocks to their bodies in a barrel

of water with tasers and the threats to kill them;

b. The witnesses for the Defendant were not very helpful in their evidence confining

themselves to bare denials that they had assaulted and beaten the Claimants and

declining to say more on the ground that there was a criminal matter before the

Magistrate’s court. Further, Counsel for the Defendant attempted in her cross-

examination to get the Claimants to admit that they had been engaged in a fight at

Maracas beach and that their injuries had been sustained in that incident.

However, the Defendant failed to make that allegation in the Defence or to call

any evidence to support this line of cross examination and, although the First

Claimant admitted that he was stabbed on his left forearm in that incident, the

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Second and Third Claimants did not admit that they had sustained any injuries in

that fight;

c. The evidence of the Claimants was consistent with the contemporary documents

produced at the trial, namely:

i. the medical reports for the Claimants issued by the Medical Records

Department of Eric Williams Medical Sciences Complex on 30th

March

2010 and 15th

April 2010 (included in the Agreed Bundle of documents);

ii. the Medical Reports of Dr. Ahyew dated 7th

April 2010 (included in the

Agreed Bundle of documents);

iii. the Trinidad and Tobago Police Service Complaint Forms dated 15th

March 2010 signed by the Claimants (included in the Agreed Bundle of

documents);

iv. the medical reports of Dr. Hosein dated 23rd

August 2010 in respect of his

examination of the Claimants on the 16th

March 2010;

v. The statements dated the 18th

March 2010 signed by the Claimants

(included in the Agreed Bundle of documents);

vi. The further statements dated 23rd

April 2010 of the First and Second

Claimants (included in the Agreed Bundle of documents);

vii. The video recorded by TV 6 on the 14th

March 2010 (which revealed

bruises, scars and/or scratches on the Second Claimant’s body which was

consistent with his evidence) and the video recorded by the Crime Watch

program show on the 15th

March 2010 (which revealed bruises, scratches

and/or scars on the bodies of the Claimants which were consistent with

their evidence); and

viii. The photographs produced by the Second Claimant and annexed to the

Statement of Case and his Witness Statement. Although Counsel for the

Defendant sought to persuade this Court to disregard these photographs

on the grounds that they were inadmissible hearsay, she did not take any

evidential objection thereto prior to the tendering of his Witness

Statement into evidence. Further, Rule 30.8 gives the court a discretion to

permit a party to adduce hearsay evidence even though the party has not

served a hearsay notice. In the exercise of my discretion, therefore, I am

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prepared to admit these photographs since they are consistent with the

images of the Second Claimant contained in the two videos which were

admitted by consent of the parties and the Defendant will not suffer any

prejudice if these photographs are admitted into evidence.

d. The Claimants’ evidence about the injuries sustained from the assaults and battery

was supported in large measure by the testimony of Dr. Hosein at the trial.

Although Dr. Hosein stated that his medical was not consistent with the

allegations made by the Claimants in their witness statements as to the extent of

the physical beatings they endured, I am of the opinion that he gave a satisfactory

explanation for this difference based on the length of time that had elapsed

between the date of the injuries and the date of his examination (almost five days)

of the Claimants and the fact that the injuries sustained would have begun to heal

over that period of time;

e. The Claimants’ account of what transpired at the Station is more probable than

the Defendant’s suggestion that the Claimants may have sustained their injuries in

a fight at the beach. The Claimants’ evidence was made more credible by their

efforts to seek medical attention on the day of their release, the interviews

recorded by TV 6 on 14th

March 2010 and Crime Watch program on 15th

March

2010, their complaints to the Trinidad and Tobago Police Service on the first

working day after their release and their efforts to seek further medical attention

from Dr. Hosein on 16th

March 2010. When I contrast this contemporaneous

evidence with the bare denials of assault and battery by the witnesses called by

the Defendant, I consider their version of events to be more plausible and

probable; and

f. The description of the injuries sustained by the Claimants in the several medical

reports and the video evidence of the injuries they sustained confirmed in my

mind that the Claimants were not fabricating these allegations of horrific

treatment while in custody but were speaking the truth.

116. Accordingly, I find that the Claimants have proved on a balance of probabilities that:

a. Shortly after their arrival at the Station, several police officers flung them to the

ground and kicked, slapped and beat them about their heads, backs, hands, chest

and facial areas;

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b. The Claimants were thrown into a barrel of water and electrocuted several times

about their bodies with taser guns;

c. One of the police officers at the Station, placed a bullet to the head of the First

Claimant and also placed the magazine into a gun and threatened to kill him. The

said police officer also pointed the gun at the First Claimant and pulled the trigger

twice which caused him to fear for his life;

d. One of the police officers who accompanied the Second Claimant back to the

Price Plaza compound on or about 10.45 p.m. on 11th

March, 2010, threatened to

kill him and another officer placed a gun to his head and clicked the trigger twice

which caused the Second Claimant to fear for his life; and

e. One of the police officers who accompanied the Third Claimant back to the Price

Plaza compound on or about 10.45 p.m. on 11th

March, 2010, cuffed him in his

head, shoulder and neck and another officer threatened to kill him which caused

the Third Claimant to fear for his life.

117. In the circumstances, the Claimants are entitled to damages for the heinous and vicious

assaults and battery perpetrated upon them by police officers at the Station as outlined above.

C: IS THE DEFENDANT LIABLE TO THE FIRST CLAIMANT FOR

DETINUE/CONVERSION OF THE SENTRA?

D: IS THE DEFENDANT LIABLE TO THE CLAIMANTS FOR THE

DETINUE/CONVERSION OF THEIR PERSONAL ITEMS?

The Law

118. According to Clerk & Lindsell on Torts:25

“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel. The

action was available against a defendant … who withheld the plaintiff’s chattel after the

plaintiff had demanded its return. The principal object of the action was to recover the

value of the chattel so detained…”26

“Conversion is an act of deliberate dealing with a chattel in a manner inconsistent with

another’s right to his possession or his right to the possession on it. To be liable the

25

13th

Edition (1969) No. 3 26

Ibid – para. 1072.

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defendant need not intend to question or deny the plaintiff’s rights; it is enough that his

conduct is inconsistent with those rights.27

”

119. In the Court of Appeal decision of Rattansingh v The Attorney General of Trinidad

and Tobago and Doopan (which was later approved by the Privy Council28

) Warner JA

stated as follows:29

“The claim in detinue

This action lies at the suit of a person who has an immediate right to the possession of the

goods against a person who is in possession of the goods and who on proper demand,

fails or refuses to deliver them up without lawful excuse. (See dictum of Donaldson J. in

Alicia Hosiery v Brown Shipley and Co. Ltd. [1969] 2 All E.R. 504 at 510). I think this

aptly encapsulates the relevant law.

The claim in conversion

To constitute conversion, there must be a positive wrongful dealing with the goods in a

manner inconsistent with the owner’s rights and an intention in so doing to deny the

owner’s rights or to assert a right inconsistent with them. The gist of the action is

inconsistency. There need not be any intention to challenge the true owner’s rights. A

demand and refusal is sufficient evidence of conversion.”

120. In the Privy Council decision of Jaroo v The Attorney General of Trinidad and

Tobago30

the Appellant claimed to have purchased a vehicle which was later suspected of

being stolen. The Appellant voluntarily handed the vehicle over to the Police for examination

and, in excess of fourteen years later, it had not been returned to him. The appeal was

dismissed by the Board which upheld the ruling of the Court of Appeal that the Appellant’s

decision to proceed with the action by way of constitutional motion was an abuse of process

and the appropriate remedy for the Appellant was to pursue at common law an action in

detinue.

121. In delivering the judgment of the Privy Council, Lord Hope of Craighead considered the

relevant authorities on the issue:

27

Ibid – para. 1077. 28

(2004) UKPC 15 – PCA No. 41 of 2003. 29

CA Civ No. 105 of 2000. 30

(2002) UKPC 5.

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“[20] In Webb v Chief Constable of Merseyside Police [2000] QB 427, [2000] 1 All ER

209, the police sought to retain sums of money which had been seized on suspicion that

they were the proceeds of drug trafficking. It was held that, even although it was

established on balance of probabilities that the money was the proceeds of drug

trafficking, this was no defence to the plaintiffs' claims as they could rely on their right to

possession as against the police. May LJ said at p 448:

“As to entitlement to possession, there is an instructive analysis in the decision of the Supreme

Court of Victoria in Field v Sullivan [1923] VLR 70. The essence of an extended passage in the

judgment of Macfarlan J, at pp 84-87, is that if goods are in the possession of a person, on the

face of it he has the right to that possession. His right to possession may be suspended or

temporarily divested if the goods are seized by the police under lawful authority. If the police right

to retain the goods comes to an end, the right to possession of the person from whom they were

seized revives. In the absence of any evidence that anybody else is the true owner, once the police

right of retention comes to an end, the person from whom they were compulsorily taken is entitled

to possession.”

[21] In Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381,

[2001] 3 All ER 150, [2001] 1 WLR 1437, which was concerned with facts not dissimilar

to those in this case, the police seized a motor car which they believed was stolen and

retained it as its owner was unknown. The person from whom it had been taken raised an

action against the Chief Constable for delivery up and damages for unlawful detention of

the car. It was held by the Court of Appeal that, save so far as legislation otherwise

provided, possession, whether obtained lawfully or not, vested in the possessor a

possessory title which was good against the world save anyone setting up or claiming

under a better title and that, although he at all times knew that the car was stolen, the

claimant was entitled to an order for its delivery and to damages. Lightman J, with whom

Keene and Robert Walker LJJ agreed, said at p 1450D that possession is entitled to the

same legal protection whether or not it has been obtained lawfully or by theft or by other

unlawful means. The decision in Webb v Chief Constable of Merseyside Police [2000]

QB 427, [2000] 1 All ER 209, was followed and applied.

[26] In Ghani v Jones [1970] 1 QB 693, [1969] 3 All ER 1700, 708 of the former report

Lord Denning MR said that the freedom of the individual, whose privacy and possessions

were not to be invaded except for the most compelling reasons, had to be balanced

against the interests of society at large in finding out wrongdoers and repressing crime.

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He then set out at p 708-709 of the former report the following propositions which

explain where the balance is to be struck:

“Balancing these interests, I should have thought that, in order to justify the taking of an article

when no man has been arrested or charged, these requisites must be satisfied:

First: The police officers must have reasonable grounds for believing that a serious offence

has been committed – so serious that it is of the first importance that the offenders should be

caught and brought to justice.

Second: The police officers must have reasonable grounds for believing that the article in

question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by

which the crime was committed (as in the case of the axe used by the murderer) or is material

evidence to prove the commission of the crime (as in the case of the car used by a bank raider

or the saucer used by a train robber).

Third: The police must have reasonable grounds to believe that the person in possession of it

has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his

refusal must be quite unreasonable.

Fourth: The police must not keep the article, nor prevent its removal, for any longer than is

reasonably necessary to complete their investigations or preserve it for evidence. If a copy

will suffice, it should be made and the original returned. As soon as the case is over, or it is

decided not to go on with it, the article should be returned.

Finally: The lawfulness of the conduct of the police must be judged at the time, and not by

what happens afterwards.”

[27] … It means that the following requisites had to be satisfied by the police in order to

justify their continued detention of the motor car. First, they must have had reasonable

grounds when they insisted on detaining it for believing that it was a stolen vehicle.

Second, they had to be in a position to show that its continued detention was reasonably

necessary to complete their investigations or to preserve it for evidence. As Roskill LJ

said in Malone v Metropolitan Police Commissioner [1980] QB 49, [1979] 1 All ER 256,

70, there is no general power in the police, when they have lawfully seized property

which is thereafter not the subject of any charge and is clearly shown not to have been

stolen, to retain that property as against the person entitled to possession of it against

some uncertain future contingency. As he put it, the police who wish to continue to detain

the property must be able to justify their retention of it upon some ground which is

clearly ascertainable.”[all emphasis mine].

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The Evidence

The Claimants’ Evidence

122. The First Claimant alleged that his Sentra has been illegally detained and/or converted by

the police since the 11th

March, 2010 to date and as a result he has and continues to suffer

losses.

123. The Claimants also alleged that their personal items were seized by the police officers

while in custody and upon their release, the items were not returned. The Claimants

contended that, with the exception of a bag of groceries belonging to the First Claimant, none

of their personal items have been returned to date and as a result they have incurred damages.


124. In his evidence, the First Claimant stated that upon arrival to the CID Section of the

Station, the Claimants were searched and all of their personal belongings were taken.31

Upon

his release the First Claimant stated that he requested that the Sentra and his personal items

be returned. At paragraphs 27 through 31 of his Witness Statement, he gives an account of

his efforts to secure the return of the Sentra and his personal belongings:

“27. As we were leaving the station, I requested to the police officers present that they

return my personal belongings and motor vehicle registration number HAZ 4588. My

personal items included the following, my Sony Ericsson cell phone and my Motorola

Rokr cellphone, valued at $2,500.00, my gold chain valued at $5,000.00, $1,500.00 cash

in Trinidad and Tobago dollars and my motor vehicle… However, a police officer…

informed me that I would have to return the next day to get back my belongings.

28. On the 15th

day of March, 2010,… I again visited the police station and we requested

that our items and my motor vehicle be returned to us… Sergeant Kissoonlal … gave me

back the groceries from the backseat of my motor vehicle but nothing else… he informed

me that there were no records of our personal belongings being lodged at the station and

that my motor vehicle… had to be examined by the Forensic Science Centre…

29. On the 16th

June, 2010, I again visited the Chaguanas Police Station… I met with one

Superintendent Cummings and informed him that I would like to get back my motor

31

Witness Statement of the First Claimant filed on 18th

January, 2013 at para. 10.

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vehicle… He then informed me that my motor vehicle… was cleared and would be

returned to me…About one (1) hour later, my keys were handed to me.

30. … a police officer... approached me and grabbed the keys from my hand… He then

shouted … “This car cannot leave the station, it still have to go to the Forensic Science

Centre for testing!”

31. To this date, despite several requests my motor vehicle and my belongings have never

been returned to me…”

125. The First Claimant also denied that he ever tampered with the firewall of the chassis and

replaced it. He stated that when he purchased the Sentra from Debra George in 2009, the

chassis number was the same and even prior to the said purchase the chassis number on the

Sentra was the same as reflected in the Certificate of Analysis. This is evidenced on the

certified copy of the Sentra which was annexed to his witness statement. It is on this basis

that the First Claimant argued that the detention of his Sentra was unlawful.32

126. Under cross-examination, the First Claimant maintained that the Sentra was owned by

him since 2009. He stated that he purchased it from Debra George who accompanied him to

transfer the Sentra in December 2009. He also stated that he offered to show his certificate of

ownership and receipt for an engine bought from Bicks to the police officers at the time of

arrest. The First Claimant also admitted that he was informed that the chassis number of the

Sentra was found to be tampered with and as such, it was being detained to conduct

investigations.

127. The Agreed Bundle of documents also included a certified copy of the Registration Card

for the Sentra which records that the First Claimant is the registered owner thereof since 21st

December 2009 and that the previous owner was in fact Debra George.

128. In relation to his other personal belongings, the First Claimant stated as follows under

cross-examination:

“I spoke to East Indian officer about getting belongings. I had a walkman. I provided no

receipt for that. I had another cell phone. In my statement of 18th

March, 2010 I said the

Sony Ericson was $1,200.00. I said it was between $1,200.00 to $1500.00. I did not say

that in my witness statement. I made claims for both phones from beginning…”

32

Witness Statement of the First Claimant filed on 18th

January, 2013 at paras. 36 to 39.

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129. When shown the particulars of special damage outlined in his Statement of Case the First

Claimant stated:

“I don't see claim for second phone here. At para 27 of my witness statement, I said both

phones were valued at $2,500.00. In statement dated 18th

March, 2010 I said Rokr was

valued at $900.00. I have no receipt for Rokr. It is not true that no phone was found in my

possession. I said 2 oz of gold valued at $5,000.00. The gold chain was 2 oz. I said it was

worth about $3000.00. I said it was worth $5,000.00. I signed statement without looking.

I don't have a bank account. I get paid through the Bank. I don't walk around with large

amount of cash. My mother gave me money to give my brother. He told me to hold it

because he had no pocket. It was not in my wallet. I had gold chain and money with me. I

contacted police station many times about vehicle. I did not include complaint about

getting back my vehicle. I signed police complaint on 15th March 2010.”


130. The Second Claimant gave the following evidence in relation to the seizure and return of

his personal items:

“7. The police officer of African descent searched me and took out of the front right

pocket of my jeans a black cardholder from the Eastern Credit Union, which had my

drivers permit, a prayer card. The said police officer also took my red Motorola cellular

phone, which I had, in my left front pocket. The officer took these items from me and they

were never returned.

37. As we were leaving the police station, I requested that the police return my

belongings, which included my driver’s permit, prayers and my Motorola cell phone.

However, I was only given back my driver’s permit and prayers. When I asked about my

cell phone, a police officer… indicated to us that we would have to return the next day to

collect our belongings.

38. On the 15th

day of March 2010… I again visited the Chaguanas Police Station and we

requested that our items be returned to us… Sergeant Kissoonlal attended to us… When I

again asked him about my cell phone he said to us that there was no records of our

personal belongings being lodged in the station and as such he does not know anything

about that.”

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131. Under cross-examination, when questioned about the seizure of his belongings at the

Pricesmart carpark, the Second Claimant stated as follows:

“They gave me back Driver’s Permit but kept my phone. They gave me back phone to

answer when brother was calling to ask where car was gone. Police gave me phone to

answer it. I said in my Witness Statement that he took it back.”

132. When shown paragraph 9 of his witness statement, the Second Defendant admitted that

he did not in fact state therein that the officer took back the cell phone from him after he had

spoken to his brother.

133. He further stated as follows under cross-examination:

“In the statement of case, I said I lost $500 for phone. I said I lost $1,500 (in statement

dated 18th

March, 2010). That was money from my mother that I told him (Ricardo) to

keep for me. He claimed it but it was my money and that is same thing.”


134. The Third Claimant gave the following evidence in relation to the seizure and return of

his personal items:

“12. … we were taken to the CID section of the station. I was searched and my Nokia

phone and $300 in Trinidad and Tobago currency was taken from me….

30. As we were leaving the police station, I requested that the police return my

belongings, which included my Nokia phone and the sum of $300. However, the police

informed me that I would have to come back the next day to collect our belongings. On

the 15th

day of March 2010… I again visited the Chaguanas Police Station and we

requested that our items be returned to us… Sergeant Kissoonlal attended to us… When I

again asked him about my cell phone and money he said to us that there was no records

of our personal belongings being lodged in the station and as such he does not know

anything about that.”

135. Under cross-examination, the Third Claimant maintained that his cell phone and money

were seized. He further stated that:

“I had my money I went down with…. I don't have number for cell phone to tell Court

today. I don't have receipt for phone. I did not go by B-mobile to get copy.”

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136. It is the Defendant’s case that the arresting officer along with the other officers involved

in the investigation had reasonable and probable cause to seize the Sentra. The Defendant

further claims that the investigation into the ownership of the Sentra is still ongoing and as

such it cannot be held liable for any associated losses. 33

137. Further, the Defendant denied that any personal belongings of the Claimants were seized

and contended that the Claimants were not in possession of the alleged items when arrested.34

PC Balkaran

138. In relation to the seizure and detention of the Sentra, PC Balkaran stated in his evidence

that as a result of receiving certain information, the Sentra was intercepted. At paragraph 5 of

his Witness Statement he went on to state:

“5. … I then received further information from E999 Command center that HAZ 4588

was registered as a green B 14 motor vehicle under the name of Nigel Lewis of Martinez

Street Arima.

7. …the First Claimant … introduced himself as the owner of HAZ 4588. I informed all

three men of the information in relation to the vehicle and cautioned them and they

remained silent. The First named Claimant never offered to provide his certified copy …”

9. … Thereafter they were separated and interviewed in relation to Larceny of HAZ 4588.

I took the Third named Claimant to the Robbery Squad Office and interviewed him for

about ten to fifteen minutes. The Third named Claimant did not want to give a

statement…”

139. PC Balkaran gave evidence that the Sentra was inspected by personnel from the Stolen

Vehicles Unit on 19th

March, 2010 who gave instructions for the Sentra to be taken to the

Forensic Science Centre for testing in relation to apparent tampering with the chassis

number. He also stated that he applied for a certified copy for the Sentra and never received

same. As to the findings of the said testing, he stated as follows:

“16. On or about 14th

May, 2010, Josana Salina, a Scientific Officer I attached to the

Forensic Science Centre, examined HAZ 4588 at the Chaguanas Police Station and she

33

Defence filed on 1st June, 2012 at paras 14-15, 21-23.

34 Defence filed on 1

st June, 2012 at paras. 7 and 20.

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later provided me with a Certificate of Analysis dated November 12, 2010 which

indicates that the original Chassis number was cut out and replaced…

17. The last thing I know about the vehicle is that it was lodged at the Chaguanas Police

Station and the Stolen Vehicles Unit was conducting certain investigations.”

140. Under cross-examination, PC Balkaran stated as follows:

“The information that they would have passed to me was that this motor vehicle was

observed to be slowing down and stopping in the vicinity of parked unoccupied vehicles

on compound… As a result of receiving that information and other reason, I intercepted

vehicle. I made contact with E999 command center and passed on information relative to

HAZ 4588 and they in turn passed information back to me that this vehicle was recorded

on their database as a Nissan B14 motor vehicle registered to Nigel Lewis of Martinez

Street, Arima. I observed that the vehicle was a white coloured B12 vehicle…

On this exercise, there had been reports of larceny of vehicles on Price Plaza

compound…

When I met Randy and Keiron, Ricardo arrived approximately five minutes after. Before

this, Randy informed me that he was not owner of vehicle. He said Ricardo was owner of

vehicle. When Ricardo arrived, he informed me that he was owner of vehicle. He did not

show me certified copy of ownership for vehicle.

As a result of what he told me, I informed him of the information I had received… I asked

him for certified copy…

It is not in my Witness Statement that I asked him for certified copy. I agree it is relevant

fact in this matter whether he showed me certified copy or not. I recall you asking me

whether I put all relevant facts in Witness Statement…

The First Claimant never offered to provide a certificate of insurance for vehicle even

though he said vehicle was his. I asked him for it. I wanted to ensure it was his vehicle.

When I asked him for certified copy he did not produce anything to me…”

141. In relation to the investigation conducted regarding the Sentra, under cross-examination,

PC Balkaran stated as follows:

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“I was also investigating officer in respect of the car. The Claimants were interviewed. I

interviewed the third claimant. I can't recall at this time who interviewed the first or

second claimant. I gave instructions for them to be interviewed. The interview with third

claimant lasted approximately 10-15 minutes. I interviewed him alone. I did not make

recordings of that interview. I did not record this in station diary that I was going to

interview him. I did not record it in my pocket diary. I don't recall if I had a personal

diary. There is nowhere that interview was recorded. I interviewed the third claimant in

relation to the vehicle. I did not accuse him that number plate was tampered with. To the

best of my recollection I interviewed him in relation to larceny of vehicle. I can't recall if

this is first time I am speaking about larceny of vehicle. He made utterances to me that he

only went for a drive with first and second claimants. I attempted to verify that

information. I spoke to other officers who interviewed first and second claimants. I agree

that I attempted to verify information is not in my Witness Statemet. That is an important

matter but it is not in my Witness Statement…

I came off duty but I can't recall what time that was. I did not return to station until 13th

March, 2010. While they were in station, I cannot recall what I would have done by way

of investigation. I agree there is nothing in my Witness Statement about what

investigation I did while they were at Chaguanas Police Station. Based on information

from Command Center the vehicle was green B14 in name of Nigel Lewis. I did not

contact Nigel Lewis while they were at station. I agree there is nothing in Witness

Statement about investigations done by me as investigating officer while they were in

station. When I resumed duty on 13th

March, 2010, I had no dealings with them. They

remained in cell and I had no dealings with them.

I am experienced officer and I am familiar with standing orders. I am familiar with

standing orders in relation to station diaries. I can't recall what it says.

… There is no record of vehicle being seized… I agree there is nothing to say from these

entries… and nothing about seizure of vehicle.”

142. Under cross-examination relative to the Claimants’ possession of any belongings, PC

Balkaran stated:

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“I searched them. I searched all of Claimants.... I did not find anything in their

possession. They had no wallets. They had no car keys. They had no cell phone. They had

absolutely nothing on them.”

PC Charlerie

143. In his Witness Statement PC Charlerie made no mention of the seizure and detention of

the Sentra at the Station or any of the personal items belonging to the Claimants. In his cross-

examination, Counsel for the Claimants did not pose any questions to him with respect to the

detention of the Sentra at the Station or the seizure of and refusal to return to the Claimants

their personal items.

PC Seepersad

144. At paragraph 9 of his Witness Statement, PC Seepersad stated that he had no recollection

of the Claimants having anything in their possession, with the exception of the Sentra.

145. Under cross-examination, Counsel for the Claimants did not pose any questions to him

with regard to the seizure by the Police of personal items from the Claimants or the refusal to

return such items to them.

PC Aroon

146. At paragraph 9 of his Witness Statement, PC Aroon stated that he did not witness anyone

or partake in the larceny of any money, jewellery, cell phone or any personal property of the

Claimants.

147. Under cross-examination, Counsel for the Claimants did not pose any questions to him

with regard to the seizure by the Police of personal items from the Claimants or the refusal to

return such items to them.

Analysis and Findings

148. In consideration of the evidence adduced and in application of the relevant legal

principles, I find as follows:

Conversion/Detinue of the Sentra:

149. The First Claimant is entitled to succeed in his claim for conversion of the Sentra on the

grounds that the police officers, by refusing to return the Sentra to him, deliberately acted in

a manner inconsistent with his right to possession thereof.

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150. The initial seizure of the Sentra by PC Balkaran was justified based on his suspicion that

it was a stolen vehicle. He said he ordered a certified copy of the certificate of ownership in

March 2010 but he failed to obtain same within a reasonable time or at all. Further, he stated

that he received a certificate of analysis from the Forensic Science Centre but after his desk

was ransacked in July 2010, he could not locate same so he ordered another copy which he

received in November 2010. Upon my perusal of the Certificate of Analysis, I have noted

that it is dated 20th

May, 2010 and that there is a certificate thereon dated November 12, 2010

stating that it was a true and correct copy of the original certificate of analysis. Assuming

therefore that PC Balkaran received the original certificate of analysis shortly after 20th

May

2010, he did not lay any charge against the First Claimant or any of the Claimants with

respect to the possession of the Sentra within a reasonable time thereafter or at all. Further, I

accept the evidence of the First Claimant, that he again visited the Station on 16th

June, 2010

and again requested the return of the Sentra and was denied same. In my opinion, by 16th

June, 2010, a reasonable time had elapsed for PC Balkaran to make a decision whether to lay

a charge against the First Claimant or release the Sentra to him. This was in excess of three

months since the Claimants were released without charge and also almost one month after the

date of the certificate of analysis. It is not in dispute that PC Balkaran failed to lay any charge

against the First Claimant with respect to his possession of the Sentra and the Defendant’s

justification for the failure of the police to return the Sentra to the First Claimant was that

“investigations as to the true owner of the vehicle are still continuing.”35

However, PC

Balkaran did not produce any evidence that the Sentra was registered in the name of Nigel

Lewis and the certificate of ownership which was included in the Agreed Bundle of

documents confirmed that the First Claimant was the registered owner since December 2009.

He also stated that he did not contact Nigel Lewis while the Claimants were at the Station

and he did not give any evidence that he carried out any further investigations after their

release.

151. I accept the evidence of the First Claimant that he made a request for the return of the

Sentra on 16th

June, 2010 which was not challenged under cross-examination. Further,

notwithstanding the service of the Claim Form and Statement of Case upon the Defendant on

the 17th

November 2011, the Police have refused to return same to him.

35

Paragraph 21 of Defence filed on 1st

June 2012.

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152. In my opinion, the Defendant has not justified the refusal to return the Sentra to the First

Claimant when he requested same on 16th

June, 2010. Further, the Defendant has not justified

the continued detention of the Sentra by the Police after 16th

June, 2010 by reference to any

charge laid against the First Claimant or any other investigation being conducted in relation

thereto. Such refusal by the police to return the Sentra to the First Claimant amounted to a

wrongful dealing with the Sentra in a manner inconsistent with the First Claimant’s right to

possession thereof. Therefore, the Claimant is entitled to recover damages for conversion of

the Sentra.

Conversion/Detinue of Personal Items


153. The First Claimant is entitled to succeed in his claim for conversion of his Sony Ericsson

phone as pleaded and not a Rokr phone which was not claimed in the particulars of special

damages. I accept the First Claimant’s evidence that he had a mobile phone with him on the

night that he was arrested and that he used same to contact the Second Claimant when he

came out of Superpharm and could not locate the Sentra and the Second and Third

Claimants. However, having regard to the conflict between the value of the Sony Ericsson

phone as pleaded, and the value stated in his Statement dated 18th

March 2010 and the value

stated in his Witness Statement, I find that the Claimant is only entitled to recover $1,200.00

for the conversion of the Sony Ericsson phone.

154. The First Claimant is not entitled to succeed in his claim for conversion of a gold chain.

The First Claimant claimed that he had a gold chain in in his possession and that it was

seized by the police when he was taken to the Station and that it was never returned to him.

However, his credibility in this regard was severely undermined by the conflict which was

revealed between the Statement of Case and the Witness Statement which both placed the

value of the chain at $5,000.00 and the Statement given by the First Claimant on the 18th

March 2010 which placed its value at $3,000.00. As a consequence of this conflict, I am not

satisfied that the First Claimant was being truthful as to his possession of a chain or the value

thereof. The burden lay upon the Claimant to prove his special damages and since it is

apparent that he sought to mislead the Court in claiming $5,000.00 for the loss of a gold

chain, I am not prepared to find in his favour in respect of this claim.

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155. The First Claimant is not entitled to succeed in his claim for conversion of $1,500.00

cash. In his Witness Statement, the First Claimant claimed that as he was leaving the Station

he asked the officers to return his personal belongings which included $1,500.00 cash.

However, under cross-examination, he said that he was holding this money for the Second

Claimant because the Second Claimant had no pocket. However, this evidence is in conflict

with the Second Claimant’s evidence. In his witness statement, the Second Claimant stated

that he was searched by a police officer at Price Plaza and the officer “took out of the front

right pocket of my jeans a black cardholder from the Eastern Credit Union, which had my

driver’s permit, a prayer car. The said police officer also took my red Motorola cellular

phone which I had in my left front pocket. The officer took these items from me and they were

never returned.” However, this evidence was in further conflict with the statement given by

the Second Claimant to the Police on the 18th

March 2010 where he stated that “the negro

police officer rub me down and he take out from my front right ¾ jeans pocket a black bank

card holder from Eastern Credit Union which had my driver’s permit, a card with a prayers

and $1,500.00 in cash Trinidad and Tobago currency made up of fifteen (15) one hundred

dollar bills in it. The negro police also take a Red Motorola camera phone that I had in my

left front pocket.”

156. Having regard to these conflicts in the evidence, I do not believe that the First Claimant

had in his possession $1,500.00 cash belonging to the Second Claimant which was taken

away from him by the police officers since the Second Claimant clearly stated that he had

two front pockets in his jeans and shortly after the incident he claimed in his statement dated

18th

March 2010 that the police took this amount from him when he was searched.


157. The Second Claimant is entitled to succeed in his claim for conversion of his Motorola

mobile phone on the grounds that I believe that he had a mobile phone in his possession at

Price Plaza which he used to answer the call from the First Claimant. I also believe that the

police took away this phone from him and have refused to return same. Although the Second

Claimant failed to bring any evidence to prove the value of the phone, he was not shaken in

his evidence that its value was $500.00 during cross-examination. Accordingly, the Second

Claimant is entitled to recover $500.00 for the loss of his Motorola phone.


of 81

158. The Third Claimant is entitled to succeed in his claim for conversion of his Nokia mobile

phone and cash of $300.00 on the grounds that I believe his evidence that these items were

taken away from him when he arrived at the Station and never returned to him. The Third

Claimant was not shaken under cross-examination and although he could not provide the

number of his cell phone to the Court, in his statement dated 18th

March 2010 he gave the

number of his cell phone. This lends credibility to his evidence.

E: ARE THE CLAIMANTS ENTITLED TO DAMAGES INCLUDING AGGRAVATED

AND EXEMPLARY DAMAGES?

SPECIAL DAMAGES

The Law

159. It is trite law that special damages must be specifically pleaded and proved. In

Rampersad v Willies Ice-cream Ltd36

Archie JA (as he then was) opined that a Claimant

was required to prove his losses. He stated:

“The rule is that the plaintiff must prove his loss. The correct approach is as stated by

Lord Goddard C.J in Bonham Carter v Hyde Park Hotel [1948] 64 Law Times 177:

“Plaintiffs must understand that if they bring actions for damages, it is for them

to prove their damage, it is not enough to write down the particulars, so to speak,

throw them at the head of the court saying ‘this is what I have lost, I ask you to

give me these damages. They have to prove it.”

160. However, in the later Court of Appeal decision of Great Northern Insurance Company

Limited v Ansola,37

Mendonca JA stated as follows:

“[97] ...it seems clear that the absence of evidence to support a plaintiff’s viva voce

evidence of special damage is not necessarily conclusive against him. While the absence

of supporting evidence is a factor to be considered by the trial Judge, he can support the

plaintiff’s claim on the basis of viva voce evidence only. This is particularly so where the

evidence is unchallenged and which, but for supporting evidence, the Judge was

prepared to accept. Indeed in such cases, the Court should be slow to reject the

36

Civ App 20 of 2002 37

Civ App 169 of 2008

of 81

unchallenged evidence simply and only on the basis of the absence of supporting

evidence. There should be some other cogent reason.” (emphasis mine).

161. Accordingly, the door is not completely shut on a Claimant who pleads special damages

without producing documentary evidence in support of same. The court has a discretion to

make an award of special damages where the evidence with respect thereto is unchallenged,

providing that the court is otherwise minded to accept it.

162. According to Halsbury’s Laws of England:

“In actions for conversion the measure of damages is ordinarily the value of the goods at

the date of conversion.38

There is no universal rule for the assessment of damages in

conversion. Conversion varies widely both in form and in effect and requires a flexible

remedial response. In general, damages in conversion are compensatory, their object

being to repair the actual loss which the claimant suffers by reason of the conversion.

This conforms to the general rule that damages in tort must (so far as money can do so)

put the person whose right has been invaded in the same position as if it had been

respected. Accordingly, an award of damages in conversion must operate neither by way

of penalty to the defendant nor by way of windfall to the claimant. In general, there must

also be a causal connection between the act of conversion and the loss sustained, and

proof of actual loss.”39

Analysis & Findings – Special Damages

163. In the Defendant’s closing submissions filed on 23rd

May, 2014, in relation to special

damages claimed, it was submitted by Counsel that the Claimants had presented no evidence

in support of their claim for detinue and/or conversion and as such no damages should be

awarded.40

In respect of the First Claimant’s claim for loss of earnings it was submitted by

Counsel that such should not be allowed as he had failed once again to provide a bank

statement to support his income.41

Further, as to the First Claimant’s claim for loss of use, it

was submitted by Counsel that loss of use for driving a taxi was a claim for special damages

that had to be specifically proven but the First Claimant failed to disclose his taxi badge and

38

Volume 29 (2014) – para. 414. 39

Volume 45(2) Re-Issue para. 615. 40

Defendant’s Closing Submissions filed on 23rd

May, 2014 at para 140. 41

Ibid at para 30.

https://www.lexisnexis.com/uk/legal/#ref34352832295F546F72745F3032283630312D383439295F3137_4






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in the absence of such evidence, only nominal damages could be awarded. The authority of

Heru & Others v Singh & Another (CV 2005-000129) was relied upon. 42

164. Further, by way of its propositions of law filed on 31st October, 2013, the Defendant

submitted that if the court were to rule in favour of the First Claimant in relation to loss of

use, a reasonable award would be $30.00 for 105 days. Counsel relied on the authorities of

Cassar v Home of the Running Chef Limited (HCA No. 796 of 1990) and Mahase v The

Attorney General of Trinidad and Tobago (CV2008-00027).43

165. In the Claimants’ closing submissions filed on 12th

November, 2014, it was argued that

although there was no documentary evidence in support of the special damages claimed, this

Court had a “measure of flexibility in the degree of proof”. It was further submitted that the

circumstances of the detinue and conversion was to be borne in mind along with the fact that

it may not have been reasonably practicable for the receipts of the pleaded items to have been

retained. In support of these arguments the Claimant relied on the authorities of Grant v

Moonan (CV 162 of 1995) and Ratcliffe v Evans (1892 2QB 524) respectively. Ultimately, it

is the Claimants’ case, as per their closing submissions, that the special damages pleaded

flow as a natural consequence of their unlawful detention and the detinue and /or conversion

of their property.

166. Further, by way of the Claimants’ propositions of law filed on 7th

May, 2012 and closing

submissions filed on 12th

November, 2014, it was submitted that on examination of the First

Claimant’s claim it is apparent that the Sentra is no longer roadworthy and has been

irreversibly converted. It was further submitted that the First Claimant was also entitled to

recover loss of use for at least 8 months from the date of conversion at a daily rate of

$150.00.

Conversion/Detinue of the Sentra

167. Having already determined that the First Claimant is entitled to succeed in his claim for

conversion of the Sentra, the issue arises as to the quantum to be awarded in respect of such

conversion. In the Statement of Case, the First Claimant claimed damages for detinue of the

Sentra in the amount of $17,000.00. In addition, he claimed loss of use of the Sentra at the

42

Ibid at para. 29. 43

Defendant’s Propositions of Law filed on 31st October, 2013 at paras 101 – 103.

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rate of $150.00 per day for 16 months amounting to $48,000.00 and loss of earnings of

$450.00 for three days.

168. However, in his Witness Statement, the First Claimant did not give any evidence as to the

value of the Sentra as at the date of seizure. The normal measure of damages for conversion

is the market value of the goods converted. As stated by Greer LJ in Hall v. Barclay,44

“where you are dealing with goods which can be readily bought in the market, a man whose

rights have been interfered with is never entitled to more than what he would have to pay to

buy a similar article in the market.” Counsel for the Claimants sought to argue that,

notwithstanding the absence of such evidence, the Court should exercise flexibility with

regard to the degree of proof necessary. However, it is trite law that a claim for special

damages must be specifically pleaded and specifically proved and the burden of proof lies

upon the person seeking to recover an award of special damages. The Claimant did not give

any evidence as to the amount he paid to purchase the Sentra in December 2009 from Debra

George, a mere three months before it was seized by the police. He failed to call Debra

George to give evidence of the price of the Sentra when she sold it to him. He failed to

produce a receipt for the payment of the purchase price and he failed to give any evidence as

to its condition in March 2010. In the circumstances, the Court is left to speculate as to the

value of the Sentra at the date of conversion.

169. According to the certificate of ownership which formed part of the Agreed Bundle of

documents, the year of manufacture of the Sentra was 1994, which means that in March 2010

it was 16 years old. Although I am satisfied that the First Claimant has suffered some loss as

a result of the conversion of the Sentra, in the absence of any evidence of the value of the

Sentra as at the date of conversion, I am only prepared to award the First Claimant nominal

damages in the amount of $10,000.00.

Loss of Earnings

170. The First Claimant has claimed loss of earnings for three days on the basis that he had to

re-apply for a new Driver’s Permit and was unable to work as a taxi-driver for that period. In

my opinion, the First Claimant has failed in his Witness Statement to give any evidence in

support of this claim. Accordingly, this claim is not allowed.

44

(1973) 3 All E.R. 620 at 623

of 81

Loss of Use

171. In respect of this claim, the First Claimant is entitled to recover loss beyond that

represented by the value of the Sentra through being deprived of its use. This will turn on the

principles of remoteness of damage.45

However, he failed to produce his taxi badge or to

adduce evidence in support of his earnings as a taxi-driver. He simply stated that he lost

$150.00 per day and did not explain how he arrived at this amount. Notwithstanding the

absence of this evidence, I am satisfied that the First Claimant has suffered some loss as a

result of being deprived of the Sentra which was registered as a taxi. Given that I have

already awarded nominal damages to the First Claimant for the conversion of the Sentra, I

am prepared to award him nominal damages for the loss of use in the amount of $10,000.00.

Conversion/Detinue of Personal Items


172. Having already determined that the First Claimant is entitled to succeed in his claim for

conversion of his Sony Ericsson phone, I take into account the conflict between the value of

the Sony Ericsson phone as pleaded, that is $1,500.00, the value stated in his Statement dated

18th

March 2010, namely $1,200.00, and the value of two phones stated in his Witness

Statement, that is $2,500.00. Although the First Claimant has failed to provide documentary

evidence in support of the value of this item, I find that the Claimant is entitled to recover

$1,200.00 for the conversion of the Sony Ericsson phone.


173. Having already determined that the Second Claimant is entitled to succeed in his claim

for conversion of his Motorola mobile phone, I find that although the Second Claimant failed

to bring any evidence to prove the value of the phone, he was not shaken in his evidence that

its value was $500.00 during cross-examination. Although the Second Claimant has failed to

provide documentary evidence in support of the value of this item, I find that he is entitled to

recover $500.00 for the loss of his Motorola phone.

45

Mc Gregor on Damages (16th

Edition) at para1436.

of 81


174. Having already determined that the Third Claimant is entitled to succeed in his claim for

conversion of his Nokia mobile phone and cash of $300.00, I find that the Third Claimant is

entitled to recover $600.00 for the conversion of his phone and cash although he has failed to

provide documentary evidence in support of the value of the phone.

GENERAL DAMAGES

The Law

175. In Seegobin v The Attorney General of Trinidad and Tobago46

Master Alexander

stated that:

“15. The primary object of an award of damages is to compensate the claimant for the

harm done to him. The secondary object is to punish the defendant for his conduct of

inflicting harm. In determining the award to compensate the claimant, the Privy Council

in Tamara Merson v The Attorney General of the Bahamas (PC Appeal 61 of 2003)

recommended that a distinction be made between compensatory damages (which would

include aggravated damages) and exemplary damages and the elements attributable to

these awards are to be identified.

16. In making the compensatory award, account shall be taken of the aggravating

features. The normal practice is that one figure is awarded as general damages. As noted

in the case of Thaddeus Bernard, Airports Authority of Trinidad v Nixie Quashie (CA Civ

159 of 1992), de la Bastide CJ (as he then was) explained, “[T]hese damages are

intended to be compensatory and include what is referred to as aggravated damages, i.e.

damages which are meant to provide compensation for the mental suffering inflicted on

the plaintiff as opposed to the physical injuries he may have suffered. Under this head of

mental suffering are included such matters as the affront to the person’s dignity, the

humiliation he has suffered, the damage to his reputation and standing in the eyes of

others and matters of that sort.”

46

HCA No. CV – 2009 - 03089

of 81

AGGRAVATED DAMAGES

The Law

176. In the Privy Council decision of Subiah v The Attorney General of Trinidad and

Tobago47

Lord Bingham stated as follows in relation to compensation for aggravated

damages:

“Such compensation will take account of whatever aggravating features there may be in

the case, although it is not necessary and not usually desirable (contrary to the practice

commended by the Court of Appeal of England and Wales for directing juries in

Thompson v Commissioner of Police of the Metropolis [1998] QB 498, 516 D-E) for the

allowance for aggravated damages to be separately identified. Having identified an

appropriate sum (if any) to be awarded as compensation, the court must then ask itself

whether an award of that sum affords the victim adequate redress or whether an

additional award should be made to vindicate the victim’s constitutional right. The

answer is likely to be influenced by the quantum of the compensatory award, as also by

the gravity of the constitutional violation in question to the extent that this is not already

reflected in the compensatory award. As emphasised in Merson, however, the purpose of

such additional award is not to punish but to vindicate the right of the victim to carry on

his or her life free from unjustified executive interference, mistreatment or oppression.”

177. According to Smith JA in Merrick v The Attorney General of Trinidad and Tobago

and Others:48

“28. Aggravated damages are an element of the compensatory damages awarded to a

claimant to cater for an element of aggravation of the injury to the claimant. These

damages are separate and distinct from exemplary damages which are in the nature of a

punitive award of damages against a wrongdoer. An appropriate citation for the place of

aggravated damages in unlawful detention/false imprisonment is from the case of

Takitota v Attorney General and Others [2009] UKPC 11 where at paragraph 11 Lord

Carswell stated:

“In awarding compensatory damages the court may take account of an element of aggravation.

For example, in a case of unlawful detention it may increase the award to a higher figure than it

47

PCA No. 39 of 2007. 48

Civ App No. 146 of 2009 – Delivered on 5th

February, 2013.

of 81

would have given simply for the deprivation of liberty, to reflect such matters as indignity and

humiliation arising from the circumstances of arrest or the conditions in which the Claimant was

held. The rationale for the inclusion of such an element is that the Claimant would not receive

sufficient compensation for the wrong sustained if the damages were restricted to a basic award.”

29. In Trinidad and Tobago, the accepted practice in cases of unlawful detention/false

imprisonment is to include the award for aggravated damages in the award of general

damages. (See de la Bastide C.J. in Thaddeus Bernard and Another v Nixie Quashie Civil

Appeal 159 of 1992 at page 5 and the most recent endorsement of this practice by the

Privy Council in Subiah v Attorney General of Trinidad and Tobago [2008] UKPC 47 at

paragraph 11). Even though a court must indicate the basis upon which it proposes to

make an award for aggravated damages, there is no need to state such aggravated

damages as a separate award.”

False Imprisonment

178. In Merrick (supra)49

Smith JA, stated as follows:

“21. In considering the adequacy of the trial judge’s award of damages one must always

bear in mind that this is a claim for the tort of false imprisonment. The principal heads of

general damage for this tort are firstly, compensation for the injury to liberty and

secondly, compensation for the injury to feelings. Under the head of compensation for

injury to feelings, matters that can be considered include the indignity, mental suffering,

disgrace, humiliation and loss of reputation suffered. (See McGregor on Damages 15th

Edition page 619).

22. The award of damages under the two heads of compensation for the injury to liberty

and the injury to feelings involves many subjective factors. So much so that one can

safely say that no injury to liberty or feelings will be the same as between different

persons. Hence in assessing general damages for false imprisonment:

“Any one person trying to fix a sum as compensation will probably find in his mind a wide bracket

within which any sum could be regarded by him as not unreasonable— and different people will

come to different conclusions. So in the end there will probably be a wide gap between the sum

which on an objective view could be regarded as the least and the sum which could be regarded

as the most to which the plaintiff is entitled as compensation.” (per Lord Reid in Cassell & Co Ltd

v Broome and Another [1972] 1 All ER 801 H.L. at page 836.)

49

Civ App No. 146 of 2009 – Delivered on 5th

February, 2013.

of 81

Therefore in the exercise of assessing general damages for the tort of false imprisonment

there will probably be a wide range within which an award could reasonably be made

without interference from a court of appeal.

Further, in considering a range within which damages should fall, comparable cases are

a useful guide to both trial and appellate judges.”

Assault & Battery

179. In determining the general damages to be awarded for personal injuries, the Court is to be

guided by the principles set out by Wooding CJ, in Cornilliac v St. Louis,50

which are

summarized as follows:

i. the nature and extent of the injuries sustained;

ii. the nature and gravity of the resulting physical disability;

iii. pain and suffering which had to be endured;

iv. loss of amenities suffered; and

v. the extent to which pecuniary prospects were materially affected.

Analysis and Findings – General and Aggravated Damages [False Imprisonment]

180. In their Witness Statements, the Claimants described the conditions in the cell at the

Station as filthy with a disgusting smell of stale urine and faeces. They said that the cell had

no running water and the toilet was clogged with gazette paper and water overflowed into the

cell whenever the toilet was flushed. Under cross-examination, the First and Second

Claimants were not shaken in their evidence as to the condition of the cell but the Third

Claimant admitted that the cell was not dirty but insisted that the toilet would overflow onto

the ground in the cell.

181. In his witness station, PC Balkaran stated that there were four cells at the Station and

there was a toilet in each cell which was flushed from the outside and the cells were cleaned

on a daily basis by MTS. This was corroborated by PC Aroon in his witness statement. PC

Charlerie and PC Seepersad did not give any evidence with respect to the condition of the

cells. However, under cross-examination, PC Balkaran admitted that the cleaning of the cells

was supposed to be recorded in the Station Diary but there was no such entry. Further, he did

not see any cleaner from MTS cleaning the cell and he could not say if there was faeces in

50

(1966) 1 WIR 491

of 81

the cell. Further, under cross-examination, PC Aroon stated that he could not agree or

disagree as to whether the cells were clean or not.

182. In the light of this evidence, I believe the evidence of the Claimants as to the condition of

the cells for the period of their detention and find that the cells in which they were

incarcerated were in a filthy condition with a disgusting smell of stale urine and faeces, that

the cells had no running water and the toilet was clogged with gazette paper and water

overflowed into the cell whenever the toilet was flushed.

183. The Claimants also stated in their witness statements that during the period of their

detention they were not informed of their constitutional right to retain and instruct an

Attorney-at-Law or allowed a telephone call to a friend or relative. Under cross-examination,

the First and Third Claimants insisted that they were not so informed but the Second

Claimant admitted that he was informed of his constitutional rights and privileges.

184. In his witness statement, PC Balkaran said he informed the Claimants of their legal rights

and privileges at the time of their arrest and this was corroborated by PC Charlerie in his

witness statement. Under cross examination, PC Balkaran insisted that he cautioned the

Claimants and informed them of their rights and privileges at the time of their arrest and PC

Charlerie was not cross-examined on this point.

185. In the light of the conflict between the evidence of the First and Third Claimants and the

evidence of the Second Claimant on this point, I am prepared to accept the evidence of PC

Balkaran and so find that he informed the Claimants of their constitutional rights and

privileges at the time of their arrest.

186. In the Defendant’s Closing Submissions filed on 23rd

May, 2014, it was submitted by

Counsel that the arrest and continued detention of the Claimants was lawful and that any

aggravating features of the arrest as claimed were unreliable when tested against the

evidence. 51

187. In the Defendant’s Propositions of Law filed on 31st October, 2013, Counsel submitted

that if the Court were to rule in favour of the Claimants and find that they were falsely

imprisoned, a reasonable award for general damages including aggravated damages should

51

Paras. 138 - 139.

of 81

be within the range of $30,000.00 to $50,000.00 for each Claimant.52

Counsel suggested that

the Court should be guided by the awards made in following authorities:

a. Henry v The Attorney General of Trinidad and Tobago (CV2007-03897);

b. Koon Koon v The Attorney General of Trinidad and Tobago (CV2007-02192);

c. Kowlessar v The Attorney General of Trinidad and Tobago (HCA 350 of 1997); and

d. Mc Kenna v The Attorney General of Trinidad and Tobago & Another (CV2006-

03114).

188. In the Claimants’ Closing Submissions filed on 12th

November, 2014, and Propositions of

Law filed on 7th

May, 2012, it was submitted that an award of $80,000.00 should be made to

each Claimant as general damages inclusive of an uplift for aggravated damages.53

. The

Claimants relied on the following authorities:

a. Barcoo v The Attorney General of Trinidad and Tobago (HCA 1388 of 1989);

b. Clement v The Attorney General of Trinidad and Tobago (CV Civ. No. 95 of 2010);

c. Ramdial v The Attorney General of Trinidad and Tobago (CV2009-02336);

d. Huggins v The Attorney General of Trinidad and Tobago (HCA 1714 of 1998);

e. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695);

f. Superville v The Attorney General of Trinidad and Tobago (CV2011-01152);

g. Bernadine v The Attorney General of Trinidad and Tobago (CV2010-02956);

h. Mitchell v The Attorney General of Trinidad and Tobago and Another (CV2007-

03220);

i. Francis v The Attorney General of Trinidad and Tobago (HCS 268 of 2003); and

j. Mohammed v The Attorney General of Trinidad and Tobago and Others (CV2009-

02792).

189. Having already determined that the arrest of the Claimants was lawful but their

subsequent continued detention between 8.00 a.m. on 12th

March, 2010 and 9.30 a.m. on 14th

March 2010 was unlawful, I find that the Claimants are entitled to general damages including

aggravated damages for their unlawful detention for a period of 49 ½ hours. In the

determination of an appropriate award of damages under this head, I have reviewed the

authorities submitted by the parties and have found the following to be of direct relevance:

52

Para. 77. 53

Claimants’ Closing Submissions at Page 52; Claimants’ Propositions of Law at Para. 35.

of 81

a. Huggins v The Attorney General of Trinidad and Tobago (HCA 1714 of 1998) -

delivered by Mendonca J. (as he then was) on 13th

December, 1999. The Claimant

was awarded general damages of $60,000.00 for an unlawful arrest and detention for

54 hours. He was also awarded $10,000.00 as aggravated damages.

b. Kowlessar v The Attorney General of Trinidad and Tobago (HCA 350 of 1997) –

delivered by Tam J. on 8th

October, 2001. The Claimant was awarded $38,000.00

inclusive of aggravated damages for false imprisonment for 2 days.

c. Barcoo v The Attorney General of Trinidad and Tobago (HCA 1388 of 1989) -

delivered by Mendonca J (as he then was) on 19th

December, 2001. The Claimant

was awarded $75,000.00 inclusive of aggravated damages for false imprisonment for

5 days and malicious prosecution.

d. Mc Kenna v The Attorney General of Trinidad and Tobago & Another

(CV2006-03114) – delivered by Stollmeyer J. (as he then was) on 17th

April,

2008. The Claimant was awarded $40,000.00 inclusive of aggravated damages for

false imprisonment for 3 days and malicious prosecution.

e. Mitchell v The Attorney General of Trinidad and Tobago and Another

(CV2007-03220) – delivered by Jones J (as she then was) on 12th

June, 2008. The

Claimant in this matter was awarded $100,000.00 in general damages for wrongful

arrest and false imprisonment. The Claimant was arrested and detained for 2 days and

7 ½ hours on the mistaken belief that there was a warrant for his arrest.

f. Koon Koon v The Attorney General of Trinidad and Tobago (CV2007-02192) –

delivered by Kokaram J. on 4th

July, 2010. The Claimant in this matter was

awarded $35,000.00 in general damages including aggravated damages for false

imprisonment and wrongful detention for 2 days;

g. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695) - delivered

by Rajkumar J on 20th

March, 2014. The Claimant was awarded $45,000.00 in

general damages for false imprisonment for 24 hours.

190. I have also taken into consideration the following case not cited by either party:

a. Richardson & Alleyne v The Attorney General of Trinidad and Tobago (CV

2007 – 2686) - delivered by Dean-Armorer J, on 8th

January, 2013. The Claimants

of 81

were awarded $40,000.00 each inclusive of aggravated damages for false

imprisonment for approximately 2 days.

191. Having regard to the trend seen in the awards of general and aggravated damages in the

aforementioned cases, and bearing in mind the length of their detention combined with the

condition of the cells in which they were incarcerated as found above, this Court is of the

view that the Claimants should be awarded the sum of $50,000.00 each as general damages

inclusive of an uplift for aggravated damages in respect of their unlawful detention for the

period of 49 ½ hours.

Analysis and Findings – General and Aggravated Damages [Assault & Battery]



Counsel that the Claimants’ claim for assault and battery should be dismissed. 54

In the

Defendant’s Propositions of Law filed on 31st October, 2013, Counsel submitted that if the

Court were to rule in favour of the Claimants and find that they were assaulted and battered,

a reasonable award for general damages including aggravated damages should be within the

following ranges for each Claimant:55

a. First Claimant - $20,000.00 to $35,000.00;

b. Second Claimant - $15,000.00 to $30,000.00; and

c. Third Claimant - $10,000.00 to $20,000.00.

193. Counsel for the Defendant suggested that the Court should be guided by the awards made

in following authorities:

a. Dalsingh v Knight (S1035/1975)

b. John & John v Solomon (HC 150/1987)

c. Samuel v TELCO (S431/1970; 1262/1970);

d. Wilson v Super-Mix Feeds (3809/1983); and

e. Campo v The Attorney General of Trinidad and Tobago & Another (CV2008-00044).



Law filed on 7th

May, 2012, it was submitted that an award in the following amounts should

54

Para. 137. 55

Paras. 89 to 92.

of 81

be made to each Claimant in respect of general damages inclusive of an uplift for aggravated

damages for assault and battery:56

a. First Claimant - $45,000.00;

b. Second Claimant - $50,000.00; and

c. Third Claimant - $40,000.00.

195. The Claimants relied on the following authorities:

a. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695);

b. Superville v The Attorney General of Trinidad and Tobago (CV2011-01152);

c. Bernadine v The Attorney General of Trinidad and Tobago (CV2010-02956); and

d. Goring v The Attorney General of Trinidad and Tobago (CV2010-03643);

196. Having already determined that the Claimants were unlawfully assaulted and battered, I

find that they are entitled to general damages including aggravated damages for the injuries

they sustained. In the determination of an appropriate award of damages under this head, I

have reviewed the authorities submitted by the parties and the Court bears in mind the

guidance provided by the Privy Council in Seepersad v Persad & Capital Insurance

Limited:57

“The Board entertain some reservations about the usefulness of resort to awards of

damages in cases decided a number of years ago, with the accompanying need to

extrapolate the amounts awarded into modern values. It is an inexact science and one

which should be exercised with some caution, the more so when it is important to ensure

that in comparing awards of damages for physical injuries one is comparing like with

like. The methodology of using comparisons is sound, but when they are of some antiquity

such comparisons can do no more than demonstrate a trend in very rough and general

terms.”

197. The cases relied on by the Defendant, as a guide to an award under this head of damages,

with the exception of one, were of some antiquity and as such they offered minimal guidance

to the court in making its award. Accordingly, on the authority of Seepersad(supra), this

Court is not inclined to rely on cases decided in excess of thirty (30) years ago.

56

Claimants’ Closing Submissions at Page 55; Claimants’ Propositions of Law at Para. 39. 57

Privy Council Appeal No. 86 of 2002 paragraph 15

of 81

198. Accordingly, I have found the following cases to be relevant and useful:

a. Goring v The Attorney General of Trinidad and Tobago (CV2010-03643) –

delivered by Rajkumar J. on 3rd

August, 2011. The Claimant was awarded general

damages inclusive of aggravated damages for assault and battery in the sum of

$100,000.00. Therein, the Claimant allegedly suffered facial lacerations, welt marks

about his body, tenderness, swelling and haematomas about the body, severe face and

head swelling as well as soft tissue injury.

b. Superville v The Attorney General of Trinidad and Tobago (CV2011-01152)

delivered by Master Alexander on 20th

May, 2013. The Claimant was awarded

general damages of $65,000.00 for assault and battery. He was diagnosed as

sustaining soft tissue injuries. His specific injuries included lacerations to his face and

body, welt marks and bruises about the body, swelling and tenderness to several areas

of the body as well as extensive scarring.

c. Bernadine v The Attorney General of Trinidad and Tobago (CV2010-02956) –

delivered by Rajkumar J. on 2nd

October, 2013. The Claimant was awarded

general damages inclusive of aggravated damages for assault and battery in the sum

of $55,000.00. The Claimant suffered soft tissue injuries for the most part along with

a laceration to the right eyebrow and ecchymoses of the right eye.

d. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695) – delivered

by Rajkumar J. on 20th

March, 2014. The Claimant was awarded general damages

inclusive of aggravated damages for assault and battery in the sum of $55,000.00. The

Claimant suffered several abrasions, tenderness and swelling to the areas about the

body including the face, head, shoulder, arm and elbow.

199. The Claimants did not give evidence of any resulting disability, loss of earning capacity

or loss of amenities as a consequence of their injuries. Accordingly, taking into account the

recent trend in awards of general damages in the aforementioned cases, I accept the

submission of Counsel for the Claimants and make the following awards of general damages,

inclusive of an uplift for aggravated damages, to the Claimants for the injuries they sustained

and the associated pain and suffering they endured:

a. First Claimant - $45,000.00;

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b. Second Claimant - $50,000.00; and

c. Third Claimant - $40,000.00.

EXEMPLARY DAMAGES

The Law

200. According to the House of Lords in Rookes v Barnard:58

“Exemplary damages are essentially different from ordinary, damages. The object of

damages in the usual sense of the term is to compensate. The object of exemplary

damages is to punish and deter…”59

201. Further in Kuddus v Chief Constable of Leceistershire60

it was established that

exemplary damages were to be awarded in the following circumstances:

“(a) The awards for compensatory damages are perceived as inadequate to achieve a

just result between the parties.

(b) The nature of the defendant’s conduct calls for a further response for the courts.

(c) The conscious wrongdoings by a defendant is so outrageous that something more is

needed to show that the law will not tolerate such behaviour.

(d) Without an award of exemplary damages justice will not be done otherwise.

(e) It is usually a last resort to fill a “regrettable lacuna”.”

202. In Merrick (supra) Smith JA stated as follows at para 42:

“42. Since the decision in Rookes v Barnard [1964] A.C. 1129 it is accepted that

exemplary damages can be awarded in three types of cases, namely:

(a) Where this is authorised by statute;

(b) Where the tortfeasor’s conduct has been calculated by him to make a profit for

himself which may well exceed the compensation payable to the innocent party;

or

58

(1964) AC 1129 59

Ibid at page 1221. 60

[(2002) AC 122 at para 63

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(c) Where there has been arbitrary, oppressive or unconstitutional action by

servants of the State.

This position has been repeatedly accepted in the courts of Trinidad and Tobago and I

see no reason to change it.”

Analysis and Findings – Exemplary Damages



Counsel that the Claimants’ claim for assault and battery should be dismissed and their arrest

and continued detention were lawful and further, any aggravating features of the arrest as

claimed were unreliable when tested against the evidence. 61

204. In the Defendant’s Propositions of Law filed on 31st October, 2013, Counsel submitted

that if the Court were to rule in favour of the Claimants in relation to an award of exemplary

damages, a reasonable award would be $20,000.00 to each Claimant. 62

Counsel relied on the

following authorities:

a. Bartholomew v The Attorney General of Trinidad and Tobago (CV2009-04755);

b. Toney v The Attorney General of Trinidad and Tobago (CV2010-00513);

c. St. Rose v The Attorney General of Trinidad and Tobago (CV2009-004756); and

d. King v The Attorney General of Trinidad and Tobago (CV2009-04757).



Law filed on 7th

May, 2012, it was submitted that this case was appropriate for an award of

exemplary damages as the police abused their powers and the Claimants suffered brutal,

sadistic and oppressive treatment at their hands. It was submitted that an award of at least

$90,000.00 should be made to each Claimant.63

The Claimants relied on the following

authorities:

a. Wallace v The Attorney General of Trinidad and Tobago (CV2008-04009);

b. Goring v The Attorney General of Trinidad and Tobago (CV2010-03643);

c. Bernadine v The Attorney General of Trinidad and Tobago (CV2010-02956); and

d. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695).

61

Paras. 137 - 139. 62

Para. 96. 63

Claimants’ Closing Submissions at Page 58; Claimants’ Propositions of Law at Para. 45.

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206. In consideration of the evidence adduced and in application of the relevant legal

principles, I find that the conduct of the police officers at the Station was arbitrary,

oppressive and unconstitutional. The Claimants were subjected to horrific treatment by the

Police while in custody at the Station, which included threats to kill them, severe beatings by

the officers and shocks to their wet bodies with an electric taser which, in my opinion,

amounted to torture. The conduct of the officers was most reprehensible and deserving of

harsh criticism by this Court. In a society where every citizen has a fundamental right to life,

liberty, security of the person and the right not to be deprived thereof except by due process

of law, it is shocking and distressing for this Court to have heard from the Claimants the

terrible ordeal that they were made to endure at the hands of members of the police service

whose motto is “to protect and serve.” In the circumstances, I am of the opinion that an

award of exemplary damages is appropriate in this matter.

207. I have found all the authorities cited by the parties in relation to the determination of an

appropriate award of exemplary damages, to be relevant and helpful.

a. Bartholomew, Frankie, J; Toney, Terrell; St. Rose, Randy; King, Leon v The

Attorney General of Trinidad and Tobago (H.C.4755/2009. CV.2009-04755.

H.C.513/2010. CV.2010-00513. H.C.4756/2009. CV.2009-004756. H.C.4757/2009.

CV.2009-04757.) – delivered by Jones J (as she then was) on 13th

January, 2011.

The Claimants in these cases (which were all heard together as they arose out of the

same incident), were awarded $20,000.00 in exemplary damages. Jones J (as she then

was) found that the Claimants, who were at the material time prisoners in a holding

cell at the Port of Spain Magistrates Court, suffered injuries as a result of extreme and

deliberate force on the part of the police. She also concluded that given the

Defendant’s admission of battery and failure to establish self-defence, the Claimants

case succeeded and they were entitled to general damages including aggravated

damages and also exemplary damages.

b. Wallace v The Attorney General of Trinidad and Tobago (CV2008-04009) –

delivered by this Court on 2nd

October, 2009. The Claimant in this matter was

awarded $70,000.00 in exemplary damages for assault and battery. The court stated

that this award was made:

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“64. …to reinforce this Court’s condemnation of the inhuman treatment meted

out to the Claimant by these prison officers and to deter the officers concerned

and others from repeating such conduct.”

c. Goring v The Attorney General of Trinidad and Tobago (CV2010-03643) –

delivered by Rajkumar J. on 3rd

August, 2011. The Claimant in this matter was

awarded $100,000.00 in exemplary damages for assault and battery. In this incident

the Claimant was a prisoner and was subjected to a brutal assault by several officers.

Therein Rajkumar J. stated as follows:

“2. With respect to the exemplary aspect of the case, I think first of all this is a

case where exemplary damages must be awarded. The facts and circumstances

detailed herein must attract the strongest possible statement of condemnation.

One of the hallmarks of this case is the repeated nature of the assaults on the

claimant…

4. No court can ignore allegations such as those made by this claimant. The

assaults he described are no different in effect from torture, and whether you call

it assault or torture in this case doesn’t change the nature of the actions that took

place…”

d. Bernadine v The Attorney General of Trinidad and Tobago (CV2010-02956) –

delivered by Rajkumar J. on 2nd

October, 2013. The Claimant in this matter was

awarded $90,000.00 in exemplary damages. In giving judgment, Rajkamur J. found

that on the circumstances of this case, exemplary damages ought to be awarded on the

following basis:

“84. … (i) The fact that the unlawful battery of the claimant was compounded by

his detention and his ordeal being prolonged by a show of investigating the

circumstances surrounding the imaginary passenger with the gun, and the farce

of searching for arms and ammunition as a result. (ii) The urgent need to deter

such conduct before there is loss of life.”

e. Ali v The Attorney General of Trinidad and Tobago (CV2012-02695) – delivered

by Rajkumar J. on 20th

March, 2014. The Claimant was awarded exemplary

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damages of $90,000.00. In this matter the Claimant was falsely imprisoned for 24

hours and assaulted by officers during his detention. Rajkumar J stated as follows:

“204. In the instant case the quantum of the compensatory aspect of the damages,

including the matters in aggravation has been taken into account. The balancing

act, preserving the need for moderation, with the need to send a message of

deterrence, may yet be accomplished by an award of exemplary damages, in this

case of $90,000.00. This is $10,000.00 less than the award of this court in

Goring. The quantum of exemplary damages required to achieve the purpose of

exemplary damages, in particular, deterrence, is accordingly set at $90,000.00...”

208. Taking these authorities into consideration, this Court is of the view that each Claimant

should be awarded the sum of $100,000.00 as exemplary damages.

INTEREST

209. It is my opinion that the Claimants are entitled to interest on the award of general

damages for false imprisonment and assault at a rate of 6% per annum from the date of the

filing of this Claim, 16th

November, 2011, to the date of judgment, 29th

June, 2015.

210. Further, the First Claimant is entitled to interest on the award of special damages of

$1,200.00 for the conversion of his cellular phone at a rate of 6% per annum from 14th

March, 2010 to the date of judgment, 29th

June, 2015 and on the awards of nominal damages

of $20,000.00 for the conversion of the Sentra and loss of use at a rate of 6% per annum from

16th

June, 2010 to the date of judgment, 29th

June, 2015. The Second and Third Claimants are

also entitled to interest on the award of special damages of $500.00 and $600.00 respectively,

at a rate of 6% per annum from March 14, 2010 to the date of judgment, 29th

June, 2015.

COSTS

211. In my opinion, the Claimants are entitled to an award of costs to be determined in

accordance with Rule 67.5 of the Civil Proceedings Rules 1998 (as amended). This Rule

provides that the costs payable should be based on the value of the claim which in the case of

a Claimant is the amount agreed or ordered to be paid. Therefore, the Defendant is to pay to

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the Claimants costs to be determined in accordance with Appendix B and based on the

amounts awarded, inclusive of interest.64

THE ORDER

212. In consideration of the aforementioned, it is hereby ordered as follows:

a. That the Defendant do pay to the Claimants special damages for conversion as

follows:

i. First Claimant - $21,200.00;

ii. Second Claimant - $500.00; and

iii. Third Claimant - $600.00.

b. That the Defendant do pay to each of the Claimants general damages, inclusive of

aggravated damages, for false imprisonment the amount of $50,000.00;

c. That the Defendant do pay the Claimants general damages, inclusive of

aggravated damages, for assault and battery as follows;

i. First Claimant - $45,000.00;

ii. Second Claimant - $50,000.00; and

iii. Third Claimant - $40,000.00.

d. That the Defendant do pay to each of the Claimants exemplary damages in the

amount of $100,000.00;

e. That the Defendant do pay to the Claimants interest on the special damages as

follows:

i. First Claimant – Interest on the amount of $1,200.00 at a rate of 6%

per annum from 14th

March, 2010 to 29th

June, 2015 and on the award

of nominal damages of $20,000.00 at a rate of 6% per annum from

16th

June, 2010 to 29th

June, 2015;

ii. Second Claimant – Interest on the amount of $500.00 at a rate of 6%

per annum from March 14, 2010 to 29th

June, 2015; and

iii. Third Claimant – Interest on the amount of $600.00 at a rate of 6% per

annum from March 14, 2010 to 29th

June, 2015.

64

Leriche v Maurice – PCA No. 25 of 2004.

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f. That the Defendant do pay to the Claimants interest on the general damages at a

rate of 6% per annum from the date of the filing of this Claim, 16th

November,

2011 to the date of judgment, 29th

June, 2015; and

g. That the Defendant do pay to the Claimants costs based on the amount ordered to

be paid inclusive of interest pursuant to Rule 67.5 of the Civil Proceedings Rules

1998 (as amended).

Dated this 29th

day of June, 2015

……………………………………

Andre des Vignes

Judge

THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT...

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