Belfonte v Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Sharma, C.J.
• Judgment Date: 03 June 2005
• Neutral Citation: TT 2005 CA 24
• Docket Number: Civ. App. 84 of 2004
• Court: Court of Appeal (Trinidad and Tobago)
• Date: 03 June 2005

Court of Appeal

Sharma, C.J.; Warner, J.A.; Archie, J.A.

Civ. App. 84 of 2004

Belfonte

and

Attorney General of Trinidad and Tobago

Appearances:

Dr. F. Ramsahoye, S.C. and Mr. A Ramlogan for the appellant

Mr. T Thorne and Ms. Seenath for the respondent

Constitutional law - Right to retain and instruct legal counsel — Parellel remedy — Dismissal of claim — Appeal — Appellant arrested and not informed of right to retain and instruct legal counsel — Constitutional motion dismissed and appellant appealing — Whether appellant failing to utilize parallel remedy in tort — Constitution, s. 5(2) — Protected right to retain and instruct counsel — Undisputed breach of appellant's constitutional right justifying action begun by originating motion — Appeal allowed.

Sharma, C.J.

1 (1) Introduction: This appeal is against the decision of a trial judge made on 11th June 2004 which held firstly that, in the circumstances of this case, Damian Belfonte (the appellant) had no constitutional right to be informed of his right to retain and instruct counsel and secondly that there was an abuse of process due to the appellant's failure to pursue a civil action for the torts of unlawful arrest, false imprisonment and trespass to the person.

2 (2) The main issues for determination on this appeal are whether the appellant had a right to be informed of his right to counsel upon arrest for non-payment of fines and whether the appellant should be denied relief in bringing an originating motion against the State (the respondent) pursuant to section 14 of the Constitution (for breach of fundamental human rights) by virtue of there being a parallel remedy in private law.

Background

3 (3) The appellant filed a constitutional motion against the respondent on 21st June 1999 seeking relief for breaches of his fundamental rights while incarcerated during the period 3rd November 1998 to 25th November 1998.

4 (4) The appellant was arrested on 3rd November 1998 for the non-payment of fines arising out of narcotic offences previously committed. The fines amounting in one instance to a balance of $350.00 and in another instance to $800.00, remained unpaid despite the fact that the appellant had secured a banker's cheque for the Clerk of the Peace in the sum of $1,150.00. An Officer Brown held the cheque for one (1) year and the money was never paid to the Court, unknown to the appellant. While the cheque was in the Officer's possession, the appellant was arrested and imprisoned by other officers. The appellant was eventually released after his mother retrieved the cheque from Officer Brown and paid the outstanding fines.

5 (5) At the trial, Officer Brown denied ever having received a cheque from the appellant. The appellant challenged his arrest, detention, and/or imprisonment by servants of the respondent from 3rd November 1998 to 25th November 1998. The appellant claimed he had been arrested without being informed of his right to retain an attorney. The undisputed or unchallenged issue in the Court below however, was that the appellant during his imprisonment at the Port-of-Spain prison, had his Rastafarian ‘dreadlocks’ shorn off against his will and was subjected to a meat diet which was contrary to his religious beliefs and practices.

(See table at Appendix I for details of disputed and undisputed facts).

Findings of the Trial Judge

6 (6) The findings of the trial judge (not challenged in this appeal) were as follows:

• (i) The appellant was lawfully arrested on 3rd November 1998 under a valid warrant for non-payment of fines.

• (ii) None of the arresting police officers had informed the appellant of his right to retain Counsel; (See page 10 of Judgment of Tiwary-Reddy, J. dated 11 ^th June 2004).

• (iii) The above notwithstanding, based on [Raiesh Ramsarran v. AG] (Civ. App. No. 108 of 2000) there was no breach of the appellant's right to be informed of his right to consult an attorney upon his arrest, in the circumstances of this case. (See page 11 of Judgment of Tiwary-Reddy dated 11 ^th June 2004).

• (iv) The unchallenged evidence was that the appellant suffered while in prison the removal of his “dread locks” hair against his will. He was beaten and also deprived of his vegetarian diet. These actions denied the appellant his fundamental right to security of the person and freedom of conscience and religious beliefs.

• (v) Parallel remedies in tort such as assault and battery, were also associated with these unlawful acts.

• (vi) On the basis of [Jaroo v. AG] (PC No. 54 of 2000), the appellant should have made use of the available common law procedure rather than pursue constitutional proceedings which were only to be invoked in exceptional circumstances, and therefore the proceedings were an abuse of process.

7 (7) The motion was therefore dismissed with costs.

Issues on Appeal

Breach of fundamental rights

Issues on Appeal

8 (8) On the first issue, the primary finding by the trial judge was that the appellant was never informed of his right to consult an attorney upon arrest. She observed:

“I find it passing strange that the Applicant is suddenly taken into custody while he is ostensibly selling handbags in the centre of the town of Sangre Grande and would not ask to contact a family member or relative or friend, when he is offered such an opportunity. I do not accept that any of the police officers told the Applicant of these rights at any time after his arrest.” (See page 10 of Judgment of Tiwary-Reddy, J. dated 11th June 2004).

However, basing her reasoning on the authority of [Rajesh Ramsarran v. The Attorney General], (Civ. App. No. 108 of 2000), the learned judge decided that the appellant's right to consult an attorney had not been breached. In that case the local Court of Appeal held that the rights under consideration protected by the Constitution were confined to the pretrial stage only.

9 (9) By Privy Council Appeal No.18 of 2004, the [Ramsarran] judgment was reversed so that it is now law that a person's fundamental human rights are breached when he is not informed of his right to consult an attorney upon arrest. It was there confirmed that the same rights (to consult) are enjoyed by a person arrested for the non-payment of a fine. The Board rejected the view that section 5(2) (c) of the Constitution was designed only for persons arrested or detained during an investigation. Section 5 (2) reads:

• “5 (2) Without prejudice to sub-section 1, but subject to this Chapter and to section 54, Parliament may not:

  deprive a person who has been arrested or detained:

  of the right to be informed promptly and with sufficient particularity of the reason for his arrest or detention;

  of the right to retain and instruct without delay, a legal adviser of his own choice and to hold communication with him.”

The opinion of the Board was that an examination of previous decisions such as [Maharaj v AG] ((No.2), [1979] AC 385), [Thornhill v AG] ([1981] AC 61), and [AG v. Whiteman] ([1991] 2 AC 240), confirmed that it was the right of a person arrested on suspicion of having committed a criminal offence, to retain and instruct a legal advisor and to hold communication with him. This right was protected by the Constitution, both on a proper construction of section 5(2) (c) and on the basis of settled practice embodied in the Judges’ Rules. (See page 5 of Privy Council Judgment in [Ramsarran v. AG], No. 18 of 2000).

10 (10) According to the Board in the [Ramsarran] case, the purpose of Constitutional protection was to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence, have an effective and practical means of securing their release as soon as possible. Their Lordships there reasoned:

“… If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for the payment of the fine and could have made a speedy habeas corpus application, if this did not secure the appellant's early release.” (Paragraph 11 of Privy Council Judgment in [Ramsarran v. AG], No. 18 of 2000).

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

The learned judge therefore erred in finding that the appellant's right to be informed of his right to counsel was not infringed.

Abuse of Process

11 (11) The second issue questions the right of the appellant to proceed by way of originating motion under Section 14 of the Constitution. It is the appellant's contention that there is a right to proceed by originating motion under section 14 of the Constitution and to secure redress where an applicant can prove a contravention or breach of his fundamental rights. This right is an entrenched Constitutional right and subsists despite the availability of any other remedy. (See page 10 of the Appellant's Skeleton Arguments dated and filed 21 ^st March 2005).

12 (12) In [Jaroo v. AG], the Board made the point that the right to apply to the High Court under section 14(1) of the Constitution should be exercised only in exceptional circumstances where a parallel remedy exists. There the Board repeated the warning by Lord Diplock in [Harrikissoon v. AG] ([1980] AC 265, 268) that the mere allegation that a human right or fundamental freedom of the applicant has...