Habib et Al v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Judge: Devindra Rampersad
• Judgment Date: 19 May 2016
• Neutral Citation: TT 2016 HC 397
• Docket Number: H.C.A 1091 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

IN THE HIGH COURT OF JUSTICE

Before

The Honorable Mr. Justice Devindra Rampersad

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

In the Matter of Section 4 and 5 of the Constitution of the Republic of Trinidad and Tobago Act no 4 of 1976

and

In the Matter or Section 67 of the Criminal Procedure Act Chapter 12:01

and

And in the Matter of Section 5 of the Constitution of the Republic of Trinidad and Tobago Act Act 4 of 1976 Chapter 1:01

and

In the Matter of the Detention of Simon Habib / Wayne Alleyne / Roger Sobers / Winston Solomon / Leonard Sylvester / Junior Collins / Felix James

From 1990 To The Present Day At The St. Ann's Hospital By The Psychiatric Hospital Director, His Officers Of The State Of The Republic Of Trinidad

and

In The Matter of an Application By Simon Habib / Wayne Alleyne / Roger Sobers / Winston Solomon / Leonard Sylvester / Junior Collins / Felix James

A Citizen of the Republic of Trinidad and Tobago

Alleging That Certain Provisions of the Said Constitution Have Been Contravened and are Being Contravened in Relation to him for Redress in Accordance with Section 14 of the Constitution

Between

Simon Habib

Wayne Alleyne

Roger Sobers

Winston Solomon

Leonard Sylvester

Junior Collins

Felix James

Applicants

and

The Attorney General of Trinidad and Tobago

Respondent

Appearances:

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 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.

ASSESSMENT OF DAMAGES

CONTENTS

The applications	5
Simon Habib	7
The History	7
The Application	7
The Order of Justice Ibrahim	9
Wayne Alleyne	9
The History	9
The Application	10
The Order of Justice Ibrahim	11
Roger Sobers	12
The History	12
The Application	12
The Order of Justice Ibrahim	14
Winston Solomon	14
The History	14
The Application	14
The Order of Justice Ibrahim	16
Leonard Sylvester	17
The History	17
The Application	17
The Order of Justice Ibrahim	19
Junior Collins	19
The History	19
The Application	19
The Order of Justice Ibrahim	21
Felix James	21
The History	21
The Application	22
The Order of Justice Ibrahim	24
Submissions	25
Issues to be determined	27
The Unconstitutionality of sections 67 and 68 of the CPA and section 4A of the OAPA	28
The breaches of the applicants' constitutional rights under sections 4 and 5 of the Constitution	30
The Measure of Damages	31
The Mukesh Maharaj Decision of the Court of Appeal	37
The Awards	41
Simon Habib	42
Wayne Alleyne	43
Roger Sobers	43
Winston Solomon	44
Leonard Sylvester	44
Junior Collins	45
Felix James	45
Interest	46
The Order:	46

The Applications

1 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:

1.1

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?

2 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.

3 The decision in Dillon and others was as follows:

3.1

“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 “Courts pleasure” instead of “Presidents pleasure”. 3.3. It is further declared, 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 22nd 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.”

4 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.

5 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.

6 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. 1

Simon Habib

The History

7 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

8 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.

9 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.

10 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.

11 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...