28 Jun 2013

Yet Another Reason Why We Need The Privy Council

Time and again, in various forms, the argument of retaining the Privy Council (“PC”) against adopting a local court of final appeal, the Caribbean Court of Justice (“CCJ”) has reared its head. For a number of reasons I am swayed on the side of retaining the PC.

Firstly, and I can’t stress this enough, the argument that a ‘bunch ah white people deciding we business’ is a load of excrement. Hot and steaming, wet excrement. Factually, the judges of the Privy Council sit in judgment not over ‘we business’ but over clarifying what the law is. Get that straight… the Privy Council only decides on matters of law, not over who’s more bad than whom or who’s richer than whom.

Then we have that tired old argument that ‘they’ (the judges of the PC) ‘doh understand we culture and we society’. Once more, and take the stick out of your ears, and eyes in this case, they don’t adjudicate on matters of ‘culture’ but on matters of law.

Then we have an argument that the PC is a ‘colonial remnant’ and has no place on ‘we’ legal system. Um, the Constitution says it does. The PC actually wants TnT to stop hanging on its coat tails but so far, the justice of the PC is reliable, timely and Über-efficient, unlike that of the Rock. It is OUR final Court of Appeal.

Take the case of Terrence Calix v the Attorney General of Trinidad and Tobago, reprinted judgment of the PC below.

JCPC 2012 0003 Judgment

Terrence Calix was arrested for robbery and rape on 6 December 1998 for a robbery and rape that happened on 26 November 1998. “He was remanded in custody. On 18 December 1998, he appeared again before the magistrates’ court. On this occasion the magistrate fixed bail but this was subject to the condition that the appellant provide a surety of some $100,000 (roughly equivalent to £10,000). He failed to provide such surety and he was again remanded in custody where he remained until his trial on 5 May 1999.”

“The trial on 5 May 1999 was a summary trial on the robbery charge only. The appellant was represented pro bono by counsel. At the close of the prosecution case an application was made for a direction of no case to answer. This was based on the fleeting and unpropitious circumstances in which the purported identification had been made and on deficiencies in the identification parade. The application succeeded. The appellant was duly acquitted of the robbery charge. Notwithstanding this and despite the fact that the evidence against him on the charge of rape was the same as that on the charge of robbery viz the identification by the same two witnesses and despite the further fact that the officer in charge of the prosecution had recommended that it be discontinued, the appellant remained in custody and stood trial on the charge of rape. On 28 August 1999, on his trial on this charge, a similar application for a direction of no case to answer was made on behalf of the appellant and, unsurprisingly, it was also granted and the appellant was acquitted of the rape charge also.”

Calix then instituted proceedings for malicious prosecution, an action in which he succeeded. However, it is important to note the example of ‘donkey logic’ used by Acting Judge Aboud, J.  It reminded me of when Volney, J went off “acting of his own accord”.

“The plaintiff remained on remand for an additional 115 days or just under four months pending the determination of the rape charge. I assessed his general damages at $38,000. In arriving at this figure I took into account the peculiar character and reputation of the plaintiff in 1998. He had been living as a homeless person in an abandoned shed, in an environment that was unhygienic and squalid. He had no toilet facilities, running water, or electricity. He refused contact with his sister who lived in premises in San Juan, and was not willing to call upon any friend or acquaintance when arrested. Notwithstanding his high school education and his training at John Donaldson Technical Institute as a machinist, he deliberately withdrew from society and the labour force at a time when employment and a better way of life was readily available. He might have been expected to know more, to do more, and to want more for himself as a free individual, and when he was on remand. He appeared without legal representation throughout every adjournment of the robbery charge, although Legal Aid was available to him. Mr Dindial first appeared amicus for him on the first day of the robbery trial. He was a recluse, choosing to live in unhygienic conditions, ekeing [sic] out a living as a scavenger of copper, when many other options must have been available to him. I marked him as an odd man. He might have been going through an irrational or unstable phase of his life, because, with his education and training, it was unreasonable to choose to live in such squalid conditions for over eight years secluded from society. Sadly, his reputation and social standing did not amount to much. Save for some unnamed friends that also scavenged on the coast, and who he nonetheless refused to contact throughout his ordeal, he appeared to have no social contact with any person.”

The physical conditions at the police station's cell and at the remand yard could not have been worse than in the abandoned shed, and I preferred Corporal Monsegue's description of the cell to that of the plaintiff. Of course, in the cell he was deprived of his liberty. But his liberty was conditional on his bail, an avenue that might have been available with his sister’s or his friends’ assistance, had he chosen to contact them. The bail might have been reduced on application, but no application was made. After the dismissal of the robbery charge, on grounds certainly to be advanced at the rape trial, the magistrate or a Judge in Chambers would very likely have reduced the bail, which was originally fixed to cover both charges. His attorney made no application while the rape charge was being prosecuted.”

In evidence the only anguish that the plaintiff admitted was that the incarceration ‘kind of bogged me down, it had me kind of uncomfortable’. He said his friends were ‘sympathetic’ to his situation after his release. Beyond these few remarks, he left his mental anxiety to be inferred by the Court. He did not say that he was shunned or treated as a pariah after his release …”

Now, I want readers to pay attention to the blue highlighted sentences above, those in italics and those in bold.

Basically, what the judge was saying, and what was upheld by the Court of Appeal, was that Terrence Calix had less standing in society because of the way he chose to live. Additionally, the Court of Appeal found that Calix was not deprived of his liberty because the grant of bail, although not accessed by Calix (matters not the reasons, Oh Rockians) was:

… that granting bail interposes a judicial act between the prosecution and the continued detention of the accused. The prosecution is no longer the cause of the deprivation of liberty.

Now comes the PC with a more enlightened reasoning, teaching local judges how to think.

Oddity of personality, even frank eccentricity does not of itself diminish the value of one’s good character./ …Being prosecuted for the extremely serious offence of rape was a substantial matter. It is something that, for a man of good character, must rank highly in terms of reputational damage.

The judge said that he took into account the “peculiar character and reputation” of the appellant in assessing damages. Peculiarity of character is not to be assimilated with reputation, of course.

That the appellant might be regarded as occupying a lowly status cannot of itself reduce the compensation to which he might otherwise be entitled. That he might have been expected “to know more, to do more, and to want more for himself as a free individual, and when he was on remand” does not appear to the Board to impinge on the question of damage to reputation.

The damage to the appellant’s reputation, judged on an objective basis, could not be influenced by considerations as to his personal circumstances. This is to be measured by reference to the fact that he was previously of good character and that he was prosecuted for the very serious offence of rape. And in so far as the reaction of those who learned of the prosecution was concerned, the fact that the appellant lived in neglected conditions or that he did not do more to improve his lot cannot logically be connected to how his reputation would be judged by those who learned that he had been prosecuted for rape. The appellant may not have been a high-ranking member of society. That does not mean that his reputation was of any less significance than that of those who were.

The judge concluded that the appellant’s reputation did not amount to much. He associated this with the appellant’s lack of social standing. For the reasons given earlier, the Board does not consider that lowly status should of itself diminish the compensation that someone should receive.

The conclusion of the judge that the appellant did not suffer much in the way of mental anguish was based on the evidence that he gave that his incarceration “kind of bogged [him] down, it had [him] kind of uncomfortable”. In light of this somewhat understated testimony, the judge felt that the appellant had left his mental anxiety to be inferred by the court. The Board considers that it was open to the judge to reach the conclusion that the appellant did not suffer significant anxiety but it observes that it is necessary to keep in mind the possibility that inarticulacy on the part of someone such as the appellant may be the reason that a more explicit claim to distress is not put forward.

The Board considers that neither the trial judge nor the Court of Appeal was correct in the approach that they took to the appellant’s claim for compensation for loss of liberty. The judge’s analysis must be presumed to proceed on the premise that, if the appellant had been remanded in custody, he would be entitled to recover damages but that those damages were to be reduced because he failed to take steps to secure his release.

A claimant’s failure to take up a grant of bail (which is the avowed basis on which the appellant should not recover compensation for loss of liberty) is not a “judicial act”.

The Board is satisfied, for the reasons earlier given, that the trial judge erred in his approach to the question of damage to the appellant’s reputation and that the Court of Appeal likewise erred in endorsing that approach. Both were also wrong in dismissing or reducing the compensation to which the appellant was entitled by reason of his loss of liberty. Quite apart from these considerations, however, the Board is satisfied, as a result of its consideration of a number of cases decided in Trinidad and Tobago, that there is a marked contrast between the award of compensation in this case and the awards in those cases. In particular, the following decisions strongly suggest that, by any standard, the amount of compensation awarded in the present case is inordinately low. In Sorzano and Mitchell v Attorney General Civ App No 101 of 2002 an award of $180,000 was made in respect of malicious prosecution which resulted in 385 days; incarceration. In Blake v Attorney General [2013] Civ 2010 03388 an award of $450,000 was made where the period of detention was some three and a half years (although it should be noted that there was some “tapering” of the award in that case in line with the observations of the Board in Takitota v Attorney General [2009] UKPC 11 and that there was an element of aggravated damages in the award). Most significantly, in Merrick v Attorney General, a decision delivered on 5 February 2013, which extensively reviewed the authorities in this area, the Court of Appeal awarded $200,000 for 36 days; detention. In that case aggravated damages formed part of the award but, even allowing for that aspect of the award, the amount of compensation in that case is strikingly divergent from the award in the present case.

Both by reason of the errors of principle in the judgments of the trial judge and the Court of Appeal and because the Board is satisfied that the award of compensation in this case was inordinately low, the award of $38,000 must be quashed.

The above are merely highlights from the judgment and it is strongly recommended to read the entire judgment and see how the PC has once again ‘tapped up’ the local judiciary for poor reasoning skills and flagrant abuse of the rule of law.

The short of it is that  a person, no matter his socio-economic standing in society, has the same reputation legally (his good name) as anyone else.

CCJ,… anyone?

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