Daniel v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jones, J.A.
• Judgment Date: 12 July 2016
• Neutral Citation: TT 2016 CA 30
• Docket Number: Civil Appeal No. 87 of 2011, CV 2009-00398
• Date: 12 July 2016

Court of Appeal

Mendonça, J.A.; Moosai, J.A.; Jones, J.A.

Civil Appeal No. 87 of 2011, CV 2009-00398

Daniel

and

The Attorney General

Appearances:

Mr. G. Ramdeen instructed by Ms. S. Ramkissoon-Mark for the appellant.

Mr. N. Byam instructed by Mr. B. James for the respondent.

Civil Practice and Procedure - Appeal from the decision of the judge dismissing the appellant's claim for redress pursuant to sections 4(a), (b) and 5(2)(h) of the Constitution — Appeal against the decision of the judge to dismiss the Appellant's application to strike out certain paragraphs of the affidavits of the prison officers in relation to the established practice in the remand prison when dealing with withdrawals of appeals — Whether the appellant's right to due process and protection of the law had been breached — Whether the appellant had been deprived of his liberty by the late delivery of his notice of withdrawal — Whether the appellant's continued detention when he first sought to withdraw his appeal and when he was released from prison was a denial of his liberty — Whether the conduct of the appellant in pursuing this constitutional claim in light of his earlier false imprisonment action was an abuse of the process of the court.

I have read the Judgment of Jones, J.A. and I agree with it.

A. Mendonça

Justice of Appeal

I too agree.

P. Moosai

Justice of Appeal

Jones, J.A.

1 This is an appeal from the decision of the trial judge dismissing the appellant's claim for redress pursuant to sections 4(a), (b) and 5 (2)(h) of the Constitution. In essence the appellant challenges the delay of the prison authority in delivering a notice of withdrawal of his appeal to the Registrar of the Supreme Court and alleges that as a result his constitutional rights have been breached.

2 By a fixed date claim filed in February 2009 the appellant sought declarations that:

• (a) the failure and or neglect and/or omission of the State more particularly the Commissioner of Prisons, his servants or agents to provide him with a form for the withdrawal of his appeal on 25th May 2007 when he gave oral notice of appeal was in breach of his right to due process and protection of the law as guaranteed under sections 4(a), (b) and 5(2)(h) of the Constitution;

• (b) the failure and/or neglect and/or omission of the State more particularly the Commissioner of Police, his servants or agents to transmit to the Registrar of the Supreme Court his notice of withdrawal dated the 28th May 2007 on or before the 28th May 2007 was unconstitutional and in breach of his fundamental rights as guaranteed and enshrined under section 4(a),(b) and 5(2)(h) of the Constitution; and

• (c) his detention from 25th May 2007 until 8th June 2007 was unlawful and unconstitutional and in breach of his fundamental rights not to be deprived of his liberty except by due process of law.

The appellant also sought monetary compensation including aggravated and exemplary damages.

3 The trial judge dismissed the fixed date claim and ordered that the appellant pay the respondent 75% of his costs. In dismissing the claim the judge found, inter alia, that there was a contradiction in the facts before her that made the claim unsuitable for constitutional relief. We do not agree with the judge in this regard. In our opinion the facts were not in dispute. These facts are contained in the affidavit of the appellant filed in support of the fixed date claim and two affidavits filed on behalf of the respondent. There were no affidavits in reply nor was there cross-examination of the deponents on their affidavits.

THE FACTS

4 On 26th April 2004 the appellant was convicted of the offence of armed robbery and was sentenced to 4 years hard labour. He appealed his sentence. Pursuant to section 128A of the Summary Courts Act Chap 4:20 once an appeal is pending an appellant in custody shall be treated in like manner as a defendant in custody awaiting trial. As a result of his appeal therefore the appellant was incarcerated with other remand prisoners at the Remand Yard at the Golden Grove Prison.

5 During the period of his incarceration the appellant came to the conclusion that had he not appealed he would have been entitled to have his sentence remitted and would have been released on 26th December 2006. With that in mind, and with the expectation of being released, on Friday 25th May 2007, he says, he informed a prison officer of his intention to withdraw the appeal and asked to be provided with the requisite forms. He did not identify the prison officer, provide any means by which this prison officer could be identified or disclose the time when his request was made. According to the appellant he was advised by that prison officer, for reasons not relevant to this appeal, that he would have to wait until the following Monday to withdraw his appeal.

6 On 28th May 2007, the Monday following, he requested and was provided with the relevant forms by another prison officer. On that day he filled out, signed and returned the completed forms to the prison authorities for transmission to the Court of Appeal. Sometime afterwards, the appellant does not disclose exactly when, he was removed from the remand yard at the Golden Grove Prison and taken to the Port of Spain Prison where he joined other convicted prisoners.

7 Despite the withdrawal of the appeal the appellant remained in prison until 8th June 2007 when he was released pursuant to a Writ of habeas corpus issued by the High Court on 1st June 2007. The appellant provides no explanation for the delay between his obtaining the order for the issue the Writ on 1st June 2007 and the order for his release on 8th June 2007.

8 According to the appellant the notice of withdrawal, signed by him and delivered to the prison authorities on 28th May 2007, was only received by the Clerk of Appeals on 6th June 2007. The notice was only directed to be forwarded to the Clerk of Appeals on the 31st May 2007 and only dispatched from the prison on the 1st June 2007. These facts are not disputed by the respondent and are consistent with the information contained on the notice of withdrawal.

9 In 2007 the appellant filed a second action in the High Court arising from his incarceration. This time his claim was against the Attorney General and the Commission of Prisons for false imprisonment. The judge found that this claim was for damages and all consequential loss suffered by him for false imprisonment for the period 28th May 2007 until 8th June 2007; aggravated and exemplary damages and special damages for loss of earnings during the period 28th May 2007 and 8th June 2007. This finding has not been challenged.

10 The appellant obtained leave to enter judgment against the Commissioner of Prisons and the Attorney General in the false imprisonment proceedings and for his damages to be assessed. On the assessment of damages the appellant was awarded the sum of $42,500.00 in damages and the sum of $11, 275.00 in costs by way of a consent order entered into with the State. According to the appellant this sum represented damages for his detention from 6th to 8th June.

11 The affidavits filed on behalf of the respondent in opposition to the appellant's evidence were by two prison officers of 25 and 13 years experience in the prison service respectively. They were both on duty in the reception area of the prison on 25th May. Their evidence primarily addressed the established practice adopted by the prison authority with respect to the withdrawal of appeals.

12 According to that evidence an inmate wishing to withdraw his appeal first indicates this intention to a prison officer who then, as soon as is practicable, escorts the inmate to the reception area. At the reception area the notice of withdrawal is filled out and the inmate required to sign. Once the inmate signs two things happen. As a result of his immediate classification as a prisoner arrangements are made for his transport to the Port of Spain prison for further processing and the forms are sent to the warrants section at the Maximum Security Prison.

13 The prison officers do not deny the evidence of the appellant as to what occurred on 25th and 28th May. They merely confirm that the appellant was not brought to the reception area on the 25th May. Further, by setting out the procedure followed by the prison authority in the case of a withdrawal of a notice of appeal, they provide the context for the appellant's evidence as to what occurred on 28th May. This context was not challenged by the appellant by way of an affidavit in reply.

14 During the course of the hearing, at the stage of written submissions, the appellant sought to have certain paragraphs in the affidavits of the prison officers struck out on the grounds that no proper foundation had been laid for the receipt of the evidence. The paragraphs sought to be struck out deal with what the officers said was the established practice in the remand prison when dealing with withdrawals of appeals and the fact that the appellant was not brought to the reception area on the 25th May. The trial judge did not strike out the paragraphs. The appellant has in this appeal also challenged the judge's dismissal of that application.

15 We find that the judge was correct in her refusal to strike out the paragraphs. In our opinion the evidence was admissible. The basis of the submission before the trial judge and before us is that the evidence falls contrary to Part 31.3(1) of the Civil Proceedings Rules 1998 as amended (“the CPR”). Part 31.3(1) of the CPR provides that as a general rule an affidavit may only contain such facts as the deponent is able to prove from his own knowledge.

16 The evidence of the prison officers was they were both assigned to the reception area of the prison on 25th May 2007. Both officers depose to the fact that one of their duties is the filling out of...