Habib et Al v Attorney General
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 19 May 2016 |
| Neutral Citation | TT 2016 HC 427 |
| Docket Number | H.C.A. 1091 of 2004; H.C.A. 1093 of 2004; H.C.A. 1095 of 2004; H.C.A. 1096 of 2004; H.C.A. 1089 of 2004; H.C.A. 1092 of 2004 |
| Court | High Court (Trinidad and Tobago) |
| Date | 19 May 2016 |
High Court
Rampersad, J.
H.C.A. 1091 of 2004; H.C.A. 1093 of 2004; H.C.A. 1095 of 2004; H.C.A. 1096 of 2004; H.C.A. 1089 of 2004; H.C.A. 1092 of 2004
applicants: Mark Seepersad instructed by Terrance Davis
respondent: Neil Duncan Byam instructed by Michelle Benjamin
Constitutional Law - Murder — Breach of constitutional rights — Whether the manner in which the applicants were detained was unconstitutional — Applicants' mental condition — Review of applicant's detention and mental condition — Detention at the President's pleasure — Whether the Executive had the power to determine the duration of the applicant's detention — Order of detention — Constitutionality of section 67 of the Criminal Procedure Act — Whether the applicants should be compensated — Assessment of damages — Interest — Sections 67 and 68 of the Criminal Procedure Act — Sections 5 and 6 of the Constitution — Section 4A of the Offences Against the Persons Act.
On 27 September 2012 this Court delivered its decision in the consolidated matters of Selwyn Dillon v. AG HCA no. 3498 of 2004, Christopher Ventour v. AG HCA no. 1094 of 2004, and Miguel Francis v. AG HCA no. 1090 of 2004 (“the decision in Dillon and others”), representing matters for consideration in respect of the following issues:
- Are sections 67 and 68 of the Criminal Procedure Act Chap. 12:02 and section 4A of the Offences Against the Persons Act Chap. 11:08 unconstitutional by being in breach of the principle of the separation of powers? 1.2. Have the applicants suffered breaches of their constitutional rights under sections 4 and 5 of the Constitution? 1.3. Are the applicants entitled to damages?
It was agreed that the decision in Dillon and others would be the forerunner of the matters which are the subject of this judgment and that, depending on the outcome of that decision, the Court would accordingly deal with the issues of damages in respect of the current matters.
The decision in Dillon and others was as follows:
- “It is declared that section 4 A (6) of the Offences Against the Persons Act contravenes the separation of powers and is unconstitutional. 3.2. The said section 4 A (6) is hereby modified to read “Court's pleasure” instead of “President's pleasure. 3.3. It is further dedared, in the cases of Christopher Mr. Ventour and Miguel Mr. Francois, that their Constitutional rights under sections 4 (a) and (b) and 5 (2)(h) of the Republic of Constitution of Trinidad and Tobago have been breached by the failure to review their detention whilst incarcerated. 3.4. The defendant shall pay the following general damages to the following plaintiffs: 3.4.1. To Selwyn Dillon the sum of 2,500,000.00 as compensatory damages and $500,000.00 as vindicatory damages; 3.4.2. To Christopher Ventour the sum of 2,500,000 as compensatory damages and $500,000.00 as vindicatory damages; 3.4.3. To Miguel Francois the sum of 750,000.00 as compensatory damages and $250, 000.00 as vindicatory damages; 3.5. The defendant shall pay interest on the said sums of general damages at the rate of 6% per annum from the following dates: 3.5.1. In respect of Mr. Selwyn Dillon from the 12th December, 2003. 3.5.2. In respect of Mr. Christopher Ventour from the 22nd April, 2004. 3.5.3. In respect of Mr. Miguel Francois from the 227d April, 2004. 3.6. The defendant shall pay to the plaintiffs their following costs: 3.6.1. To Selwyn Dillon his costs of the assessment of damages; 3.6.2. To Christopher Ventour and Miguel Francois their costs of their respective claims; All to be taxed in default of agreement. 3.7. In light of information disclosed to the Court in relation to Mr. Ventour, the Court orders a stay in Mr. Ventour's application until further order”
It was the Court's intention to make a declaration in relation to the impugned provisions of the Criminal Procedure Act (CPA) in similar terms as the declaration made in relation to the Offences against the Persons Act (OAPA) but deemed it unnecessary in light of the decisions of the Privy Council in Charles Matthews v. The State [2004] UKPC 3 and Seepersad and another v. Attorney General of Trinidad and Tobago [2012] UKPC 4 — further details of which are set out below.
The applications of Simon Habib, Wayne Alleyne, Roger Sobers, Winston Solomon, Leonard Sylvester and Junior Collins were agreed to be stayed to abide the outcome of the decision in Dillon and others. Consequently, having determined the State's liability to these plaintiffs, the Court is only required to deal with the question of the assessment of damages, if any, in relation to the six named applicants.
Judgment was given in relation to the application of Felix James on 02 October 2006 and the judge therein gave an order for damages to be assessed by a Master. However, the matter was reassigned for the assessment be determined by this Court in light of the similarities in relation to the legal issues which the Court was asked to resolve in the other six matters herein and the decision in Dillon and others. [Upon Mr. Seepersad indicating that there were relevant matters before this Court Master Mohammed made an order on 27/09/2011 for the matter to be reassigned]
In 1987, Mr. Habib was charged with the offence of murder. He was tried and convicted in 1988 and on appeal a re-trial was ordered. In 1990, Mr. Habib stood trial for the second time and a special verdict of guilty but insane was recorded against him. Mr. Justice Brooks made an order under section 67 of the CPA that Mr. Habib be detained until the President's pleasure be known.
The application for the release of Mr. Habib was filed on 22 April 2004. He sought several declarations regarding the unconstitutionality of section 67 of the CPA insofar as it violated section 4 and 5 of the Constitution and the various rights therein enshrined. He also sought certain declarations and orders that his detention at the conclusion of his trial for murder was unconstitutional, illegal and void and that the order detaining him should be set aside. Several additional orders and declarations were sought arising out of his detention.
Mr. Habib had been detained at the St. Ann's Hospital Forensic Unit in execution of the order of Mr. Justice Brooks. At the time that the application was filed in 2004, Mr. Habib had been detained for 14 years in execution of the said order and over 17 years incarcerated when the time spent awaiting trial and his first conviction is taken into account.
The application contended that the manner in which he was detained was in violation of his fundamental rights under section 4(a) and (b) as his detention was without judicial input and he was detained even after the Psychiatric Hospital Tribunal (the Tribunal) recommended him for release among other things.
The application was supported by the affidavit of Mr. Habib dated 24 April 2004. He detailed the circumstances of his arrest. He stated that at the time of his arrest he lived in lower Piparo with his mother and sister and earned his living selling coconuts in San Fernando. On 7 February 1987 while vending coconuts a man stole a coconut from Mr. Habib who retaliated by chopping him with a cutlass which landed on his head. The man later succumbed to his injuries and Mr. Habib was arrested and charged with murder. He attested to the fact that after his verdict was delivered, the trial judge Mr. Justice Brooks made an order that he should be detained until the President's pleasure be known. He stated that he was incarcerated from that date under deplorable conditions at the St. Ann's Mental Hospital and was diagnosed as suffering from a form of schizophrenia. Mr. Habib deposed that he understood that his release was dependent on a recommendation from the Psychiatric Hospital Tribunal which could not have released him but was responsible for making the appropriate recommendation to the Minister of National Security who in turn informs the President who would order his release. He noted that there was another Tribunal with the power to order the release/discharge of patients, which is the Mental Health Tribunal, but that this procedure was never applied to him. At the time of the making of this affidavit, he stated that he had never been informed of whether the Psychiatric Hospital Tribunal had made a recommendation or whether the Minister of National Security or President had received any such recommendation but that on his last appearance before the tribunal, the panel informed him that they would be recommending him for release.
Dr. Iqbal Ghany, Consultant Psychiatrist at the Forensic Unit, St. Ann's Hospital, provided an affidavit sworn on 22 April 2004 whereby he have his professional opinion. He indicated that the applicant, at the date of the affidavit, was in a mental state such that Mr. Habib's mental illness was well under control and with the help of drugs had made a full recovery and did not require further detention as any further treatment could effectively be administered outside of the Forensic Unit. Dr. Ghany stated that further detention would be counter-productive to the applicant and would in fact result in a deterioration of his general mental health and cause undue suffering and stress. It was his recommendation therefore that Mr. Habib be released forthwith. This was in keeping with the recommendation given by the Psychiatric Hospital Tribunal which was that Mr. Habib ought to be released with effect from 26 August 1998. Dr. Ghany deposed that he had been a member of that Tribunal but he did not indicate whether he was a member at the time that the recommendation in relation to the Mr. Habib was made.
On 21 May 2007, the Honourable Mr. Justice Ibrahim gave the following reliefs:
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