Alexis Carriere v Attorney General Of The Commonwealth Of Dominica

EASTERN CARIBBEAN SUPREME COURT COMMONWEALTH OF DOMINICA IN THE HIGH COURT OF JUSTICE CLAIM NO. DOMHCV2D14/DD57 BETWEEN:

[1]ALEXIS CARRIERE

[2]KENDELL SYLVESTER

[3]FERDINAND PHILLIP DANIEL Claimants And [1] A DORNEY GENERAL OF THE COMMONWEALTH OF DOMINICA Defendant Appearances: Mr. Wayne Norde and Bernadette Lambert of Norde and Lambert Chambers for lhe Claimants Mrs. T ameka Hyacinth of the Attorney General Chambers for the Defendant 2014: June 13th 25th October Jrd JUDGMENNT [1] THOMAS, J.(Ag): On February 4'" 2014, the claimants filed an originating motion claiming against the Defendan' the Attorney General of the Commonwealth of Dominica (a) A declaration that their constitutional rights guaranteed to them under section 3 of the Constitution of Dominica not to be deprived of their liberty was contravened by the Police when they were detained beyond 72 hours. (b) A declaration that the charges preferred against the claimants while in unlawful custody of the police are null and void and of no effect and should be struck out (c) Damages, including aggravated and exemplary damages, compensation in Public Law for the unlawful detention beyond 72 hrs of detention. (d) Such further or other relief as may be just (e) Prescribed costs. [2] Based on the affidavit evidence in support1 and affidavit in reply.' the claimants being detained for more than 72 hours before being taken before a court of law were a violation of the claimants' constitutional rights. [3] The affiant, John Carbon of the Commonwealth of Dominica Police Force, deposed at paragraph 15 of his effidavit in reply deposes that: "The detention of the Applicants for a period beyond 72 hours was in no way malicious or capricious. The investigation in this case proceeded with all due regard to the public interest in the proper investigation of crime and as much as possible with due regard to the rights of the accused.·

[4]Accordingly, this judgment is concerned with whether the claimants are entitled to the reliefs sought with respect to the violation of their constitutional rights. In the premises submissions were ordered to be filed.

Submissions

[5]In submissions on behalf of the claimants, learned counsel cited relevant dicta from a number of cases3 and compared the awards of damages. The introduction to the operative submissions are in these tenns: "18. (d) In Mark Smith et al v The Attorney General of Antigua & Barbuda ANUHCV0521/2010 the claimants were awarded $10,000.00 each being compensatory damages and $5,000.00 being vindicatory damages, damages for breach of their fundamental right to personal liberty guaranteed under section 5 of tile Antigua and Barbuda constitution. They were unlawfully incarcerated for 143 days. Madam Justice Jennifer Remy in arriving at the amount awarded looked closely at tile Ramanoop line of cases but more partcularly at the TakHola v The Attorney General of the Bahamas 1200g1 UKPC 11 and quoted Lord Carswell who sent the appeal back to the Court of Appeal of Antigua for failure to adopt a global approach (see p..-agraph 23 of the Judgment). The Court of Appeal had mu~plied the daily amount by as many days by 8 years. 19. Lord Carswell stated inter alia that the court should determine an appropriate figure to reflect compensation for the long period of wrongful detention taking into account any element of aggravation and misery endured. They should take into account a figure which is appropriate for an initial short period, if extrapolated should be tapered and the final figure should amount to an overall sum representing appropriate compensation for a period of over 8 years taking account of inhuman conditions, misery and distress suffered. The Privy Council awarded $250.00 per day. This guided Justice Remy in awarding $15,000.00 overall for the 143 days." And tile operative submissions are as follows: "20. In the case at bar the Applicants have spent over 48 hours in unlawful detention. As in Oliveira's case they suffered no losses save and except the inconvenience pleaded. (See paragraph t 2 of their atfidavit). They should be awarded the sum of $3,000.00 each for the said 48 hours being $1500.00 per day. Simple declaratory relief will not suffice as the state would conclude that the sanction to be imposed by keeping the Applicants beyond tile constitutional period would be a statement to that effect. 21. An additional award of $250.00 per day would also act as a deterrent to tile conduct of the police who simply stated upon complaint made by the Applicants that 'weekends do not counf." The submissions on behalf of the defendant are based on the principle that the award of compensation with respect to tile violation of constitutional right is a matier is vested in tile court and it depends on the circumstances. In this regard reliance is placed on the following dictum of Lord Kerr in James v Attorney General of Trinidad and Tobago4, including the following: "4.The very least that these statements make obvious is tllat tllere will be cases where tile vindication of the constitutional right will be achieved by tile making of a declaration. Where there has been no major impact on the claimant. a declaration is more likely than notto suffice." [8[ The submissions continue in this way: "The Respondents submits that on the totality of evidence, there is no major impact to the Applicants. Consequently, this is a case where a declaration that there was a violation of the Applicanfs constitutional rights would be sufficient to vindicate the right and uphold the sanctity of the right to liberty. The Respondent asks the Court to look at not only the period of detention but also the circumstances surrounding the detention 5. The Applicants were lawfully arrested. That is not in dispute. They are charged with very serious crimes. They are charged with the importation of a substantial quantity of not only alleged cannabis but also cocaine. There is a very good arguable case against them. That is deposed to by the affidavit filed on behalf of the Respondent by Inspector John Carbon. It is true that they are innocent until proven guilty but there is public interest having criminal case tried and allowing them to answer the charges and evidence against them 6. There are no allegations of ·Inhuman treatment. torture, assault, batlery or anything of the sort. They were ensured their rights to atlorneys: they were given the opportunity to enjoy their right to silence. Further. they were taken to the Magistrate's Court as soon as was reasonably practicable. The 72 hours expired on Saturday and the Applicants were taken to court first thing Monday morning.·

[9]Based on the foregoing submissions, learned counsel for defendant is asking the court to exercise its discretion. having regard to the circumstances and facts, to grant a declaration that the applicants rights to personal liberty was breached and to decline to grant the other remedies sought. In support of this prayer a number of cases5 are cited in which there were aggravating features meriting the award of damages.

[10]In the alternative, learned counsel is asking the court to award nominal damages if it considers that damages are necessary to vindicate the right that has been infringed.

[11]As noted above, a number of reliefs are sought by the claimant and this must be considered seriatim.

Reasoning

[12]This case presented to the court is unique in that both sides agree that the detention beyond 72 hours violated the claimants right under section 3 (3) of the Constitution of the Commonweatth of Dominica had been violated by the State. The departure comes as to whether the court should award compensation, and, if so the nature of the compensation.

[13]In making the determination the court is guided by the following dicta from the case of Attorney General of Trinidad and Tobago v Siewchand Ramanoop: "When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the court may award him compensation .. An award of compensation will go some distance towards vindicating the infringed constitutional nght. How it goes will depend on the circumstances, but in pnnciple it may well not suffice. The fact that the right violated was a constitutional nght adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed lo reflect the sense of public outrage, emphasise the importance of the constitutional nght and the gravity of the breach and deter further breaches."

[14]Learned counsel for the claimants in their submissions relies on the case of Clive Oliveira' where no losses, save and except, the inconvenience was pleaded. On that premise, the contention is that the claimants should be awarded $3,000.00 each for the 48 hours being $1 ,500.00per day. The further contention that a simple declaration will not suffice.

[15]Having regard to the submissions on behalf of the defendants and other factors, the court does not consider that Clive Oliveira's case is entirely on par. For while it is true that Oliviera did not have a pending criminal charge, a perusal of the findings of fact the learned trial judge, Justice Blenman (as she then was) make the point clear. The following are extracted from paragraphs [64] and [65] of the judgment and thought prolix the points are clear: "[64] I have given careful consideration to the evidence adduced and to the very helpful submissions of both learned Counsel. For the most part, the facts are not in dispute. In any event the following represents my findings of facts in relation to the issues that have been joined: Mr. Oliviera is Guyanese national who has been living in Antigua and Barbuda for several years. At one time, he was self employed and for various periods, the relevant government department granted him work permits. He apparently ran afoul of the law in relation 1o serious sexual offences. He was charged, tried, convicted and eventually freed by the Court of Appeal. He was retried and the same sequence of events obtained. Finally, the learned Direclor of Public Prosecutions discontinued all criminal proceedings against him. It is apparent that the State was not satisfied with lhose developments and after Mr. Oliveira was released from prison, the State deported him. By the time of his cnminal trial, he had acquired property in Antigua and Barbuda and had married to a naturalised Antiguan, who was Guyanese born. His marriage is in excess of 10 years and together they have children. [65[ Having been deported. he was somehow able to acquire a new passport and returned to Antigua where he gained entJy and was given a month to remain. The circumstances under which he was able to obtain a new passport in Guyana are unclear, but it is evident that the new passport did not indicate that he had previously been deported. What is equally unclear is whether the Immigration Authorities had followed the letter of the law in deporting him in the first instance. Be that as it may, it is obvious that subsequently, the Immigration Authorities realised that Mr. Oliveira had returned to Antigua and they set about to have him repatriated to the countJy of his birth. Mr. Oliveira was determined to remain in Antigua and Barbuda and the Immigration Authorities were determined to send him home. The Immigration Authorities visited his home and took him into custody.

He was detained for five days."

[16]In a word. the claimants' case pales in comparison with Clive Oliveira's case. The court also takes into account the fact. as submitted, that the material time of the detention was over a weekend which must be placed in the context of our jurisdiction and the operation of our courts at all levels. This was a major factor considered by the Privy Council in Pratt and Morgan 6 and although the context is different the critical factor was the weight of criminal trials against the available resources. Another factor is the nature of the operation carried out and what is alleged to have been found. The extrapolation in this context can be infinite.

[17]The foregoing gives credence to the submissions on behalf of the defendant that the court should either make a declaration or make and award of nominal compensation.

[18]In private law, one circumstance in which nominal damages may be awarded is where the claimant has suffered wrong but no damage' the court will apply that principle to this case as the common ground on the facts fits into the legal metrix of nominal compensation coupled with the declaration. In this context the court has not lost sight of the tact that the claimants face serious criminal charges but at the same time the presumption of innocence prevails. Nor can the detention beyond 72 hours be considered 'aggravation and misery endured' as there is no such evidence.

[19]Accordingly, the court hereby declares that the detention violated the claimants' constitutional rights under section 3 of the Constitution of the Cornmonweaijh of Dominica, the claimants are awarded nominal damages of $500.00 each. In the circumstances the court agrees 1learie Constatine v Imperial Hotel; See also McGregor on Damages J61tl ed. para 423 with the submissions on behalf of the defendant that no award of compensation is merited in law. (20( The court notes that the prayer seeking a declaration that the charges against the claimants while they were in custody are null, void and of no legal effect be struck out has been withdrawn since the procedural law' they are in the right church but in the wrong pew- cadft questio. (21] The other relief prayed is for damages including aggravated damages, compensation in public law for the unlawful detention beyond 72 hours. In this regard the court can discern no submissions on behalf of the claimants, but learned counsel on behalf of the defendant submits that: 1t is settled law that aggravated and exemplary damages are not available in constitutional motions (see Affomey General of St. Christopher, Nevis and Anguilla v Reynolds {1980] AC 637; Affomey General of Trinidad and Tobago v Siewchand Ramanoop {2005] UKPC 15." (22] The court agrees entirely with the submissions and as such the prayer for aggravated and exemplary does not fall for consideration. Costs (23] The claimants are entitled to prescribed costs, unless othenwise agreed. ORDER IT IS HEREBY ORDERED as follows: 1. The claimants are awarded nominal damages of $500.00 each. 2. The prayer for aggravated and exemplary damages does not fall for consideration. 3. The claimants are entitled to prescribed costs, unless othenwise agreed. Appreciation The court wishes to express gratitude to learned counsel or both sides for very illuminating submissions which auger well for our jurisdiction. -c£/-- Justice Errol L. Thomas High Court Judge ~)

EASTERN CARIBBEAN SUPREME COURT COMMONWEALTH OF DOMINICA IN THE HIGH OF COURT CLAIM NO. DOMHCV2014/0057 BETWEEN:

[1]ALEXIS CARRIERE

[2]KENDELL SYLVESTER

[3]FERDINAND PHILLIP DANIEL Claimants And

[1]ATTORNEY GENERAL OF the COMMONWEALTH OF DOMINICA Defendant Appearances: Mr. Wayne Norde and Bernadette Lambert of Norde and Lambert Chambers for the Claimants Mrs. Tameka Hyacinth of the Attorney General Chambers for the Defendant 2014: June 13, 25 October 3 JUDGEMENT THOMAS, J. (AG. )