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Harracksingh v. Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2004] UKPC 3 (15 January 2004)

Privy Council Appeal No. 28 of 2002

Mitra Harracksingh Appellant

(1) The Attorney General of Trinidad and Tobago and

(2) P.C. Neville Adams Respondents

FROM

THE COURT OF APPEAL OF TRINIDAD

AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th January 2004

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Present at the hearing:-

Lord Hoffmann

Lord Hope of Craighead

Lord Scott of Foscote

Sir Andrew Leggatt

Sir Kenneth Keith

[Delivered by Sir Andrew Leggatt]

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The appellant, Mitra Harracksingh, was plaintiff in the action out of which this appeal arises. The appellant sued the respondents, the Attorney General of Trinidad and Tobago and P.C. Neville Adams, for false imprisonment, assault and battery and malicious prosecution. The trial judge, Mr Justice Mendes, gave judgment for the appellant on all three grounds in the sum of $88,050 plus interest. Against the judgment of the Court of Appeal, reversing that decision, the appellant now appeals to their Lordships' Board.

On 28th June 1991 the appellant was living in a rented room in a building in Back Street, Tunapuna when an altercation occurred between him and a woman who lived in another rented room on the same floor of the building. She called the police, alleging that he had damaged a vase. In consequence, at 11 p.m. three police officers in plain clothes arrived at the building in a police van. The only record of the evidence given at trial was the judge's notes. According to them the appellant said that he heard a knock at the door from a person who identified himself as a police officer. The appellant said, "Wait five minutes", but within that time there was a big bang, the hasp and staple were broken, and the door came off its hinges. The appellant described how two officers in plain clothes entered, and, when he asked them if they needed a warrant, they told him to put on his pants. He said he was dragged bare-footed down two flights of stairs and his head was banged against the back door of the police van. This made it bleed, and his cervical disc was damaged. According to the appellant P.C. Adams drove the van very fast and slammed on the brakes, with the result that his head hit the back of the seat in front and the officer with him in the back slammed his feet into the appellant's testicles. On arrival at the police station P.C. Adams said, "Throw the mudder cunt in the cell. He can't get bail until Monday morning." Some time later he was, however, released on bail, following the intervention of Corporal Sammy, whom he knew.

P.C. Adams gave evidence that he was the driver of the police van. He stopped outside the appellant's home, sounded the horn and called his name. The answer was, "Give me ten minutes". The officer replied that he did not have so much time. He and P.C. Lezama then went upstairs with a woman who had emerged from the building. In response to their knock, the appellant opened the door. He was quarrelsome, very angry, and smelt of drink. The appellant and the officers then went downstairs. It was P.C. Adams's evidence that, as the officers were about to leave in the van, the appellant said, "Is that all yuh come and focking harassing me for, it have focking bandit pushing coke and all you not arresting them". He was immediately arrested for "making use of obscene language" to the annoyance of persons in the street, taken in the van to the police station and charged. P.C. Lezama's evidence was substantially the same, but he did add that when the appellant said that the dispute with his neighbour had been settled, P.C. Adams warned him to desist from such behaviour in future. Sergeant Sammy (as by the time of trial he had become) claimed to remember nothing of the events in question, except that the appellant was charged. P.C. Adams agreed in cross-examination that at the Magistrates' Court he had said that when the appellant came out of the house the officer identified himself to him. Apart from this, all the witnesses adhered in cross-examination to their evidence-in-chief. The third arresting officer was not called.

The appellant said that when released from the police station he went to the casualty department at the Port of Spain General Hospital for a while and saw a doctor there before being sent to a ward for observation. He said his most severe injury was the damage to his cervical disc. There were lacerations to his fingers, toes and head, and his testicles were "swollen for quite some time and pretty painful". He added that "there was blood all over" and he thought he had lost a tooth. The acting medical records officer from the hospital produced such records as he had, but they did not include the casualty card. The record timed at 2.50 a.m. on 29th June 1991 showed the principal injury as whiplash injury, while that timed at 10.10 a.m. later that morning stated "pain in neck" and referred to "hit about body and neck", "now pain behind neck", and "pain about rest of body". It reiterated "whiplash injury", for which a temporary cervical collar and pain killers were prescribed. The appellant said that he had to wear a cervical collar for some time and that he went to the outpatients department twice a week until August 1991. The records show that he was then discharged. On the ground that Dr Sandra B. Kennedy was not proved not to be available as a witness, the judge refused to admit in evidence her report dated 19th January 1992. He acknowledged that it "dealt with the treatment of the Plaintiff in the Accident and Emergency Department on June 28^th 1991 and contains a detailed listing of all the injuries which the doctor observed." On 15^th July 1991 at Tunapuna Magistrates Court the charge against the appellant was dismissed.

Reviewing the evidence, the judge observed that P.C. Lezama recalled the events "in remarkably similar detail as the evidence given by P.C. Adams and added very little". He regarded Sergeant Sammy's evidence as "entirely unhelpful" and formed "the impression that his memory was selective". The judge was left "in a state of unease concerning what he may in fact have observed and remembered about the Plaintiff's condition ... but preferred to avoid having to testify about it". The judge said he "found the evidence given on behalf of the Defendants to be inherently unreliable". About it the judge made five numbered comments. First, although the officers were responding to a complaint of malicious damage, no explanation was given why the appellant was not arrested and prosecuted for it. But this was a mistake because the judge was disregarding the evidence of P.C. Lezama, that because the dispute with the neighbour had been settled, the appellant was warned by P.C. Adams about his future conduct. Secondly, the judge found it odd that the appellant, having been confronted by the officers at the door of his apartment, should follow the officers downstairs before exploding into obscene expletives when they got into the van. Thirdly, the evidence about this confrontation had been contradicted by P.C. Adams in the Magistrates' Court when he said in evidence (admitted by the judge by consent) that the appellant came downstairs while the officer waited in the van. Fourthly, the officers' denials that the appellant was injured while in custody were at odds with the undisputed evidence that a few hours later he was treated at the hospital. Fifthly, although P.C. Lezama made no notes, yet when he came to give evidence seven years later "he was able to recall in noticeable detail and in almost identical terms to the evidence given by P.C. Adams, what had allegedly taken place". The judge contrasted that with Sergeant Sammy "who recalled nothing at all". He concluded that he "did not think [he] could safely rely on the Defendants' evidence in all of these circumstances".

In the Court of Appeal Nelson JA, with whom the other Justices of Appeal agreed, sought to detract from the cogency of each of these matters. The first (relating to the reason why the appellant was not charged), as to which the judge made a mistake, was the only point conclusively refuted by the Court of Appeal. Secondly, Nelson JA rejected the judge's finding that it was odd that the respondent should follow the officers downstairs and then explode into expletives. He did so on the inconclusive ground that the judge seems to have accepted that the appellant was angry and would at times in that condition engage in an outburst of expletives. Thirdly, Nelson JA referred to the contradiction identified by the judge between the evidence given by P.C. Adams in the magistrates' court and that which he gave in the High Court, but disparaged it on the ground that "the real issue is whether the alleged obscene language occurred in a public place". Fourthly, Nelson JA discounted the judge's point that the officers' denial of injury to the appellant was contradicted by the evidence of his hospital treatment only a few hours later, because the medical records did not mention injury to the appellant's testicles or to his head. But this criticism is undermined by the fact, ignored by the Court of Appeal, that the casualty card was not produced and that the judge declined to admit the doctor's report, which "contained a detailed listing of all the injuries which the doctor observed". So it is not legitimate to assume that particular injuries were not noted by the doctor. Fifthly, the judge regarded P.C. Lezama's evidence as unsafe on the ground that he claimed to recall the events of seven years earlier in almost identical terms to P.C. Adams. Nelson J.A. made light of this solely because the judge had not noted that P.C. Lezama did give an explanation why the complaint of criminal damage against the appellant was not taken further. The Court of Appeal attributed to the judge a sixth reason, namely that Corporal Sammy "recalled nothing at all", whereas (said Nelson JA) he did remember the appellant being charged. Although these points were not individually of great moment, it is also true that the criticisms did little to detract from them.

After reciting these points Nelson JA declared himself "mindful that due respect must be paid to the learned Judge's findings of fact". He added, "However, where, as here it is clear that he has failed to use the advantage of seeing and hearing the witnesses a Court of Appeal ought not to shrink from reversing his findings of fact". Nelson JA also purported to bear in mind that the judge "set much store by the demeanour of the respective witnesses, as he was entitled to do". But having asserted that the judge failed to check his impressions against the medical records, Nelson JA proceeded without more to hold that the circumstances dictated that the judge's findings be set aside and the appeal allowed. This summary approach paid no more than lip service to the judge's findings of fact. By contrast with the unreliability which the judge ascribed to the evidence given on behalf of the respondents, he said he was impressed with the way in which the appellant gave his evidence.

The appeal to the Court of Appeal was exclusively against conclusions of primary fact reached by the judge. The only conclusion shown to be wrong was that no reason had been given for not pursuing the complaint of malicious damage. It is to be contrasted with the reason for arresting and charging the appellant and holding him at the police station for at least two hours, namely that he had twice used a common swear word. With the exception of the point about the medical evidence, the comments made by the Court of Appeal about the judge's other grounds for not regarding the respondents' evidence as reliable all represented at best alternative ways of looking at the matters mentioned by the judge. But they were advanced without sharing the judge's advantage of seeing and hearing the witnesses themselves. Such force as there was in the suggestion that insufficient account was taken of the absence of reference in the medical evidence to injuries to the appellant's head and testicles was considerably diminished by the fact that those injuries may well have been specified in the casualty card and the doctor's report, which were not before the court. For the respondents Mr Dingemans QC sought to embellish the point by reference to the omission of the injuries from the Statement of Claim. But this omission too was indeterminate. Since the judge made no error of any consequence and his evaluation of the evidence was unexceptionable, there would have been little warrant, even if the matter had ended there, for interfering with his decision. But the matter did not end there.

In clear and unambiguous terms the judge stated the true basis of his decision:

"I have absolutely no doubt that the Plaintiff told the truth concerning the events of June 28th 1991. I believe him when he said that he did not use obscene language that night and I believe him when he said that he was assaulted and beaten by police officers Adams and SRP Maraj. I also believe him when he said that as a consequence of the injuries he received he visited the Port of Spain General Hospital that night, first at the casualty department and then in ward 13 where he was attended to and a cervical collar recommended. I come to these conclusions on the basis of the observations which I made of the demeanour of the various witnesses when they gave evidence. In particular, I was impressed with the way the Plaintiff represented himself in cross examination, ...."

In the light of that passage it is difficult to understand what Nelson JA can have had in mind when he asserted of the judge that "it is clear that he has failed to use the advantage of seeing and hearing the witnesses." On the contrary, the use made by the judge of his advantage is explicit, whereas the Court of Appeal, despite their acceptance that "due respect must be paid to the judge's findings of fact", are not seen to have accorded them any real weight.

The classic approach of an appellate court was formulated thus by Lord Sumner in Owners of Steamship Hontestroom v Owners of Steamship Sagaporack [1927] AC 37 at page 47:

"... not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."

In their Lordships' judgment that must be taken to represent the basis upon which the Court of Appeal have intervened in the present case. Lord Sumner added:

"If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should ... be let alone."

It is axiomatic that even where a case on paper would support a decision either way, the trial judge's decision ought not to be disturbed unless it can be demonstrated that it is "affected by material inconsistencies and inaccuracies or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong": see Watt or Thomas v Thomas [1947] AC 484 per Lord Macmillan at page 491. No such criticism could be substantiated here. In this case the demeanour of the witnesses was not merely material: it was critical. The decisive findings of fact depended not on mere inferences but upon the judge's view of the truthfulness of conflicting testimony; and the respondents should have been adjudged to have failed in the Court of Appeal to discharge the burden of showing that the trial judge was wrong in his assessment. In these circumstances their Lordships are driven to conclude that the Justices of Appeal were not justified in taking a different view of the facts from the trial judge.

The Court of Appeal also asserted that it was not open to the judge on the pleadings to hold that the officer had not acted in the execution of his duties; that if it had been, the case against the Attorney General would have failed; and that both respondents were entitled to the protection of section 2 of the Public Authorities Protection Act. But that is fallacious. Before their Lordships Mr Dingemans conceded that if the judge's findings were to be upheld that the appellant did not use obscene language, but was wrongfully accused by the officers of having done so, the respondents would not be protected by the section. That is because, as Lord Justice Scrutton explained in Scammel and Nephew Ltd v Hurley [1929] 1 KB 419 at page 427 –

"... if illegal acts are really done from some motive other than an honest desire to execute the statutory or other legal duty and an honest belief that they are justified by statutory or other legal authority; if they are done from a desire to injure a person or to assist some person or cause, without any honest belief that they are covered by statutory authority, or are necessary in the execution of statutory duty, the Public Authorities Protection Act is no defence, for the acts complained of are not done in intended exercise of a statute, but only in pretended execution thereof."

The Attorney General nevertheless remains vicariously liable for the torts of the police officers. The effect of upholding the judge's findings of fact is to find unequivocally proved the claims in assault and false imprisonment. On that footing the conduct of the police officers was not merely "overzealous", as Mr Dingemans submitted: it was tortious. Although even upon that assumption he did not formally concede liability for malicious prosecution, it is irresistible. Not only was the prosecution doomed, but charging a person with an offence, which the arresting officer knows he has not committed, necessarily involves a lack of honest belief on the part of the officer, and his motive can only have been improper.

For these reasons the appeal will be allowed and the judgment of the trial judge restored. The respondents must pay the appellant's costs.