Mootoo v Flaviney et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Mendes, J |
| Judgment Date | 10 August 1998 |
| Neutral Citation | TT 1998 HC 119 |
| Docket Number | S 48 of 1998 |
| Court | High Court (Trinidad and Tobago) |
| Date | 10 August 1998 |
High Court
Mendes, J.
S 48 of 1998
Mr. G. Sinnanan for the applicant
Mrs. Maharaj-Brown for the respondents
Constitutional law - Whether arrest and detention of applicant was lawful — Applicant not told reason for his arrest — Alderson v. Booth [1969] 2 W.L.R. 1252 considered — Section 36(2) of Police Service Act, Chap. 15:01 considered — Judgment in favour of applicant.
On October 16th, 1997, at about 9.50 am, the applicant was driving a motor vehicle in a southerly direction along Independence Avenue, San Fernando. The vehicle belonged to his employer, Caroni (1975) Limited. Upon reaching the intersection of Independence Avenue and Keate Street, he turned right into Paradise Pasture and eventually parked his car in the car park of the San Fernando General Hospital. The intersection of Independence Avenue and Keate Street is controlled by traffic lights. The applicant deposed that when he turned into Paradise Pasture the light facing him was green. It so happened that in making his turn, he cut across the path of a marked Emergency 999 police vehicle heading north along Independence Avenue. The two police officers who were in the E 999 vehicle took the view that the applicant turned into Paradise Pasture against a red light and accordingly followed him into the hospital car park. It is what happened there which has given rise to these proceedings.
The applicant alleges that as he alighted from his vehicle, the first respondent, Police Constable Flaviney, emerged from the police vehicle and approached him in a hostile and threatening manner, demanding his insurance certificate and driver's permit and accusing him of having breached a traffic light. The applicant pleaded his innocence and handed over the documents requested. He also told P.C. Flaviney where he lived and worked. To his surprise, P.C. Flaviney proceeded to take out his handcuffs, inform the applicant that he was under arrest and order him into the back seat of the police vehicle which was occupied by two men dressed in civilian clothes. The police officers then drove into the hospital compound, where the two men were let out, and proceeded to the traffic section of the San Fernando Police Station. There, the applicant was put to sit in a caged area until about 11.00 am when he was handed a Notice of Opportunity to Pay a Fixed Penalty. He was eventually allowed to leave the station at 11:15 am. He was therefore detained against his will, he alleges, for approximately one hour and fifteen minutes.
The applicant commenced these proceedings on January 21st, 1998 claiming a declaration that his right to liberty and not to be deprived thereof except by due process of law had been infringed, and damages for such infringement. He was denied due process, he says, because P.C. Flaviney had no authority in law to arrest him in the circumstances and/or the decision to arrest was unreasonable, capricious and unnecessary. His right to due process was also denied, he says, by the failure of the police officers to inform him of his right to retain and instruct a legal advisor of his choice.
The State's case was that no arrest or detention had occurred. Accordingly, there was no violation of the right to liberty and since the right to retain and instruct a legal adviser arises only after an arrest and detention, the right to be informed of this right never accrued.
The evidence in support of the State's case was presented by P.C. Flaviney and P.C. Lakhan Maharaj, the other police officer in the E 999 vehicle. When they accused the applicant in the car park of breaching a red light, they said, he denied the charge. P.C. Flaviney then repeated the accusation, which the applicant again denied, but this time he became hostile and began to argue in a loud tone of voice. According to P.C. Flaviney, he then told the applicant that he was not there to argue and he asked the applicant to accompany him to the police station so that he could issue him with a ticket for the offence since he did not have a ticket book with him. The applicant regained his composure, asked P.C. Flaviney whether he could use his own car to go to the station and proceeded to do just that. At the station, P.C. Flaviney prepared a Fixed Penalty ticket for an offence against section 66 (b) of the Motor Vehicle and Road Traffic Act, Chap. 48:50 and handed it to the applicant. This took all of fifteen minutes. The applicant then left the station after speaking to another officer.
The State's case, therefore, was that the applicant voluntarily accompanied the officers to the police station. At no time was he arrested and, presumably, he was at all times free to change his mind and go about his business. In this, the State relied on the case of Campbell v. Tormey [1969] 1 All E.R. 961. In the judgment of Ashworth J., the following passage from R. v. Jones, Ex parte Moore [1965] Crim. L. R. 221, at pg. 223, is quoted (at pg 966):
“If a person accompanies a policeman voluntarily and not in consequence of a command he is not arrested but there is an arrest if that person goes only because he feels constrained to do so.”
I accept the evidence of the applicant that he was forced or, at least, felt constrained to accompany the police officers to the police station. In my judgment, the events were more likely to have unfolded in the way the applicant said they did. I was influenced by the following considerations.
First of all, I accepted the evidence of Mr. Thecal Mayers, a Traffic Safety Officer attached to the Ministry of Works and Transport Department, Traffic Management Branch. He did not appear to have any interest in this matter or any connection with any of the parties, or at least, none were brought out in evidence. I was therefore in a position to treat him as an independent witness. Further, there was nothing in his evidence which was inherently unbelievable. He said that on the 14th or 15th October, 1997, he observed that the traffic light which normally controlled traffic turning into Paradise Pasture was missing, leaving only the overhead lights controlling the southbound traffic. He said that during the following week he gave instructions that the light be replaced and it was. He therefore concluded, and insisted, despite strenuous suggestions to the contrary by counsel for the respondents, that there was no traffic light for traffic turning in Paradise Pasture on October 16th, 1997. This evidence was corroborated by the evidence of the applicant who said that there was no such light at the intersection on October 16 th, 1997 and that on October 17th, 1997 he took a photograph of the intersection, which he produced in evidence, which showed that the light was not where it normally was. Yet still, P.C. Flaviney maintained that he was able to determine that the applicant had ‘broken the red light’ because when his vehicle crossed the intersection, he looked back and saw that the light, which controlled traffic turning into Paradise Pasture, was erected, as normal, on the upright pole at the centre of the roadway, and was still red. I did not believe him. I accept of course, that though he may not have told the truth in this matter, he nevertheless might have accurately represented the evidence concerning the alleged ‘arrest’. However, inevitably, his credibility was affected by this indiscretion.
Secondly, when the police officers headed off in pursuit of the applicant, P.C. Flaviney was well aware that he did not have any fixed penalty tickets on him and that he would, somehow, have to persuade the applicant to attend the police station where the ticket could be issued. As such, P.C. Flaviney must have been pre-disposed, if it became necessary, to take the applicant to the station against his will.
Thirdly, P.C. Flaviney testified that the applicant became hostile and argumentative but that as soon as P.C. Flaviney asked him politely to accompany him to the station so that he could issue him with a ticket charging him with an offence which he was so vehemently protesting, the applicant immediately boiled down like the proverbial pot of bhagi and calmly accompanied the officer to the station in his own vehicle. What caused this sudden change in mood was not suggested, but one explanation, certainly, is the brandishment by P.C. Flaviney of his handcuffs, as the applicant claimed. P.C. Flaviney said that when the applicant crossed his path at the intersection, the police vehicle screeched to a halt in order to avoid a collision. Not only did the applicant ‘break the light’, therefore, he also drove dangerously and no doubt the officers became appropriately incensed. It was, therefore more likely that, as the applicant claimed, P.C. Flaviney approached him in a hostile manner, barking orders, intolerant of the applicant's denials of guilt and further aggravated by them, and ready to handcuff him and cart him off to the station.
For these reasons, I find that P.C. Flaviney arrested the applicant and took him to the police station where he detained him. However, I do not believe the applicant's account of the length of his detention. He does not say on what for about one and a quarter hours.
It is worthwhile noting that even if I had accepted P.C. Flaviney's version of the events, I would have found, nevertheless, that he detained the applicant against his will. First of all, although P.C. Flaviney maintained in cross-examination that he asked the applicant to accompany him to the station and the applicant voluntarily complied, in his affidavit filed in these proceedings he deposed that he “told the applicant that he should accompany (him) to the Traffic Section, San Fernando Police so that (he) could give him a ticket there”, language which, in my judgment, suggests more of a command than a request. In Alderson v. Booth [1969] 2 W.L.R....
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