Gabriel Joseph v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Peter A. Rajkumar JA |
| Judgment Date | 22 October 2021 |
| Neutral Citation | TT 2021 CA 50 |
| Docket Number | Claim No. CV 2010 – 04508 Claim No. CV 2010 – 4093 CA P191/2012 Claim No. CV 2010 – 04649 CA P196/2012 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
N. Bereaux JA
P.A Rajkumar JA
V. Kokaram JA
Claim No. CV 2010 – 04508
CA P192/2012
Claim No. CV 2010 – 4093
CA P191/2012
Claim No. CV 2010 – 04649
CA P196/2012
Mr. G. Ramdeen, Mr. U. Maharaj instructed by Ms. D. Harripaul for the Appellants
Ms. K. Seenath, Ms. V. Ramadhar instructed by Ms. K. Mark for the Respondent
I have read the judgment of Rajkumar JA and I agree with it.
Justice of Appeal
Nolan Bereaux
I have read the judgment of Rajkumar JA and I also agree with it.
Justice of Appeal
Vasheist Kokaram
Delivered by Peter A. Rajkumar JA
The instant appeals concern three prisoners, each allegedly representative of a class of prisoners who collectively instituted action against the State in respect of alleged assaults committed against them on November 11, 2006. The prisoners allegedly represent three different categories. Mr. Sobers represents prisoners who sustained injuries and were treated at hospital. Mr. Joseph represents a category of prisoners who sustained injuries which were treated at the prison infirmary. Mr. Wilson represents a category of prisoners who allegedly sustained injuries but who have no medical records documenting them.
The alleged injuries occurred in the course of an exercise conducted by police, soldiers and prison officers for the purpose of restoring order at the Golden Grove prison. The State contended that there was a period of increasing insecurity and insubordination at the prison extending over a period of months. It became necessary to reassert control over portions of the prisons, which had come under the control of prisoners. To this end, an exercise was planned involving prison officers, police and soldiers. That exercise involved the entry into the northern wing of the prison with riot suppression gear. That gear included pepper spray, and devices which fired rubber bullets. The State contended that such force as had to be used was a proportional response to that quite serious situation.
In respect of the appellant Mr. Clint Wilson, the trial judge considered that he had produced no medical report documenting his injuries. She therefore found that his claim that he had suffered injuries in the course of the exercise was unsubstantiated, and his claim for compensation for such injuries allegedly sustained was rejected.
In respect of the respondents Mr. Sobers and Mr. Joseph, the State has appealed the trial judge's findings (i) that their claims to have sustained injuries in the course of that exercise had been established by the evidence, and (ii) that the evidence disclosed that disproportionate force was used against them such that it constituted an assault.
Counsel for Mr. Wilson contends that the authorities have clearly established that, especially where cross-examination has occurred, that findings of fact of a trial judge should rarely be interfered with by an appellate court, except where the trial judge has been demonstrated to have been plainly wrong, which is not the case here. Commendably he contends therefore that if the judge's findings of fact supporting the claims of Mr. Joseph and Mr. Sobers should not be interfered with, in principle this will equally apply to findings of fact made by the trial judge with respect to Mr. Wilson. Therefore, if the claims of Mr. Sobers and Mr. Joseph were to be upheld on appeal then the claim by Mr. Wilson should fail, because all were based on findings of fact by the trial judge.
Were the findings of fact by the trial judge plainly wrong as to:
In those circumstances, the findings of fact and orders of the trial judge in respect of Mr. Sobers, Mr. Joseph and Mr. Wilson have not been demonstrated to be plainly wrong such that an appellate court can reverse them.
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i. Whether injuries, if any, were sustained;
in relation to:-
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a. Sobers,
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b. Joseph, and
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c. Wilson;
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ii. If so were they caused by the actions of the servants or agents of the State.
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iii. If so whether the degree of force used was reasonable or in proportion to the circumstances;
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i. a. The trial judge had sufficient evidence to conclude that injuries were sustained by Mr. Sobers.
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b. The trial judge had sufficient evidence to conclude that injuries were sustained by Mr. Joseph.
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c. The trial judge was entitled to find that, in the absence of any medical reports which corroborated Mr. Wilson's alleged injuries, and in circumstances where there was such corroboration in respect of around 50 other prisoners, that Mr. Wilson had not established that he had suffered any injury.
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ii. The trial judge was entitled on the evidence, which included corroboration by the witnesses of the State, to find that it was more likely than not that Mr. Sobers was shot in the face with a rubber bullet, by servants or agents of the State while he was in a cell. Equally the trial judge was entitled to find on the evidence that Mr. Joseph was assaulted and battered after the riot had been brought under control, after he had returned to a cell, and after he was then removed therefrom, in circumstances where the use of force was not then required to subdue him.
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iii. The trial judge was entitled to find on that evidence that the use of force on both Mr. Sobers and Mr. Joseph was not reasonable or proportionate to any threat they posed at the time they received their respective injuries.
8.
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i. The appeals of the State in respect of Mr. Sobers and Mr. Joseph are dismissed.
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ii. The appeal of Mr. Wilson is dismissed.
The trial judge was required to assess the evidence in relation to i) whether or not either Mr. Sobers, Mr. Joseph or Mr. Wilson sustained injury. ii) If they, or any of them did, were such injuries caused or occasioned by servants or agents of the State. iii) If so caused, were they caused by the unreasonable use of force by the servants or agents of the State disproportionate to the occasion. The issue in this case is whether the trial's judge's process of assessing and analysing the evidence in relation to those matters can be demonstrated to be so flawed as to be described as plainly wrong.
In the instant case, the court of appeal is asked to set aside findings of fact by a trial judge. The State in its appeal in relation to Mr. Sobers and Mr. Joseph contends that the instant situation falls within the exceptional case where a trial judge should be found to be plainly wrong. If so this will justify this court reviewing and interfering with the findings of fact by the trial judge.
The circumstances in which an appellate court would review findings of fact by a trial court are by now too well known to require rehearsal. See Beacon Insurance Company Limited v Maharaj Bookstore Limited [2014] UKPC 21 1, Petroleum Company of Trinidad and Tobago v Stanley Ryan and Anor [2017] UKPC 30 at
paragraph 15 2, Harracksingh v Attorney General of Trinidad and Tobago [2004] UKPC 3, Bahamasair Holdings Limited v Messier Dowty Inc [2018] UKPC 25 3. Those circumstances have been repeated as recently as this year in the case of Pleshakov v Sky Stream Corporation and Ors [2021] UKPC 15. Reference will therefore be made only to two of the more recent reiterations of those principles as summarized in recent decisions of the Privy CouncilThe Judicial Committee in Bahamasair Holding Limited v Messier Dowty Inc adopted the approach propounded by Lord Reed in Mc Graddie. Lord Kerr under the heading
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32. As was observed in DB v Chief Constable of the Police Service of Northern Ireland [2017] UKSC 7, para 78 the United Kingdom Supreme Court on a number of occasions recently has had to address the issue of the proper approach to be taken by an appellate court to its review of findings made by a judge at first instance. And, as was said in that case, perhaps the most useful distillation of the applicable principles is to be found in the judgment of Lord Reed in the case of McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
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33. In para 1 of his judgment Lord Reed referred to what he described as “what may be the most frequently cited of all judicial dicta in the Scottish courts” — the speech of Lord Thankerton in Thomas v Thomas [1947] AC 484 which sets out the circumstances in which an appeal court should refrain from or consider itself enabled to depart from the trial judge's conclusions. Lord Reed's comprehensive and authoritative discussion ranged over the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District Tramways Co Ltd (1919) SC (HL) 35, 36–37, where he said that an appellate court should intervene only if it is satisfied that the judge was “ plainly wrong”; the judgment of Lord Greene MR in Yuill v Yuill [1945] P 15, 19, and the speech of Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1, para 17 where he Stated that: “It can, of course, only be on the rarest of occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.”
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34. Lord Reed then considered foreign jurisprudence on the subject in paras 3 and 4 of his judgment as follows: “3. The reasons justifying that approach are not limited to the fact, emphasised in Clarke's case and Thomas v Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses' evidence.
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