republic of trinidad and tobago in the high...

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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2015-00455

NEIL BHAGWANDEEN Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

Before the Honourable Madam Justice Margaret Y Mohammed

Dated the 17th March, 2017

APPEARANCES

Ms. Cindy Bhagwandeen Attorney at law for the Claimant.

Ms. Tamara Toolsie instructed by Ms. Diane Katwaroo Attorneys at law for the Defendant.

JUDGMENT

1. This action surrounds an alleged assault and battery of the Claimant by certain police officers

on the 18th May 2012 along the Manzanilla Road. The Claimant instituted the instant action

seeking damages including aggravated and or exemplary damages for assault, battery,

detinue, conversion and/or redress for a breach of his constitutional right to security of the

person pursuant to Section 4 (a) of the Constitution of the Republic of Trinidad and

Tobago (“the Constitution”).

2. The Claimant’s case is that on the 18th May, 2012 at approximately 8:00 am he was driving a

Nissan dump truck bearing registration number TCB 1820 (‘the truck”) along the Manzanilla

Roadway heading to Mayaro. In the vicinity of some old houses located not too far from a

location known as the “break away” in Manzanilla, the Claimant observed that a police bus

bearing registration number TCC 4048 (“the police bus”) wanted to overtake the truck. He

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slowed down, pulled to the extreme left of the roadway and permitted the police bus to

overtake him due to the narrowness of the roadway.

3. Whilst the police bus was overtaking the truck, its mirror touched the right rear of the truck

but it did not break. The police bus pulled in front of the truck after overtaking it causing the

roadway to be blocked. The Claimant later found out that the driver of the police bus was PC

Renaud Regimental Number 15758 (“PC Renaud”) attached to Rio Claro Police Station. The

Claimant observed approximately seven (7) persons in the police bus including the driver.

Upon stopping the police bus, the driver exited it and proceeded to open the driver side door

of the truck and requested the Claimant’s driver’s permit and insurance.

4. The Claimant attempted to comply with PC Renaud’s directions but as he reached for his

documents, the officer drew his firearm and pointed it at the Claimant’s head. The Claimant

was then told to forget the driver’s permit and insurance and told to exit the vehicle. As the

Claimant was exiting the truck, PC Renaud held on to the collar of his jersey, squeezing his

neck, as he was pulled out of the truck. PC Renaud then placed the Claimant against the truck

with his hands in the air and proceeded to search him.

5. Whilst the Claimant was being searched, two other officers, one of whom the Claimant

described as of African descent (“the second African officer”), entered and searched the

truck. The second African officer entered the truck on the driver’s side and subsequently

exited with the Claimant’s wallet and cellular phone and then proceeded to the back of the

truck. Whilst this was occurring, PC Renaud slapped the Claimant on the right side of his

face and then kicked him in his chest region.

6. After sometime, the second African officer handed the wallet and the cellular phone to PC

Renaud who was still holding on to the jersey of the Claimant against the truck. PC Renaud

repeatedly told the Claimant: “I is a different kinda police; you f**ker I could shoot you with

my gun and no one can do anything. Is only police and you here”. PC Renaud then returned

the Claimant’s belongings and released the collar of his jersey. The Claimant immediately

checked his wallet in the presence of the officers and observed that his driver’s permit and

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insurance was still there but that his cash in the sum of $6,000.00 which was to purchase

material (i.e. sand and gravel) for that day was missing. The Claimant enquired of PC Renaud

and the second African officer, about his money and showed them his empty wallet. Both

officers said “what money” and “do what you want” before they returned to their vehicle and

drove off towards Mayaro.

7. The Claimant then proceeded to the Mayaro Police Station where he made a report of the

incident and he subsequently sought medical attention at the Mayaro District Health Facility

and four (4) days later from Dr. Chandardath Bodoe. According to Dr Bodoe’s medical report

the Claimant sustained trauma to the right side of the face and anterior chest wall; persistent

chest pains; deep soft tissue injury. Upon receipt of medical attention the Claimant was

prescribed medication. The Claimant also reported the incident to the Police Complaints

Authority.

8. As a result of the incident the Claimant complained that he was unable to work for the rest of

that day and he had to hire another driver to complete his tasks for a week at a cost of

$2,500.00. He also alleged that he suffered from nightmares for several months and that he

would wake up in the middle of the night suffering from cold sweats. The Claimant further

asserted that he developed a feeling of mistrust towards police officers and that subsequent to

the incident he becomes very anxious whenever he sees police officers as he fears that they

will try to shoot him.

9. The Defendant’s version of the incident was that on the 18th May, 2012 around 8:00am

Acting Corporal Vialva Regimental No. 12746 (“PC Vialva”) was driving the police bus

along the Manzanilla Mayaro Road. In the police bus were: PC Manna Regimental No.

17671 (“PC Manna”), PC Baran Regimental No. 18322 (“PC Baran”), PC Nanan Regimental

No. 18422, (“PC Nanan”) PC Sooknanan Regimental No. 18326 (“PC Sooknanan”) and other

members of the Eastern Division of the police service. The officers were proceeding to a

marijuana eradication exercise in the Rio Claro district.

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10. Upon reaching the vicinity of Cascadoux Trace, the officers encountered the truck proceeding

in the same direction in front of the police bus. The truck was driving at a very slow speed

and occupying the majority of the roadway. PC Vialva decided to overtake the truck and

sounded his horn to indicate his intention. However the driver of the truck did not respond

causing PC Vialva to sound his horn repeatedly for a few minutes. The driver of the truck

then moved to the left of the road which permitted PC Vialva to cause the police bus to

slowly overtake the truck.

11. Whilst overtaking the truck, the aforesaid police officers in the police bus observed that the

driver of the truck was holding a mobile device to his right ear and they brought this to PC

Vialva’s attention. PC Vialva caused the police bus to stop a short distance in front of the

truck and he signaled to the driver of the truck to come to a stop by extending his arm. The

driver complied and came to a stop. The officers did not block the entire roadway.

12. PC Vialva then alighted from the police bus along with the above named officers. PC Vialva

and PC Baran approached the truck and identified themselves to the driver by showing him

their Trinidad and Tobago Police Identification Card. The other named officers stood a few

feet away. The driver of the truck identified himself as the Claimant. PC Baran then informed

the Claimant of the officers’ observation and enquired whether he had authorization to use

his handheld mobile device while driving. The Claimant answered in the negative.

13. PC Baran informed the Claimant of the offences of unnecessary obstruction and using a

handheld mobile device while driving. He then cautioned the Claimant who remained silent.

PC Baran then requested the Claimant’s driver’s licence and insurance which were found to

be valid. PC Baran informed the Claimant of his intention to proceed against him by way of

summons for the offences of unnecessary obstruction and driving whilst using a handheld

mobile device. PC Baran returned the Claimant’s documents and he again cautioned the

Claimant to which he replied “Heh heh heh yuh eh hear meh name, I is Bhagwandeen boy.”

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14. The above named police officers returned to the police bus and PC Vialva proceeded to the

Mayaro Police Station where he made a report. Sometime later PC Baran laid Complaints

without Oath at the Mayaro Magistrate’s Court for the above mentioned offences. No fixed

penalty ticket was issued to the Claimant at the time of the incident since the police officers

did not have a fixed penalty notice book in their possession at that time. Sergeant Hosein

Regimental No. 12692 (“Sergeant Hosein”) of the Mayaro Police Station investigated the

report made by the Claimant. He interviewed PC Renaud who provided a written report

which indicated that he was not involved in the incident as alleged by the Claimant. He also

stated that he did not know the Claimant; on 18th May, 2012 he was assigned to the Biche

Police Station; he was not on duty on the day and time of the alleged incident and he was not

on the Manzanilla Road at the time of the date as alleged by the Claimant.

15. Sergeant Hosein also met with Leon Bartholomew whom the Claimant alleged had given him

$6,000.00 to purchase materials for him. Mr. Bartholomew indicated that he usually

purchased materials from the Claimant and his father and that he had given them some

money a few days before the alleged incident but was unaware if the Claimant had the said

money with him on the day of the alleged incident. Mr. Bartholomew also indicated that he

could not remember how much money he had given to the Claimant to purchase the

materials. He further stated that the Claimant never told him anything about the money being

stolen and that he had received the material that he had paid for. Mr. Bartholomew declined

to give a written statement.

16. Sergeant Hosein met with Dr. Bodoe on 27th September, 2012 who indicated that the

Claimant consulted him on 22nd May, 2012 complaining of persistent chest pains. Dr. Bodoe

also indicated that there were no visible signs of injury on the Claimant. However, Dr. Bodoe

was unable to provide a copy of the medical report issued to the Claimant to Sergeant Hosein

and he declined to give a written statement.

17. Based on the pleadings it was not in dispute that on 18th May, 2012 at approximately 8:00 am

the Claimant was driving the truck along Manzanilla Roadway in the direction towards

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Mayaro. The Claimant slowed the truck, pulled to the extreme left of the roadway and

stopped to permit the police bus to overtake him due to the narrowness of the roadway. After

the police bus overtook the truck it pulled in front of the truck. The driver of the police bus

exited it. The Claimant proceeded to the Mayaro Police Station where he made a report. The

Claimant was given a Trinidad and Tobago Service Complaint Form which he completed and

dated 18th May, 2012 and in which he gave particulars of the alleged incident. The Claimant

sought medical attention at the Mayaro District Health Facility and also made a report to

Police Complaints Authority.

18. However based on the material differences in the two versions it is either the Claimant

fabricated his version or all five (5) witnesses for the Defendant concocted an elaborate plan

which did not place PC Renaud at the place of the alleged incident.

19. Based on the different version of the events the issues to be determined by the Court are:

i. Did PC Renaud assault and batter the Claimant on the 18th May, 2012?

ii. Did PC Renaud and other police officers as servants and/or agents of the Defendant

convert the Claimant’s property in the sum of $6,000.00 on the 18th May , 2012?;

iii. Is the Claimant’s claim for constitutional redress properly included in this claim

and if so, was his right under section 4 (a) of the Constitution breached? If so,

should the Claimant be awarded damages for the said breach?

iv. If the Defendant is found liable for the torts of assault and battery and detinue

and/or conversion, what is an appropriate award of damages to compensate the

Claimant?

v. If damages are awarded, what are the appropriate rates of interest to be awarded on

such sums?

20. It was common ground that there were substantial disputes of facts in the instant matter.

Indeed the determination of liability concerned the Court finding which version of the events

from the evidence of the witnesses was more likely. In Winston McClaren v Daniel Dickey

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and ors 1 Rajnauth–Lee J (as she then was) repeated the approach the Court should adopt

where there are different versions of the events as:

“12. Where there is an acute conflict of evidence, the Judicial Committee of the Privy

Council has laid down the following principles in the case of Horace Reid v Dowling

Charles and Percival Bain Privy Council App. No. 36 of 1987. At page 6, Lord

Ackner delivering the judgment of the Board examined the approach of the trial judge”:

“Mr James Guthrie, in his able submissions on behalf of Mr Reid, emphasized to their

Lordships that where there is an acute conflict of evidence between neighbours,

particularly in rights of way disputes, the impression which their evidence makes upon

the trial judge is of the greatest importance. This is certainly true. However, in such a

situation, where the wrong impression can be gained by the most experienced of judges

if he relies solely on the demeanour of witnesses, it is important for him to check that

impression against contemporary documents, where they exist, against the pleaded case

and against the inherent probability or improbability of the rival contentions, in the light

in particular of facts and matters which are common ground or unchallenged, or

disputed only as an afterthought or otherwise in a very unsatisfactory manner. Unless

this approach is adopted, there is a real risk that the evidence will not be properly

evaluated and the trial judge will in the result have failed to take proper advantage of

having seen and heard the witnesses.”

13. Accordingly, the trial judge must check the impression that the evidence of the

witnesses makes upon him against

(i) contemporary documents, where they exist;

(ii) the pleaded case; and

(iii) the inherent probability of improbability of the rival contentions.

14. The Judicial Committee of the Privy Council adopted a similar approach in the case

of the Attorney General and another v Kalicklal Bhooplal Samlal (1987) 36 WIR

382. Lord Ackner who delivered the judgment of the Board made the following

statement at page 387:

“The trial judge may well have reached his decision entirely as a result of the

impression made upon him by the manner in which the witnesses gave their evidence.

1 CV 2006-01661, unreported

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Indeed, it is difficult to draw any other conclusion. But a judge must check his

impression on the subject of demeanour by a critical examination of the whole of the

evidence (see Yuill v Yuill [1945] P 15 at page 20). In this case the Court of Appeal

were fully entitled to conclude that he did not balance demeanour against the rest of the

evidence and had thus not taken proper advantage of having seen and heard the

witnesses. It is essential when weighing the credibility of a witness to put correctly into

the scales the important contemporaneous documents (the brochure and the letter of

12th October 1981) and the inherent improbability, as the Court of Appeal percipiently

pointed out, that the licence would have been granted without samples of those tiles

which were not depicted in the brochure, being produced. Thus the balancing operation,

which is of the very essence of the judicial function, was not properly carried out.”

(Emphasis added)

Did PC Renaud assault and batter the Claimant on the 18th May, 2012?

21. It was common ground that the learning of Des Vignes J in Youk-See, Youk-See and

Baptiste v The Attorney General of Trinidad and Tobago2 is an accurate reflection of the

law on the torts of assault and battery. Des Vignes J stated:

“71. In relation to the tort of assault and battery, Halsbury’s Laws of England, [Volume

26 (2010) at para. 157] states as follows: “A person commits an assault if he

intentionally or recklessly causes another person to apprehend the application to his

body of immediate, unlawful force. An assault can be committed by words alone if they

cause the necessary apprehension. The requirement of the apprehension of immediate

force is satisfied if the prosecution proves a fear of force at some time not excluding the

immediate future.

A person commits a battery if he intentionally or recklessly applies unlawful force to

the body of another person. The slightest degree of force, even mere touching, suffices.

It is not necessary that the victim should feel the force through his clothes: a touching

of a person's clothes is the equivalent of touching him…

2 CV 2011-04459

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Although an assault is a separate, independent crime and should be treated as such, for

practical purposes the term 'assault' is generally synonymous with 'battery' and is used

to mean the actual use of unlawful force to another person with the requisite mens

rea…”

72. In Skinner v The Attorney General of Trinidad and Tobago, [HCA No. CV 2006-

03721] Pemberton J. stated that both assault and battery are actionable per se, which

means that once its occurrence is established, the Claimant is entitled to compensation

even if no actual damage was suffered.”

22. The tort of assault and battery is actionable per se and therefore the Claimant need not prove

damage. It is sufficient on a balance of probabilities, if the Claimant proves that he was

assaulted and/or battered by the agents and/or servants of the Defendant. In the instant case,

the onus was on the Claimant to establish on a balance of probabilities that he was assaulted

and battered by PC Renaud.

23. There were two aspects of the Claimant’s case which were critical in him discharging the

onus on him. He had to prove on a balance of probabilities that PC Renaud was the driver of

the police bus on the 18th May 2012 at 8:00 am and that PC Renaud assaulted and battered

him as he asserted. I will first deal with the assertion that PC Renaud was the driver of the

police bus.

24. The Claimant averred that PC Renaud was the driver of the police bus on the morning of the

18th May, 2012 when he was stopped on the Manzanilla Road and that PC Renaud was the

officer who assaulted and battered him. He confirmed this position in his witness statement

and he described PC Renaud as a “dark African officer”.

25. The Claimant’s pleaded case is silent on the presence of PC Vialva, PC Baran, PC Manna,

PC Nanan and PC Sooknanan as being among the party of officers whom he encountered on

the 18th May 2012 on the Manzanilla Road. The Claimant’s evidence at paragraph 15 of his

witness statement was that he saw PC Vialva ‘and some young police officers’ whom he did

not know when he went to the Mayaro Police Station at or around 9.20 am on the said day.

When questioned as to the relevance of this statement under cross-examination and what

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made the presence of these police officers stand out from any other officers in the Mayaro

Police Station at the time, the Claimant stated that ‘they were present at the scene of the

incident.’ Later in cross-examination he admitted that he had gotten the names of the other

officers namely PC Vialva, PC Manna, PC Baran and PC Sooknanan since 2012 but that

when he filed the claim he did not include this information in his Re-Amended Statement of

Case nor in his witness statement, and he offered no plausible explanation for this glaring

omission.

26. In The Attorney General of Trinidad and Tobago v Anino Garcia3, the Court of Appeal

stated that any deviation by a Claimant from his pleaded case immediately calls his

credibility into question. In my view the failure by the Claimant to include this important

information in his Re-Amended Statement of Case and his witness statement is a material

omission which undermined the credibility of his evidence that he was attacked by PC

Renaud as he alleged.

27. The Claimant’s evidence was that he was assaulted and battered in the presence of other

motorists but he did not bring any other witness to give evidence of the assault and battery in

question. The Claimant’s only other witness was his father, Mohanlal Bhagwandeen,

(“Mohanlal”) a retired police officer.

28. According to Mohanlal’s evidence he knew PC Renaud very well and on the morning of the

18th May 2012 at around 4.00 am he saw PC Renaud driving the police bus on his way out of

Rio Claro and again at 8.45am he saw PC Renaud driving the police bus in the vicinity of

Agostini Village, when Mohanlal was on his way to Mayaro to meet his son.

29. Under cross-examination, Mohanlal’s evidence was he knew PC Renaud for 15-20 years

prior to the date of the incident from seeing him do extra duties but he had never worked

directly with him. He stated that on the 18th May 2012 at around 4:00 am he saw PC Renaud

driving a small police bus TCC 6871 (“the other police bus”) in Rio Claro and that he again

saw him around 10:50 am at the Rio Claro Police Station. Mohanlal admitted that he did not

3 Civ. App. No. 86 of 2011 at paragraph 31

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see PC Renaud assault the Claimant and he has asked the Court to infer that PC Renaud

assaulted the Claimant. Notably there was no evidence from Mohanlal that when his son

informed him of the alleged incident that his son told him that it was PC Renaud who had

assaulted him. Further, Mohanlal stated in cross-examination that at the Mayaro Police

Station the Claimant told him that PC Vialva and the other aforesaid officers were involved

in the incident. When questioned why the Claimant did not name the said police officers in

his Re- Amended Statement of Case his response was the Claimant did not know their names.

30. Mohanlal was also questioned on the number of vehicles he observed on the morning of the

18th May, 2012 between 4.00 am and 8.45 am and he answered ‘many vehicles – I wasn’t

checking. I saw many vehicles’. He accepted that prior to 8.15 am he was unaware of the

incident which had allegedly occurred between his son and police officers on the Manzanilla

Road and that before 10.15 am he had no knowledge that PC Renaud was the driver of the

police bus who, according to the Claimant, had assaulted him.

31. When questioned why the police bus stood out to him, amongst all the other vehicles he had

seen, between 4.00 am and 8.45 am that morning, Mohanlal’s sole response was that it stood

out ‘because it was the police bus.’ In my view this was not a plausible explanation as to

why the police bus and PC Renaud had stood out to Mohanlal long before the Claimant

informed him of the alleged incident since there was nothing remarkable about it.

32. Further, the station diary extract for the Rio Claro Police Station for the 18th May, 2012

which was produced by Mohanlal as “M.B.2”4 to his witness statement contradicted his

evidence since it contained no record to support the Claimant’s contention that PC Renaud

left driving the police bus on the morning of the alleged incident. Counsel for the Defendant

showed the said station diary extract to Mohanlal to demonstrate that PC Renaud was not at

the Rio Claro Police Station on the morning of the incident. Mohanlal’s response was that the

station diary extract was an incorrect record, but he acknowledged that he had requested the

said extract from the Rio Claro Police Station and that it was the Claimant who had tendered

it into evidence in this matter.

4 This station diary extract was also exhibited as “NB 1” to the Claimant’s witness statement.

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33. In my opinion Mohanlal’s evidence was not of any assistance to the Court since he did not

see PC Renaud assault the Claimant, which he admitted. He also admitted that he was asking

the Court to infer that it was PC Renaud who was involved in the alleged incident and that

the Claimant did not tell him that PC Vialva, PC Baran, PC Manna, PC Nanan and PC

Sooknanan were involved in the alleged incident. Further he failed to provide any plausible

explanation as to why the police bus and PC Renaud had stood out to him long before the

Claimant informed him of the alleged incident.

34. PC Renaud gave evidence before the Court on the incident. The Court observed that he can

be described as a “dark African officer”. He was of average height, medium built and slightly

smaller in stature as compared to that of the Claimant.

35. PC Renaud’s evidence was that he was not the driver of the police bus at the material time.

According to his witness statement he worked the daylight shift on the 17th May 2012 which

was 8:00 am to 6:00pm and the night shift on the 18th May 2012 when he reported to the Rio

Claro Police Station at 6:30 pm and he worked until 8 am on the 19th May 2012. He could

not recall what he did when he was off duty on the 18th May 2012 but he stated that he was

not involved in any police work when he was off duty. Under cross-examination, PC Renaud

was not able to recount with precision his whereabouts of the 18th May, 2012. At first he

stated that he was not on duty. Then he stated that on the morning of the 18th May 2012 at

4:30 am he used the other police bus to collect some police officers including ASP Lewis to

transport them to the wharf for 6:00 pm. According to PC Renaud he was in plain clothes and

he returned to the Rio Claro Police Station between 9:00 am to 10:00 am. This aspect of PC

Renaud’s evidence was consistent with Mohanlal’s evidence that he saw PC Renaud around

4:00 am on the morning of the 18th May 2012 and again at around 10:50 am at the Rio Claro

Police Station. Despite this evidence, he remained unshaken that he was not the driver of the

police bus on at the time of the alleged incident.

36. There was an attempt by Counsel for the Claimant to impugn PC Renaud’s credibility on the

closure of the Motorpol Division in 2010, and PC Renaud’s collection of a vehicle from

Motorpol in May 2012. However PC Renaud’s evidence in cross-examination was that it was

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the ‘garage section’ of Motorpol which closed in 2010. Further, the credibility of PC

Renaud’s evidence that he was assigned primarily to the repair of police vehicles pre-2010

and that thereafter, in the Eastern Division, he was assigned to assist primarily with driving

and with vehicular repairs, was not diminished by the questions posed to him by Counsel for

the Claimant with respect to the Standing Orders/Departmental Orders which permitted him

to function as a member of the Trinidad and Tobago Police Service in this manner.

37. Under cross-examination, the Defendant’s four (4) other witnesses were unshaken in their

evidence that PC Renaud was not the driver of the police bus at the material time. PC

Vialva’s evidence was that he was the driver of the police bus on the morning of the 18th May

2012. His evidence in cross-examination was that he was the most senior officer on the police

bus on the morning of the 18th May 2012 and that as far as he was aware, he was the only one

with the requisite class of driver’s permit and the necessary authorization from the

Commissioner of Police to drive the police bus that morning. PC Vialva having presented

himself for cross examination it was the Court’s observation that he cannot be described as a

“dark African officer.”

38. The evidence of PC Baran was that he sat opposite PC Vialva. PC Manna said he sat just

behind PC Vialva who was driving the police bus and PC Sooknanan stated that he was

sitting just behind PC Baran in the police bus which was driven by PC Vialva.

39. Therefore the Claimant’s evidence was that a “dark African officer” whom he later found out

to be PC Renaud was the driver of the police bus on the morning of the incident. The

Claimant did not tell his father Mohanlal at the Mayaro Police Station that PC Vialva and the

other aforesaid officers were involved in the alleged incident. When he called his father

Mohanlal to tell him about the alleged incident he did not inform Mohanlal that PC Renaud

assaulted and battered him. Mohanlal did not witness the alleged incident and he could not

provide a plausible explanation why he associated PC Renaud with driving the police bus on

the morning of the alleged incident at a time when he was unaware of it. The station diary

extract for the Rio Claro Police Station for the 18th May, 2012 produced as exhibit “M.B.2”

of Mohanlal’s witness statement contradicted Mohanlal’s evidence since it did not have any

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record to support the Claimant’s contention that PC Renaud left driving the police bus on the

morning in question.

40. On the other hand, PC Renaud’s unshaken evidence was that he was not driving the police

bus on the day of the alleged incident. The evidence of PC Vialva, PC Baran, PC Manna and

PC Sooknanan was that PC Vialva whom the Court cannot describe as a “dark African

officer” was the driver of the police bus on the morning of the 18th May 2012.

41. Therefore, the weight of the evidence was that PC Vialva was the driver of the police bus at

the material time, and not PC Renaud as alleged by the Claimant. In my view having

observed both PC Renaud and PC Vialva there were stark differences in their ethnicity, build

and stature and as a consequence, it was highly improbably that this was genuinely a case of

mistaken identity on the part of the Claimant.

42. The next aspect of the Claimant’s case is the allegations of assault and battery. The

Claimant’s particulars of assault and battery as set out at paragraph 11 of his Re-Amended

Statement of Case were PC Renaud:

(a) Blocked the path of the truck without lawful excuse and or justification;

(b) Pointed a loaded weapon at an unarmed Claimant who was attempting to comply

with the instructions given;

(c) Held on to the Claimant’s jersey neck and collared him, this squeezing his neck as

he was pulled out of the truck;

(d) Slapped the Claimant on this right side of his face;

(e) Kicked the Claimant in his chest area;

(f) Threatened to kill the Claimant saying “I is a different kinda police; you f**ker I

could kill you with my gun and no one can do anything, Is only police and you

here.”

43. According to the Claimant’s evidence, PC Renaud who was about five (5) feet five (5)

inches pointed his firearm at the Claimant’s head while the former was standing on the

ground. However, the Claimant’s evidence changed under cross-examination since he

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stated that he was sitting some six (6) feet off the ground in the truck and his head was

some seven (7) feet off the ground and that PC Renaud was standing on the first step of

the cab of the truck when he pointed his gun at the Claimant. The Claimant’s evidence in

his witness statement was highly improbable since if the Claimant was sitting in the truck

and PC Renaud was standing on the ground when he pointed his gun at the Claimant, PC

Renaud whom the Claimant said was approximately five (5) feet five (5) inches would not

have been able to reach the Claimant while standing on the ground. The truthfulness of

this aspect of the Claimant’s evidence was further undermined by the inconsistency of the

Claimant’s evidence between his witness statement and his evidence in cross-examination.

44. The Claimant also stated that PC Renaud collared him and pulled him out of the truck. In

cross- examination the Claimant explained that both of his feet were in the air and that he

held on to the handrail of the truck with one hand to maintain his balance, and to prevent

himself from falling. The Claimant admitted that there were two (2) steps to mount the

truck and each step was approximately 6 inches wide. He also stated that the two (2) steps

were not the same width since one was smaller but that a person could have comfortably

stand on the steps with both feet. On the Claimant’s version of events therefore, PC

Renaud was therefore strong enough to stand on the mounting steps, while grabbing and

holding on to the Claimant’s collar to pull him from the truck, in a manner that enabled PC

Renaud to take the Claimant’s weight upon him, without falling himself from the said

steps. Having observed PC Renaud who was slightly smaller than the Claimant in built

based on the Claimant’s evidence, it was highly improbable that PC Renaud stood on the

narrow steps available for mounting the cab of the truck, reached upward to the

Claimant’s neck and was able to grip his collar firmly enough to pull him down seven (7)

feet from the truck to the ground.

45. The Claimant’s evidence at paragraph 11 of his witness statement was that while the

driver continued to collar him with his jersey he felt that he would “pass out: from the

force used to collar him. He felt the driver let go of him and he felt that he could breathe.

But the driver slapped him hard on the right side of his face. He felt his eyes well up with

tears and his right ear felt like he could only partly hear and this lasted for 30 minutes

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When tested on his evidence of being slapped on the right side of his face resulting in a

temporary loss of hearing, the Claimant’s evidence was that PC Renaud was facing him

and slapped him with an open hand. The Claimant offered no answer when asked whether

he tried to block the slap or to defend himself. In my opinion given the Claimant’s version

of the alleged incident it is highly improbable that the Claimant did not try to defend

himself.

46. According to paragraph 11 of the Claimant’s witness statement after PC Renaud slapped

him he then kicked the Claimant with such force in his chest region that he felt backwards

on the ground leaving him breathless. At the same time he coughed and saw it was

something resembling blood in his mucus. He felt excruciating pains in the right side of

his face, chest and/or abdominal area. Under cross-examination, the Claimant maintained

that he was kicked while standing up. In my opinion in light of PC Renaud’s stature and

build it is highly implausible that PC Renaud lifted his leg to the height of the Claimant’s

chest and kicked him. Further the Claimant’s evidence was that after he fell backwards,

he stood up and that PC Renaud collared him again. The Claimant indicated that he did

not try to move away from PC Renaud after he fell. In my opinion, the Claimant’s

evidence was not plausible since if the Claimant genuinely feared for his safety he would

have attempted to move away from the driver of the police bus.

47. The medical evidence which the Claimant relied on also did not support his case. The

Claimant’s pleaded case particularised his injuries as:

(a) Trauma to the right side of the face and anterior chest wall;

(b) Persistent chest pains;

(c) Deep soft tissue injury;

(d) Medication prescribed.

48. The Claimant also pleaded that: he was unable to work for the rest of that day and had to hire

another driver to complete his tasks for a week; he suffered from nightmares for several

months and would wake up in the middle of the night suffering from cold sweats and after the

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alleged incident he has developed a feeling of mistrust towards police officers, becoming

anxious whenever he sees them for fear of them trying to shoot him.

49. In support of his claim, the Claimant produced two (2) medical report, one from the Mayaro

District Health Facility dated the 18th May 18, 2012 (“the Mayaro medical report”) which

formed part of the agreed bundle of documents and another from Dr. Chandradath Bodoe

dated 22nd May , 2012 (“the Bodoe medical report”)5.

50. The Mayaro medical report was the most contemporaneous medical evidence in these

proceedings. It indicated that the Claimant complained of pain to the right side of his chest

and face, but that upon examination, the attending doctor found no laceration or bruising. The

Claimant’s evidence was that he was prescribed Motrin (pain relief) for three (3) days. The

Mayaro medical report was silent on any laceration or bruising. There was also no evidence

that tenderness or swelling was observed by the examining doctor.

51. In my opinion it is significant that the attending doctor at the Mayaro District Health Facility

did not find any laceration, bruising, tenderness or swelling which would have been the case

if the Claimant’s version of the events were true. Indeed it appears to me that the Mayaro

medical report supports the Defendant’s assertion that the driver of the police bus did not

assault and batter the Claimant.

52. The Bodoe medical report stated that the Claimant consulted Dr Bodoe for persistent chest

pains which was diagnosed as deep soft tissue injuries, for which Arcoxia was prescribed (for

pain and inflammation) for five (5) days and Mydocalm (muscle relaxant) for 3 days. There

was no indication of the examination conducted by Dr. Bodoe or the tests to which the

Claimant were subjected before a diagnosis was rendered. There was also no indication in the

Bodoe medical report that the Claimant presented with bruising, tenderness or swelling of the

chest or face, since they would have been noticeable symptoms consistent with the assault

alleged by the Claimant.

5 Exhibited as “ N.B 4”)

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53. I have therefore attached little weight to the Bodoe medical report since Dr. Bodoe did not

attend for cross-examination and there was no opportunity to test the evidence contained in

the Bodoe medical report. Further, the Bodoe medical report was prepared some five (5) days

after the alleged incident therefore any injuries complained of by the Claimant to Dr. Bodoe

as recorded in the Bodeo medical report, cannot, with any certainty, be linked to the alleged

incident on the 18th May 2012.

54. The extent of the Claimant’s injuries was test in cross-examination. He agreed with Counsel

for the Defendant that a loss of hearing albeit temporary, as well as coughing up what

appeared to be blood in his mucus, feeling breathless, falling backwards after being kicked,

were significant events, and were possibly indicative of internal injury. However, he

confirmed that he failed to tell the doctor at the Mayaro District Health Facility of these

occurrences. The Claimant also indicated that this doctor did not send him for X-rays or CT

scans, and he accepted that although he felt dissatisfied with the medical treatment received

at the Mayaro District Health Facility, he failed to visit another doctor on the same day. In

my opinion if the Claimant had suffered the injuries he alleged and he was not satisfied with

the medical treatment he had received at the Mayaro District Health Facility he would have

sought further medical treatment immediately thereafter.

55. Even the sequence of the Claimant’s action were not consistent with the extent of the injuries

he portrayed as having sustained which undermined the credibility of his evidence and it

demonstrated that his allegation of the assault and battery were not plausible. The Claimant’s

evidence was that immediately following the alleged incident, and prior to attending the

Mayaro Police Station and the Mayaro District Health Facility, he had the composure to

proceed to Grand Lagoon Village to offload the load of gravel he was carrying which entailed

him descending from the cab of his truck, un-hooking the tarpaulin which covered the tray of

his truck and then climbing back into his truck to mechanise the offloading of the gravel. He

then went to the Rio Claro Police Station with his father around 10.00 am that morning,

approximately two (2) hours after the alleged incident. In my opinion, if the Claimant’s

injuries were as severe as he alleged he would not have been physically able to offload the

load of gravel from his truck before seeking medical treatment and before proceeding to the

Mayaro Police Station to make a report.

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56. The Claimant’s evidence under cross-examination was that he took Motrin for three (3) days

but that it failed to relieve his pain and he remained in excruciating pain. However, the

Claimant only went to Dr. Bodoe some 5 days after the alleged incident, and that on his

account he went an entire day without any pain relief medication on the basis that he thought

‘it would have eased.’ The Claimant indicated that he told Dr. Bodoe about his temporary

loss of hearing and about coughing up blood with his mucus, but he accepted that Dr. Bodoe

did not send him for an X-ray or CT scan and that the Bodoe medical report did not reflect

his assertions.

57. The Claimant’s evidence was also that he did not receive any continued medical care from

Dr. Bodoe or any other doctor after the 22nd May 2012 despite experiencing continued

tenderness of his face, excruciating pain in his chest and abdomen for a month and a half

after the incident, and an inability to lift heavy objects up to January 2016. The Claimant

further stated that despite experiencing emotional distress, dreaming of the incident and

consequent interrupted sleep, he did not visit a psychiatrist or psychologist for any treatment

to alleviate same. Again this aspect of the Claimant’s evidence was not credible since if he

was in so much pain and trauma he would have sought further medical attention.

58. The Claimant’s evidence was that he was so traumatised by the actions of PC Renaud and the

other police officers on the morning of the 18th May 2012 that he is fearful of police officers.

If this is so, there was no plausible explanation by the Claimant to account for him

proceeding on the same morning to the Rio Claro Police Station after he made a report at the

Mayaro Police Station of the alleged incident.

59. Before I leave the issue of the alleged assault, I will address the submission made by

Counsel for the Claimant that he was ‘calm and collected during the entire ordeal’, except

what was said by PC Baran. The Claimant’s submission that he was ‘calm and collected

during the entire ordeal’, appeared to be based solely on the answer of PC Manna given

under cross-examination to the non-specific question of ‘How did you find his demeanour?’

The said question was not phrased as time specific and none of the Defendant’s other three

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(3) witnesses who were present on the morning of the alleged incident were questioned on

their impressions of the Claimant’s demeanour.

60. Under cross-examination, PC Baran was consistent with his witness statement. His evidence

was that the Claimant responded ‘Heh heh heh yuh hear meh name is Bhagwandeen, boy’

which he found to be disrespectful, after being informed of PC Baran’s intention to proceed

against him by way of summons for the offences of unnecessary obstruction and driving

whilst holding a handheld device and cautioned a second time. PC Baran was very specific

that this was the Claimant’s response at a particular time in the course of his interaction with

him.

61. Further, PC Vialva, PC Sooknanan and PC Manna all stated in their witness statements that

they heard the Claimant respond in this manner, but none of them were tested on this

evidence under cross-examination. In my opinion, the evidence in this matter did not support

the Claimant’s submission when considered as a whole since the Claimant, having failed to

challenge this under cross-examination, cannot now submit that this evidence is to be

disbelieved.

62. Lastly, it was also submitted on behalf of the Claimant that the response to his request made

under the Freedom of Information Act6 in June 2012 by Sergeant Jankee dated the 18th July

2012 which formed part of the response issued by the Commissioner of Police which stated

that ‘I also made checks in the Station Diary for any entry relating to that incident involving

any Police Officers but did not find any,’ warrants concern.

63. In my opinion there is nothing unusual in the said response to raise any concern. The request

made by the Claimant under the FOIA was framed:

“Copies of any reports, statements, findings or any other document/ information with

respect to the assault of Neil Bhagwandeen on 18/5/12 by the driver of TCC 4048 and

the theft of $6000 and by two unknown police officers on the said date. The said

incident occurred at about 8am and was reported to the Mayaro Police Station.”7

6 Chapter 22:02 7 Claimant’s Amended Reply as Annex 1 (page 193 of the trial bundle)

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64. Entry no. 3 in the certified station diary extract from the Mayaro Police Station for the 18th

May, 20128 upon which PC Vialva was cross-examined shows that there was no reference

to any assault upon the Claimant and to any alleged theft of $6000.00. Therefore, Sergeant

Jankee’s response clearly reflected what was found.

65. In any event, Sergeant Jankee was not called to give evidence so the Court did not have the

benefit of an explanation from him as to the contents of the letter dated 18th July 2012 for it

to cause the Court to be concerned.

66. For the aforesaid reasons, I have concluded that the Claimant has failed to establish on a

balance of probabilities that PC Renaud was the driver of the police bus on the 18th May,

2012 and that PC Renaud assaulted and battered him when stopped by the police along the

Manzanilla Road on that day. Therefore his claim for damages for assault and battery fails.

Did PC Renaud and other police officers as servants and/or agents of the Defendant

convert the Claimant’s property in the sum of $6,000.00 on the 18th May, 2012?

67. In Youk-See, Youk-See and Baptiste v The Attorney General of Trinidad and Tobago

Justice A. Des Vignes stated detinue and conversion encompassed:

“118. According to Clerk & Lindsell on Torts [13th Edition (1969) No. 3]:

“The gist of liability in detinue is the wrongful detention of the plaintiff’s chattel. The

action was available against a defendant … who withheld the plaintiff’s chattel after the

plaintiff had demanded its return. The principal object of the action was to recover the

value of the chattel so detained…” [Ibid – para. 1072.]

“Conversion is an act of deliberate dealing with a chattel in a manner inconsistent with

another’s right to his possession or his right to the possession on it. To be liable the

defendant need not intend to question or deny the plaintiff’s rights; it is enough that his

conduct is inconsistent with those rights. [Ibid – para. 1077].”

119. In the Court of Appeal decision of Rattansingh v The Attorney General of

Trinidad and Tobago and Doopan (which was later approved by the Privy Council

(2004) UKPC 15 – PCA No. 41 of 2003) Warner JA stated as follows: [CA Civ No.

8 Page 783 of the trial bundle

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105 of 2000].

“The claim in detinue

This action lies at the suit of a person who has an immediate right to the possession of

the goods against a person who is in possession of the goods and who on proper

demand, fails or refuses to deliver them up without lawful excuse. (See dictum of

Donaldson J. in Alicia Hosiery v Brown Shipley and Co. Ltd. [1969] 2 All E.R. 504 at

510). I think this aptly encapsulates the relevant law.

The claim in conversion

To constitute conversion, there must be a positive wrongful dealing with the goods in a

manner inconsistent with the owner’s rights and an intention in so doing to deny the

owner’s rights or to assert a right inconsistent with them. The gist of the action is

inconsistency. There need not be any intention to challenge the true owner’s rights. A

demand and refusal is sufficient evidence of conversion.”

68. The determination of this issue is one of fact which is to be resolved on a balance of

probabilities.

69. The Claimant’s pleaded case in relation to the retrieval of his wallet was as follows:

(a) While being searched by PC Renaud, two (2) other officers, including one (1) of

African descent (‘the second African officer’) entered the truck and searched it;

(b) the second African officer entered the truck on the driver’s side and exited with

the Claimant’s wallet and cellular phone (singular) and proceeded to the back of

the truck;

(c) After sometime, the second African officer handed the items (wallet and cellular

phone) to PC Renaud;

(d) PC Renaud returned the Claimant’s belongings to him and the Claimant checked

his wallet in the presence of the officers and observed the $6,000.00 to be

missing;

(e) The Claimant enquired of PC Renaud and the officer who went to the back of the

truck about his money, but both feigned ignorance in respect of same.

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70. The Claimant’s evidence was however inconsistent with his pleaded case. The Claimant’s

witness statement filed on the 27th January 2016 stated that :

(a) The second African officer entered the truck on the driver’s side and subsequently

exited with the Claimant’s brown leather wallet and two (2) black Nokia cellular

phones;

(b) The second African officer gave the other police officer who was searching the

left side of the truck ( the ‘left-side officer’) the wallet and cell phones;

(c) The left-side officer proceeded toward the back of the truck;

(d) After sometime, the second African officer handed the Claimant’s wallet and cell

phones to PC Renaud.

71. There were two notable inconsistencies between the Claimant’s pleaded case and his witness

statement. The Claimant made a specific allegation against “the left side officer” when this

did not form part of his pleaded case. Further, the Claimant embellished his evidence to

indicate that two (2) and not one (1) cellular phone was removed from the truck. In his

pleaded case he had stated one (1) cellular phone was removed from the truck. Indeed the

Claimant’s witness statement change the movement of the Claimant’s wallet from the second

African officer to PC Renaud, as in the pleading, to the second African officer to the left side

officer who then gave it to PC Renaud.

72. It was submitted on behalf of the Claimant that the aforesaid inconsistencies were a “mix-

up”. I do not accept this submission. In my view, the aforesaid material inconsistencies

further undermined the Claimant’s credibility and weakened the reliability of his evidence

that on his assertion that the police officers on the day of the alleged incident took the sum of

$6,000.00 from him.

73. In addition to the aforesaid weakness in the Claimant’s evidence on this issue there were

other aspects of his evidence on this issue which did not make the Claimant’s evidence on

this issue plausible. The Claimant’s evidence was that on the morning of the alleged incident

he had $7,700.00 in his wallet for the purchase of 5 loads of gravel, and at the time of

encountering PC Renaud and the other police officers in the police bus he had 1 load of

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gravel in the tray of his truck, and the sum of $6,000.00 in cash in his wallet. Under cross-

examination, the Claimant’s evidence was that:

(a) his wallet was a wallet with two (2) pouches which folded over;

(b) the $6,000.00 he was carrying was comprised of 60 $100 bills;

(c) his wallet was able to close with the 60 $100 bills in it;

(d) that $6,000.00 was not a large sum of money to be carrying in cash;

(e) the $6,000.00 was to purchase material for Mr. Bartholomew;

(f) The Claimant never told Mr. Bartholomew that the $6000.00 had been taken by

the police;

(g) Mr. Bartholomew subsequently received the material for which he had paid the

Claimant;

(h) The Claimant used his own money to purchase the material for Mr. Bartholomew

but did not include this in his witness statement.

74. The Claimant did not give evidence of the dimension of the wallet but he described it as

having two pouches and folding over. In my opinion it is highly improbable that the

Claimant’s wallet held 60 $100.00 bills at the material time and that the wallet was able to

close while holding such a quantity of cash.

75. Further, the Claimant admitted in cross-examination that he had not informed Mr.

Bartholomew that his money was stolen, but that Mr. Bartholomew subsequently received the

material which he had ordered from the Claimant. Notably the Claimant’s witness statement

was silent on the fact that he had to use his own funds to purchase the material in question

Under cross-examination, the Claimant indicated that he was ‘not sure’ why such an

important matter of him using his own funds to pay for Mr. Bartholomew’s material was not

included in his witness statement. In my opinion, the omission by the Claimant to state such

an important matter in his witness statement raises grave suspicion as to the truthfulness of

the Claimant’s assertion on this issue. If the police officers on the morning of the alleged

incident had indeed taken the $6,000.00, it is reasonable to assume that one of the actions the

Claimant would have taken after the incident was to inform Mr Bartholomew what had

happened to his money in the alleged incident.

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76. Therefore, the Claimant’s evidence on the quantity of cash in his wallet on the morning of the

alleged incident and the subsequent receipt by Mr. Bartholomew of the material previously

ordered from the Claimant, also raise questions as to the plausibility of the Claimant’s

contentions.

77. In light of the aforesaid, the Claimant has failed on a balance of probabilities to discharge the

burden of proof in establishing that the sum of $6,000.00 was taken by PC Renaud and other

police officers from his wallet during the alleged incident on the Manzanilla Road on the

morning of the 18th May 2012.

78. Therefore the Claimant’s claim for detinue and/or conversion also fails.

Is the Claimant’s claim for constitutional redress properly included in this claim and if

so, was his right under section 4 (a) of the Constitution breached? If so, should the

Claimant be awarded damages for the said breach?

79. At paragraph (b) of the prayer of the Amended Claim Form and Re-Amended Statement of

Case the Claimant included a claim for constitutional redress for breach of the Claimant’s

constitutional right to security of the person pursuant to section 4(a) of the Constitution of the

Republic of Trinidad and Tobago.

80. Section 4(a) of the Constitution provides:

‘4. It is hereby recognised and declared that in Trinidad and Tobago there have existed

and shall continue to exist, without discrimination by reason of race, origin, colour,

religion or sex, the following fundamental human rights and freedoms, namely–

(a) the right of the individual to life, liberty, security of the person and enjoyment of

property and the right not to be deprived thereof except by due process of law;’

81. Section 14(1) of the Constitution provides:

‘14. (1) For the removal of doubts it is hereby declared that if any person alleges that

any of the provisions of this Chapter has been, is being, or is likely to be contravened in

relation to him, then without prejudice to any other action with respect to the same

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matter which is lawfully available, that person may apply to the High Court for redress

by way of originating motion.’

82. In my opinion, the Claimant’s claim for relief under the Constitution in the instant action is

misplaced and ill-conceived for the following reasons.

83. Firstly, Parts 8.1(4)(d) and 56.7(1)(b) and (2) of the Civil Proceedings Rules 1998 as

amended (‘CPR’), expressly provide that an application for an administrative order, which

includes claims filed under section 14(1) of the Constitution, must be made by a fixed date

claim and in the case of a claim under section 14(1) shall be headed “Originating Motion.”

The Claimant’s claim therefore having been commenced by way of regular claim form set

out as Form 1 to the CPR therefore stands as a procedural irregularity in claiming such relief.

84. More importantly, the conduct which the Claimant complains of in the instant claim can be

adequately addressed by an application to the Court under its ordinary non-constitutional

jurisdiction. In the Privy Council case of Antonio Webster v The Attorney General of

Trinidad and Tobago9, the appellant appealed against an order of the Court of Appeal

dismissing the appellant’s earlier appeal against an order made by Pemberton J striking out

certain paragraphs seeking reliefs under the Constitution of 1976 from the prayer of the claim

form and statement of case in which the appellant also claimed damages for false

imprisonment. The Privy Council dismissed the said appeal. In his judgment, Lord Wilson

stated the following at paragraphs 18 and 20:

“18. The principles… clearly suggest that it was wrong for the appellant to have

included the prayers for constitutional relief within his claim and certainly wrong to

have proceeded with them following service of the Defence…

20. The right decision was primarily to formulate his claim… as being for damages in

tort. The wrong decision was to include subsidiary claims for the three declarations:

for they were redundant.”

9 [2011] UKPC 22

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85. Having found that the Claimant has failed on a balance of probabilities to prove that on the

18th May 2012 PC Renaud assaulted and battered him the issue of damages does not arise.

Costs

86. It was common ground that the costs in this matter is to be determined on the prescribed scale

pursuant to Part 67 of the CPR. On the basis of his submissions, the Claimant has valued this

claim in the sum of $125,044.25, representing total damages in the sum of $108,500.00 plus

interest in the sum of $16,544.25. Costs on the value of the claim on the prescribed scale

therefore amounts to $27,757.00.

Order

87. The Claimant’s action is dismissed.

88. The Claimant is to pay the Defendant’s cost assessed in the sum of $27,757.00.

………………………………………

Margaret Y Mohammed

Judge

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