Dexter Noel v The Attorney General

• Jurisdiction: Grenada
• Judge: Glasgow, J.
• Judgment Date: 10 June 2022
• Judgment citation (vLex): [2022] ECSC J0610-1
• Docket Number: CLAIM NO. GDAHCV2014/0517
• Court: High Court (Grenada)
• Year: 2022

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Before:

The Hon. Mr. Justice Raulston L. A. Glasgow High Court Judge

CLAIM NO. GDAHCV2014/0517

Between:

Dexter Noel

Claimant

and

The Attorney General

Defendant

Appearances:

Mrs. Celia Edwards, QC with her Mr. Deloni Edwards for the Claimant

Mrs. Karen Reid-Ballantyne, Solicitor General, for the Defendant

Glasgow, J.

1 The claimant, Dexter Noel, (Mr. Noel) filed this claim in which he asserts that he was assaulted and battered by members of the Royal Grenada Police Force at a traffic checkpoint within the vicinity of the St. David's Police Station, Petite Esperance, Saint David.

Mr. Noel's case

2 Mr. Noel pleads that on 28 ^th April 2009 at approximately 8:00 pm he was driving from Grenville, Saint Andrew in the direction of Saint David in his minibus registration number HAA443. He claims that during his journey from Grenville, he encountered a police traffic checkpoint at Hope, Saint Andrew, where his minibus licence and registration were checked. Thereafter, he continued his journey until his last passenger departed at La Tante, Saint David leaving him and the conductor, Elwin Baptiste as the only occupants of the vehicle.

3 Mr. Noel further pleads that while driving towards the vicinity of the St. David's Police Station he decided to turn off into the road which is immediately before the police station to collect his family. When he attempted to turn into the road, he encountered another police traffic checkpoint near the police station. There was a vehicle in front of him which was being checked by the police. The vehicle being checked by the police blocked the entrance of the road into which he intended to divert. As a result, a police officer instructed him to drive into the police station yard so that the vehicle which was in front of him could be checked. Upon completion, the police officer directed Mr. Noel to proceed along to his destination. Mr. Noel went into the road immediately before the station and picked up his family.

4 Mr. Noel claims that after picking up his family and whilst driving towards the main road, a police officer Kaison Smith DC 927 (Officer Smith) stopped and informed him that he was checking for driver's licences and insurance. Mr. Noel says that he complied with the request. Although he obeyed Officer Smith's order requesting to see his licence, another officer Linus Augustus PC 587 (Officer Augustus) came and demanded to see his driver's licence. Mr. Noel states that he gave the Officer Augustus the driver's licence and remarked “if is my licence you want to see, look”. Mr. Noel explains that Officer Augustus was offended and replied “because you work with police you feel you know the law”. Mr. Noel replied “what you want with me? You asked me for my licence and I gave it to you”. Officer Augustus then threatened to arrest him for “giving him talk”. At this point, Mr. Noel reached for his camera and started to record the incident.

5 Mr. Noel further explains that when he started to record the incident, Officer Augustus, opened the driver's door of the bus and said “you are under arrest” and attempted to pull him from his seat. Mr. Noel states that his seatbelt was still secured and thus he was unable to get out. When the seatbelt was released, Officer Augustus forcefully pulled him from the vehicle. Thereafter, the bus began to roll back with Mr. Noel's family and the conductor on board.

6 Mr. Noel states that he attempted to alert Officer Augustus that the bus was rolling back. His response was “I don't not want to hear anything”. Mr. Noel avers that when Officer Augustus looked back and realised what was transpiring, he released Mr. Noel who went after the bus. The bus collided with a wall. After the collision with the wall, the bus continued to roll back and the conductor leaped forward and pulled up the handbrake by which time the bus had hit a second wall. Officer Augustus held him by his arm and brought him to the police station.

7 Mr. Noel claims that he suffered pain in his arm as a result of the manner in which Officer Augustus arrested him and as such he sought medical attention. He claims that:-

• (1) His arm was kept in a cast for about three weeks and he could not work;

• (2) His salary at the time was $ 2,000.00 per month;

• (3) He was kept in a cell overnight and released in the afternoon of the following day;

• (4) His children were traumatised and attended counselling;

• (5) He earned additional income doing farming and reared 267 rabbits. As a consequence of his injury he was unable to feed his rabbits which subsequently died. One rabbit was valued at $67.00 and its meat was valued at $15.00 per pound.

8 As for relief, Mr. Noel pleads damages for assault and battery.

Defendant's case

9 In response to the claim, the defendant, the Attorney General denies that members of the Royal Grenada Police Force were involved in the alleged acts committed. Further, having regard to the allegations that police officers were involved in the incident, the defendant's response is that the Commissioner of Police ought to be the proper defendant in the proceedings.

10 With respect to the alleged incident involving the police officers and Mr. Noel, the defendant's defence is that, save and except the fact that a number of police officers attached to the St. David's police station were conducting a routine traffic check in Petite Esperance in the vicinity of the St. David's Police station, the defendant has no knowledge of the incident. The defendant puts Mr. Noel to strict proof of the name and rank of the police officers mentioned in paragraphs 9 and 10 of the statement of claim. Further, the defendant puts Mr. Noel to strict proof as to his alleged loss and injury.

11 In the alternative, the defendant relies on section 2 of the Public Authorities Protection Act 1 (the Act) to the effect that this is an action against a person in the execution of a public duty or statute. The claim is statute barred since it was not commenced within six months next after the alleged act, neglect or default.

Discussion and Analysis

Whether the arrest was lawful

12 Mr. Noel asserts that he was assaulted and battered by police officers at a traffic checkpoint near the St. David's Police Station. In respect of what amounts to an assault and battery, Halsbury's Laws of England provides:

“Assault is an intentional and overt act causing another to apprehend the infliction of immediate and unlawful force The threat of violence exhibiting an intention to assault will give rise to liability only if there is also a present ability (or perhaps a perceived ability to carry the threat into execution. An assault may be committed by words or gestures alone, provided they cause an apprehension of immediate and unlawful force (emphasis added)

A battery is an act of the defendant which directly and intentionally or recklessly causes some physical contact with the person of the claimant without his consent 2”

13 Mr. Noel was arrested by the police for assault during a traffic stop. An assault is a summary offence under the section 81 of the Criminal Code 3 which provides that “[W]hoever unlawfully assaults any person shall be liable to imprisonment for three months, or to a fine of one thousand dollars, or to both”.

14 Section 22(1) of the Criminal Code provides the definition for assault without battery as follows:

“(1) A person makes an assault without actual battery on another person if, by any act apparently done in commencement of an assault and battery, he or she intentionally puts the other person in fear of an instant assault and battery.” (Emphasis added)

15 Officer Augustus stated at paragraph 24 of his witness statement stated that “he refused to comply, instead he gesticulated pointing his right hand, which he removed from the steering wheel, into my face”. Further, he continued at paragraph 26 that “ I told Noel that he assaulted me by waving his hand into face whilst asking him to

comply with my instruction.” It is Mr. Noel's case that “ Officer Augustus then threatened to arrest me for ‘giving him talk’…” as stated at paragraph 18 of his witness statement

16 Section 22(1) of the Criminal Code and Halsbury's quoted above suggest that an element of an assault is the intention of one to place another in fear of or apprehension of the application of immediate or instant unlawful force. This was indeed the reasoning of the court in Danny Severin v The Attorney General 4, where Belle J stated at paragraph 50 of the judgment that:

My understanding of the law relating to assault however is, that apprehension of the use of some immediate, unlawful force to the person, is an ingredient of the offence or the unlawful act. But the apprehension referred to is not synonymous with alarm. See: Clerk and Lindsell on Torts 20th Edition, Michael A. Jones, London: Sweet & Maxwell, 2010 page 991. Indeed a brave person who is not alarmed by threats or attacks of a minor nature could never plead that he was assaulted if counsel's submission was correct. The law is that the apprehension need therefore be no stronger than awareness of possible harm being inflicted without one's permission. (Emphasis added)

17 Taking Officer Augustus' contention at its highest, I am of the view that the mere fact that Mr. Noel gesticulated into his face, without more is not sufficient to amount to an assault. At trial, Officer Augustus stated that Mr. Noel kept “ pointing his hand at my face less than two feet away… so I warned him and tell [sic] him that is an offence”. Officer Augustus gave no indication on the pleadings or at trial that Mr. Noel intentionally caused him to apprehend the “ immediate fear of unlawful force” by gesticulating in his face. Additionally, there is no evidence that Mr. Noel was gesticulating in a threatening or highly...