Winston Joseph Appellant v The Queen

JurisdictionSt Lucia
JudgeRedhead J.A,Byron, C.J.,Justice of Appeal,Chief Justice,Albert Redhead,Sir Dennis Byron,Satrohan Singh,Joseph Archibald,Dennis Byron
Judgment Date17 September 2001
Neutral Citation[2001] ECSC J0917-1
Judgment citation (vLex)[2001] ECSC J0917-9
CourtCourt of Appeal (Saint Lucia)
Docket NumberCRIMINAL APPEAL NO. 4 OF 2000 CRIMINAL APPEAL NO. 8 OF 2000 and CRIMINAL APPEAL NO. 7 OF 2000,CIVIL APPEAL NO. 24 of 2000
Date17 September 2001
[2001] ECSC J0917-1

IN THE COURT OF APPEAL

Before:

The Hon. Sir Dennis Byron Chief Justice

The Hon. Mr. Satrohan Singh Justice of Appeal

The Hon. Mr. Albert Redhead Justice of Appeal

CIVIL APPEAL NO. 24 of 2000

Between:
Craig Hartwell
Appellant
and
Kelvin Laurent
The Attorney General
Respondents
Appearances:

Mr. S. Bennett for the Appellant

Miss B. Aziz for the Respondents

Redhead J.A
1

The first-named respondent was a police constable in the service of the British Virgin Islands Police Force. He joined the Police Service on 2 nd July, 1992 and after a period of training for about six months he was first posted to Virgin Gorda Police Station. In April 1993 he was transferred from Virgin Gorda to Road Town, Tortola Police Station, "after the police learnt of a domestic incident involving the officer".

2

In fact that was the beginning of 19 charges against the first-named respondent in his 19 months career with the police.

3

As a result of these charges this led the learned trial judge to make the comment:

"The plaintiff sought to buttress the plaintiff's case by reference to the recorded misconduct of P.C. Laurent Collated from his date of establishment in the Force on 2 nd July, 1992 to 2 nd February, 1994 i.e. a period of 10 months. It is my considered view that the nineteen "charges of misconduct" in truth and in fact represent a history of minor misdemeanors/infractions which no way support the serious allegations set in paragraph 2 of the plaintiff's statement of claim, item No. 19 for example relates to the complaint made by Murphy Flavien at the Virgin Gorda Police Station on the night of the 16 th January, 1994 where P.C. Laurent allegedly threatened to kill him over his relationship with his girlfriend. P.C. Laurent was at the time stationed at West Police Station."

4

It was with item 19 in fact that the appellant through his Counsel took serious issues as well as other issues with the learned trial judge's findings of the facts and inferences which he has drawn from those facts. For, learned Counsel contended that facts are not in dispute but he took issue with the judges inferences of the facts and of course his application of the law to those facts. It is quite obvious that learned Counsel is asking this court to draw different inferences from those drawn by the learned trial judge. I must bear in mind the injunction laid down in this regard. [See Bennax v Austin Motor Co. Ltd (1955) 1 ALL ER 326 at 329]

5

To encapulsuate the facts in this matter they are, the first appellant joined the British Virgin Islands Police Force on 2 nd July, 1992. After his enlistment he was sent for training. The record shows that he had some infractions with the commandant while in training school. After graduation he was first posted to Virgin Gorda Police Station and was transferred from there to Tortola because he was involved in a domestic dispute.

6

As I have said the learned trial judge said that there was nineteen minor "misdemeanors" I shall concentrate on the more serious of those. On 16 th January, 1994 the police had a report by Murphy Flavian of Virgin Gorda that on the night of 16 th January, 1994 the first-named respondent in a house in Virgin Gorda threatened to kill him over his (Flavian's) relationship with the first respondent's girlfriend.

7

On 1 st February, 1994 complaint was made to the senior officer of the first-named respondent that the latter was seen walking in the public street in Jost Van Dyke with a police service revolver in his waist without permission.

8

These are the serious incidents which the appellant pointed to and argued that this ought to put the police authorities on notice that the first-named respondent is a person of violent disposition and should never be entrusted with or given possession of a firearm as he was likely to use it to endanger not only the lives of Murphy Flavian and Lucy Ann La Fond but also those in close proximity with them.

9

The facts are as the learned trial judge himself found:

"The undisputed evidence is that on the night in question (2 nd February, 1984) P.C. Laurent who was the only police officer stationed on the island of Jost Van Dyke left the sub station armed with a police service revolver and ferried to Virgin Gorda where he entered the Bath and Turtle Pub in the valley and fired a number of shots in the crowded building and wounded a number of persons including visitors as well as employees of the Pub including the plaintiff who himself a visitor seated at the time at the bar where he was struck and seriously injured by a bullet from the said firearm by P.C. Laurent".

10

To complete the evidential picture in order to understand the legal landscape from which the appellant mounted his legal assault, I must perforce refer to the evidence of Station Sergeant Fahie who was at the material time the immediate supervisor of the first-named appellant. Sergeant Fahie testified that as a result of a conversation which he heard while at his residence at Sea Cows Bay, he proceeded with Inspector Glasgow to Jost Van Dyke, accompanied by another police constable. He said that he arrived at Jost Van Dyke Police Station at about 2.30 a.m. on 3 rd February. He then discovered that police vehicle V189 was parked in front of the police station compound with all its doors locked. The police station was also locked with all lights on. On calling out to Laurent, he said that there was no reply so he made a forced entry into the building by removing four louvers from an eastern window.

11

On checking inside he said that he discovered a brown padlock on a strongbox. The station key to the strong box and the keys to the jeep were together. Sergeant Fahie said he did not see the keys to the station so he took a hard object and broke off the padlock of the strongbox only to observe that the police service revolver, the holster and the rounds of ammunition were missing.

12

The gravamen of the appellant's case is that the appellant was, as is said above, seriously injured as a result of the indiscriminate shooting by the first-named appellant in an attempt to, at least injure his girlfriend, Lafond and her paramour Murphy Flavian.

13

The first-named respondent was the lone, officer stationed at Jost Van Dyke Police Station and put in possession of a fireman and ammunition with which he seriously injured the appellant.

14

The appellant's action in the High Court for damages for the injuries which he suffered was dismissed.

15

In dismissing the appellant's action Georges J said that:

"In my judgment there was no foresight, no proximity and therefore no liability on the part of the defendant. In deed there was no breach of the duty of care by the defendant. Apart from vicarious liability (which has not been proven) a person is not responsible for the actions of a third party in the absence of special relationship."

16

The learned judge having "gratefully and respectfully" adopted the reasoning in Hill v. Chief Constable of West Yorkshire 1988 2 ALL ER.238 Held that on the facts of this case there was no reason to believe that P.C. Laurent was liable to endanger the public in general and not a fit person to have custody of a police service revolver at Jost Dyke. The Forces Standing Order on the issue and use of firearm had worked satisfactorily in the past throughout the Virgin Islands and continue to do so. They impose a restriction on user which in his view is adequate given the circumstances.

17

Learned Counsel, Mr. Bennett argued on behalf of the appellant that having regard to the violent propensity of the first-named respondent, particularly in relation to Murphy Flavian and Lafond, a special relation arose. The appellant did not argue his case on the basis vicarious liability but on basis of a special relationship which existed between the first-named respondent and those whom he threatened and including persons who may be in close proximity to them.

18

Learned Counsel argued that the learned trial judge erred in law when he said at paragraph 37 that there was no proximity and therefore no liability. He argued that proximity is not limited to persons who are close to the tortfeasor [ Donohue v Stevenson- 1932 A.C. 562]

"Who is my neighbour?" Could not in my opinion be limited to persons only who are in Scotland but to person in the wider world who bought and drank the contaminated ginger beer and was affected by it. I therefore agree that proximity, in my view, cannot have a defined geographical boundary. It matters not whether he journeyed from Jost Van Dyke to Virgin Gorda to carry out his "nefarious activity" as the learned trial judge put it-In Swiney and Another v the Chief Constable of the Northumbria Police 1966 3 ALL ER. 449.

In that case the plaintiff passed on information to the police about the identity of a person implicated in the unlawful killing of a police officer. She gave information in confidence and requested that any contact with her be made in confidence by telephone. The police knew that the person was violent but nevertheless recorded the information in a document naming the first-named plaintiff as the informant.

19

The document which was left in an unattended police vehicle which was broken into by criminals was subsequently obtained by the person implicated. Thereafter the first plaintiff and her husband, the second plaintiff were threatened with violence and arson and suffered psychiatric damage. The plaintiffs issued proceedings against the chief constable alleging negligence in failing to keep the confidential information secure, on the basis that it was reasonably foreseeable that they might be harmed if the information was obtained by the criminal fraternity. The claim was struck out under RSC Order 18 R19 as disclosing no reasonable cause of auction and the plaintiffs appealed. The judge allowed their appeal holding that...

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