Terrence Calix v Attorney General of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] UKPC 15 |
| Date | 23 May 2013 |
| Docket Number | Appeal No 0003 of 2012 |
| Court | Privy Council |
[2013] UKPC 15
Lord Hope
Lord Kerr
Lord Wilson
Lord Reed
Sir John Sheil (NI)
Appeal No 0003 of 2012
Privy Council
Appellant
Anand Beharrylal
Frances Ridout
Taurean Dassyne
(Instructed by Shearman Bowen & Co Solicitors)
Respondent
Thomas Roe
(Instructed by Charles Russell LLP)
Heard on 14 March 2013
On the evening of 26 November 1998 two young people, GN and JF, were subjected to a horrifying attack at Richardson Street in Point Fortin, St Patrick, in the Republic of Trinidad and Tobago. A man wielding a cutlass robbed GN and raped JF. On 6 December 1998, the appellant, who was something of a recluse, was arrested on suspicion of being the person who had carried out the attack. At the time he lived in an abandoned shed within walking distance of Richardson Street. An identification parade was held on 10 December 1998 and the appellant was picked out by both GF and JF as the man who had committed the crimes.
The appellant was charged with robbery and rape and brought before Point Fortin Magistrates' Court on 11 December 1998. He was remanded in custody. A week later, on 18 December 1998, he appeared again before the magistrates' court. On this occasion the magistrate fixed bail but this was subject to the condition that the appellant provide a surety of some $100,000 (roughly equivalent to £10,000). He failed to provide such surety and he was again remanded in custody where he remained until his trial on 5 May 1999.
The trial on 5 May 1999 was a summary trial on the robbery charge only. The appellant was represented pro bono by counsel. At the close of the prosecution case an application was made for a direction of no case to answer. This was based on the fleeting and unpropitious circumstances in which the purported identification had been made and on deficiencies in the identification parade. The application succeeded. The appellant was duly acquitted of the robbery charge. Notwithstanding this and despite the fact that the evidence against him on the charge of rape was the same as that on the charge of robbery viz the identification by the same two witnesses and despite the further fact that the officer in charge of the prosecution had recommended that it be discontinued, the appellant remained in custody and stood trial on the charge of rape. On 28 August 1999, on his trial on this charge, a similar application for a direction of no case to answer was made on behalf of the appellant and, unsurprisingly, it was also granted and the appellant was acquitted of the rape charge also.
The appellant instituted proceedings for malicious prosecution. On the trial of that action, it was found that there had been reasonable and probable cause to arrest the appellant on 6 December 1998 and to charge him with the offences of robbery and rape. But it was held that after the robbery charge had been dismissed, the appellant should not have been prosecuted on the rape charge and that his trial on that charge amounted to malicious prosecution. At the end of the hearing on 15 March 2007, Acting Judge Aboud J awarded compensation of $38,000 to the appellant. He gave reasons for that award in a written judgment delivered on 29 May 2008. In para 21 of his judgment Aboud J said this:
"The plaintiff remained on remand for an additional 115 days or just under four months pending the determination of the rape charge. I assessed his general damages at $38,000. In arriving at this figure I took into account the peculiar character and reputation of the plaintiff in 1998. He had been living as a homeless person in an abandoned shed, in an environment that was unhygienic and squalid. He had no toilet facilities, running water, or electricity. He refused contact with his sister who lived in premises in San Juan, and was not willing to call upon any friend or acquaintance when arrested. Notwithstanding his high school education and his training at John Donaldson Technical Institute as a machinist, he deliberately withdrew from society and the labour force at a time when employment and a better way of life was readily available. He might have been expected to know more, to do more, and to want more for himself as a free individual, and when he was on remand. He appeared without legal representation throughout every adjournment of the robbery charge, although Legal Aid was available to him. Mr Dindial first appeared amicus for him on the first day of the robbery trial. He was a recluse, choosing to live in unhygienic conditions, ekeing out a living as a scavenger of copper, when many other options must have been available to him. I marked him as an odd man. He might have been going through an irrational or unstable phase of his life, because, with his education and training, it was unreasonable to choose to live in such squalid conditions for over eight years secluded from society. Sadly, his reputation and social standing did not amount to much. Save for some unnamed friends that also scavenged on the coast, and who he nonetheless refused to contact throughout his ordeal, he appeared to have no social contact with any person."
The trial judge dealt with the appellant's claim for compensation for loss of liberty in para 22 of his judgment:
"The physical conditions at the police station's cell and at the remand yard could not have been worse than in the abandoned shed, and I preferred Corporal Monsegue's description of the cell to that of the plaintiff. Of course, in the cell he was deprived of his liberty. But his liberty was conditional on his bail, an avenue that might have been available with his sister's or his friends' assistance, had he chosen to contact them. The bail might have been reduced on application, but no application was made. After the dismissal of the robbery charge, on grounds certainly to be advanced at the rape trial, the magistrate or a Judge in Chambers would very likely have reduced the bail, which was originally fixed to cover both charges. His attorney made no application while the rape charge was being prosecuted."
Finally, in relation to the impact that the prosecution had on the appellant, the judge said this in para 23 of his judgment:
"In evidence the only anguish that the plaintiff admitted was that the incarceration 'kind of bogged me down, it had me kind of uncomfortable'. He said his friends were 'sympathetic' to his situation after his release. Beyond these few remarks, he left his mental anxiety to be inferred by the Court. He did not say that he was shunned or treated as a pariah after his release …"
In an ex tempore judgment delivered on 24 November 2010, the Court of Appeal dismissed the appellant's appeal. Stollmeyer JA, delivering the unanimous judgment of the court, said that the trial judge had correctly assessed compensation for the damage to the appellant's reputation. In relation to the claim for loss of liberty he said this:
"The second head [of damages] raises the real issue as to quantum. The appellant was incarcerated up to the time of the dismissal of the rape charge some 115 days after the robbery charge was dismissed. He contends that an award of $38,000 for this period is inordinately low. I do not agree. The issue which arises here is whether a person who is incarcerated, although granted bail, can receive an award of damages in malicious prosecution under the head of endangerment of liberty. The issue is an important one and we are told that this is the first occasion on which it falls to be decided by the Court of Appeal. Conflicting decisions at first instance have been referred to, but in the circumstances I have come to the view that the grant of bail by the Magistrate, although not accessed by the appellant, is, in law, a sufficient ground in this case to disentitle him to an award under this head. I say so for two basic reasons. The first is that granting bail interposes a judicial act between the prosecution and the continued detention of the accused. The prosecution is no longer the cause of the deprivation of liberty. That deprivation is caused by the judicial act. Second, an award of damages here might be regarded in the circumstances of this case as inappropriate because of the failure to apply to the Magistrate, or to a Judge, for variation of the bail which, as the trial judge pointed out, was an application very likely to have succeeded. This failure was what endangered the appellant's own liberty. In the circumstances, and having regard to comparative awards, the trial judge applied the law correctly and I do not find that the award is inordinately low."
On his appeal to the Board, the appellant contended that the trial judge had engaged in a series of speculative assessments about him which had led to a plainly erroneous evaluation of the damage to his reputation; that the judge had failed to take sufficiently into account the appellant's good character and the seriousness of the offence on which he had been tried; that he had equated the appellant's lack of social standing with his character and had, on that account, wrongly concluded that his reputation did not amount to much; and that in consequence of these errors, he had made an award for loss of reputation that was inordinately low. In relation to the claim for compensation for loss of liberty, the appellant submitted that both the trial judge and the Court of Appeal had erred in concluding that the failure to apply for a revision of his bail conditions was the reason that he remained in custody until the conclusion of the second trial.
Oddity of personality, even frank eccentricity does not of itself diminish the value of...
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