Matthew McMillan v Alonzo Carty
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Ventose, J. |
| Judgment Date | 13 November 2019 |
| Judgment citation (vLex) | [2019] ECSC J1113-1 |
| Docket Number | CLAIM NO. SKBHCV2017/0380 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 13 November 2019 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SKBHCV2017/0380
Mr. Jason Hamilton for the Claimant
Mr. Dane Hamilton Q.C., with him, Mr. Victor Elliot-Hamilton for the Defendants
The Claimant filed an amended claim form and statement of claim on 28 November 2018 in which he sought: (1) damages for the false imprisonment of the Claimant on or about 4 December 2017; (2) damages for the unlawful search of the Claimant's luggage and the subsequent search of the data stored on his cellular phone and laptop and all other electronic equipment; (3) damages for the unlawful seizure of the Claimant's electronic devices on or about 4 December 2017; (4) damages for the unlawful arrest of the Claimant on or about 4 December 2017; (5) special damages; (6) aggravated damages; (7) exemplary damages; (8) interest pursuant to section 27 of the Eastern Caribbean Supreme Court (St Christopher and Nevis) Act; (9) costs; and (10) such further relief as the court may find just.
The questions that arise for determination are as follows: (1) whether Inspector Carty had reasonable suspicion or an honest belief that the Claimant had committed an offence; (2) whether the Claimant's property was unlawfully searched and seized; and (3) what damages should be payable to the Claimant if the court finds in his favour in respect of (1) and (2).
The Claimant was detained at the Robert Llewellyn Bradshaw International Airport (the “ Airport”) at approximately 8:35 a.m. on 4 December 2017. He was informed that he was on a watch list and that he could not leave the country because he needed to be questioned and that an Inspector from Nevis was on his way to question him. The Claimant was not informed that he was under arrest or that he was under suspicion of committing a crime. Approximately one hour later, the Claimant was taken to the police station in Basseterre. The Claimant was arrested by Inspector Alonzo Carty at 11:27 a.m. for suspicion of “invasion of privacy”. The Claimant's personal items were searched and recorded. These were kept in the same room where he was being detained. However, his USB devices, laptop and two mobile phones were confiscated and taken out of the room from around 3:30 p.m. to 8:00 p.m. The Claimant was released from police custody at approximately 8:21 p.m. that evening.
The cross-examination of the Claimant did not undermine any of his evidence in chief. The Claimant struck me as a witness to the truth and he answered the questions posed to him. There is no evidence before the court that the Claimant was in the vehicle with license plate number R1394 (the “ Rented Vehicle”) when it was allegedly seen by Mrs. Sharon Brantley. I accept his evidence that he does not know exactly where the neighborhood in which Mrs. Brantley lives, and that he does not remember the color of the vehicle in which he drove on the day in question. The Claimant states that his name was spelt incorrectly on the rental agreement and that his signature was not on the rental agreement, and that the agreement is not in his handwriting. Surprisingly, where the signature section is located, there is what seems to me to be a tick.
I also believe the Claimant when he stated that although he knew Mr. Antonio Wallace, that person was not his travelling companion during the day on 1 December 2017 but that they travelled in the evening together. I also believe the Claimant when he stated that he was not operating a drone in the Brown Hill area and that his political consultancy services do not include the use of drones.
Mrs. Brantley gave evidence that on 1 December 2017, she noticed a drone hovering over her head at her home. She went in her vehicle in pursuit of the drone and she claims that she came upon a suspicious vehicle with a license plate number R1394 which she believed was being driven by the drone operators. It was driven by a white man with a black man in the passenger seat. However, in her letter of complaint to Inspector Carty dated 2 December 2017, after recounting the details of what she saw, Mrs. Brantley stated that her further investigations revealed that the two men who were in the Rented Vehicle work for a group called Buzz Makers and that they are hired propagandists. In her letter of complaint, Mrs. Brantley stated that after googling the names of the team members of Buzz Makers, she found images of them and that two of the photos resemble the men who were seen in the Rented Vehicle. She names the men as the Claimant and Mr. Victor Richardson and she also attached their photos to her letter of complaint.
During cross-examination Mrs. Brantley accepted that she did not see: (1) the direction in which the drone flew after she saw it; (2) exactly where the drone ended up; (3) the drone go into the Rented Vehicle; (4) the occupants of the Rented Vehicle; (4) inside the Rented Vehicle; (5) the drone inside the Rented Vehicle; and (6) the occupants of the Rented Vehicle with anything in their hands. She stated that she believed that the persons in the Rented Vehicle were the operators of the drone merely because there was one exit in the area where she lived, and the Rented Vehicle was the only vehicle exiting the area at the time. She accepted that a drone can be controlled from a long distance away, that one does not need to be in a vehicle to control a drone and that one can be in an office or on the beach while controlling a drone.
When asked by Counsel for the Claimant why she thought the Rented Vehicle was suspicious, apart from her statement that it was the only vehicle on the road at the material time, Mrs. Brantley replied that she did not think the Rented Vehicle was suspicious and it was the only vehicle in the area where the drone descended. She accepted that the only basis she had that the occupants of the Rented Vehicle were the operators of the drone was that it was the only vehicle on the public road at the time. Mrs. Brantley accepted that her belief was based on an assumption and that she did not know who was controlling the drone. She accepted that the occupants of the Rented Vehicle were travelling on the public road in a normal manner and her assumption was based solely on the fact that the Rented Vehicle was the only vehicle on the public road at the time.
Inspector Carty did not want to accept that there was no offence created by statute, or the common law, known as “invasion of privacy”. He merely replied he did some reading and later stated that, as far as he is aware, there is such an offence. I accept that there is no offence known as “invasion of privacy”. I do not believe the evidence of Inspector Carty. During his cross-examination, he smiled repeatedly before answering. I believe that Inspector Carty was knowingly telling falsehoods to the court. I do not believe his evidence. I accept that when Inspector Carty arrested the Claimant, he was not aware of the offence known as watching and besetting. I also find that Inspector Carty only later researched the matter to find a justification for his arrest of the Claimant. It is clear that the offence for which the Claimant was arrested was suspicion of “invasion of privacy” as is clearly stated on the Custody Record of the Royal St. Christopher and Nevis Police Force. Inspector Carty nonetheless insists that this was the most appropriate charge or reason for the Claimant's arrest. I do not believe him.
What is even more striking is that Inspector Carty was able to obtain a search warrant for Carino Development Apartment 7A where the Claimant allegedly stayed while in Nevis. The search warrant states that evidence on oath has been given by Inspector Carty that there is reasonable cause to believe that certain property to wit controlled drugs, firearms and ammunition and persons of interest in an investigation alleged to have been concealed is on certain premises to wit Carino Development Apartment 7A. The evidence on which this warrant was obtained was patently false, because Inspector Carty could have had no reasonable cause to believe that these items, namely, controlled drugs, firearms and ammunition, were at the place where the Claimant allegedly stayed while in Nevis. Inspector Carty accepted that the report made to him by Mrs. Brantley did not include drugs, but nonetheless stated that it was appropriate to have obtained the search warrant for that reason (as stated in the warrant) based on his investigations. When asked why by Counsel for the Claimant, Inspector Carty replied that it was based on his knowledge and information at that time. Inspector Carty provided false information to the Justice of the Peace to enable him to obtain the search warrant. Section 4(2) of the Perjury Act CAP 4:23 of the Revised Laws of Saint Christopher and Nevis provides that:
(2) Where a statement made for the purpose of a judicial proceeding is not made before a tribunal or court, but is made on oath before a person authorised by law to administer an oath to the person who makes the statement, and to record or authenticate the statement, it shall, for the purposes of this section, be treated as having been made in a judicial proceeding.
This matter needs to be investigated by the Director of Public Prosecutions to determine whether the actions of Inspector Carty contravene section 4(2) or any other section of the Perjury Act. In addition, this is a matter that must engage the attention of the Police Service Commission for investigation to determine whether Inspector Carty engaged in any misconduct.
Inspector Carty could not show anything on the search warrant that could have assisted in respect of...
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