Derrick Daniel v The Attorney General, The Commissioner of Police and The Commander of The Coast Guard
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Byer, J. |
| Judgment Date | 20 September 2018 |
| Neutral Citation | VC 2018 HC 58 |
| Court | High Court (Saint Vincent and the Grenadines) |
| Docket Number | SVGHCV2011/0029 |
| Date | 20 September 2018 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Byer, J.
SVGHCV2011/0029
Mr. Ronald Marks with Mrs. Patricia Marks-Minors for the claimant.
Mr. Kezron Walters with Ms. Taies Thomas for the defendants.
Tort - Wrongful detention — Conversion — Boat — Whether initial detention lawful — Whether claimant proved wrongful detention — Whether claimant proved conversion.
The claimant is the owner of a 28' x 15' boat bearing the name “Blue Ocean” powered by two (2) 200 Yamaha engines.
Between the 27 th and 28 th February 2009 the said boat was moored at the Indian River in the Commonwealth of Dominica when it was stolen. The claimant made a report to the Dominican Police Force and later discovered that his boat was found on the Island of St. Vincent and the Grenadines and was in the custody of this country's Coast Guard.
The claimant journeyed to this State and visited the Coast Guard and also secured the services of a lawyer but was unable to effect the release of his boat. The claimant later discovered that his boat had been repainted and introduced into the fleet of the Coast Guard and later damaged whilst in their custody. The boat was taken out of active service and left in the elements where it subsequently deteriorated beyond repair.
As a result of the action of the Defendants, in the year 2011 the claimant filed the suit presently before this Court.
The claimant sought the following remedies: (i) a declaration that the Defendants were not entitled to detain his vessel (ii) An order for delivery to the claimant of his vessel; (iii) Damages for conversion; (iv) Damages for unlawful detention of property; (v) General Damages; (vi) Interest at such a rate as the Court deems fit; (vi) Costs and (vii) Further or other reliefs as the Court deems necessary and appropriate.
The Court is presently asked however to make a determination as it relates to liability only.
For ease of dealing with this matter, I therefore propose to address the case at bar under three distinct issues:
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1. Firstly, what was the nature of the initial appropriation of the claimant's vessel?
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2. Secondly, whether the claimant has proven wrongful detention?
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3. Thirdly, whether the claimant has proven conversion?
The evidence led by the claimant in this regard is contained in paragraphs 5 to 7 of his witness statement which state as follows:
“5. On the 27 th February 2009, I made another trip to Dominica. I left the boat at Indian River at about 4:00 p.m. and went to fill up the cooking gas bottles at Roseau.
6. On returning to Indian River on the 28 th February 2009, I discovered that my boat was missing. I immediately made a report to the Dominican Police.
7. Sometime later I heard that my boat was found in St. Vincent and the Grenadines and was in police custody…..”
It was clear on cross examination that the claimant was unaware as to any more details as to how his vessel ended up in Vincentian waters or what transpired when it did.
Thus, the reasons for the detention of the vessel were all given by the witnesses for the defendant.
The defence called five (5) witnesses all either police officers or officers in the Coast Guard. Of those, only three assisted in this regard. There was Lieutenant Ralphie Ragguette who at paragraph 17 of his witness statement stated:
“… the “Blue Ocean” was kept at the Base in view of the fact that it was evidence of the offence committed on February 28, 2009 and that it was, among other things, an instrument of crime.”
There was Able Seaman Gareth Glasgow who said in his evidence in paragraphs 19 to 25 of his witness statement:
“19. That while in close proximity to Islet, all the Coast Guard personnel aboard the SVG 03 spotted a vessel in the distance. I do not exactly recall which of the Able Seaman saw it first.
20. That before the occupants of the vessel caught sight of the SVG 03, they appeared to be moving in the direction of the coastline of Chateaubelair.
21. That it appears that the occupants of the vessel recognised the presence of the COAST GUARD VESSEL SVG 03: it made a U turn altered its apparent original course and started to head towards the Petit Bordel coastline. It increased speed significantly, the fact of the increase being obvious due to the increased churning created in the wake of the vessel.
22. That I recall that warning shots were fired: I distinctly recall hearing gun shots being fired at the SVG 03 in response from the said vessel.
23. That upon the instructions of Leading Seaman Lewis, I fired disabling shots, my aim being to the engine of the same. I did not succeed in disabling the target.
24. That as the vessel approached the beach area, I ceased fire as there were persons on the beach and I did not want to run the risk of causing un-necessary injury to apparent by-standers.
25. That I saw when the occupants of the vessel steered the boat onto the beach at Petite Bordel, drove the vessel unto the sand of the beach so that the same was entirely out of the water and then jumped out of the same and ran up into the village.”
Finally there was Sargeant Elvis Thomas who stated at paragraph 48:
“That I had been in receipt of intelligence pertaining to the “Blue Ocean”, …. Intelligence reveals that February 28, 2009 was not the first occasion on which that vessel was seen in the Petit Bordel area in circumstances which cogently suggested the involvement of the vessel and its occupants in the trade of illegal narcotics.”
It would therefore appear that the vessel so sighted, had been used as an instrument of crime and as such the police investigating the matter were entitled to retain the same pending the laying of charges that may have emanated from the circumstances.
In fact Counsel for the defendants eloquently argued that Section 27 of the Criminal Procedure Code allowed the police to “stop, search and detain any vessel “in which or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found, or any other thing in respect of which an offence is being or has been committed is to be found, and also any person who may reasonably be suspected of having in his possession or conveying in any manner anything stolen or unlawfully obtained or in respect of which an offence is being or has been committed”.”
Indeed this Court has no difficulty in agreeing that the police are clothed with such powers in all the circumstances, but as Lord Denning MR in the case of Ghani v. Jones1 stated at page 706 thereof the question that must be asked “is this a significant justification in law”.
In that case, during the investigation of a murder the police obtained and retained the passports and other documents of the claimants. There had been no arrest nor was there any evidence of the claimants being implicated in the crime. The police therefore sought to retain the said documents simply because they considered the same to be of “evidential value” and “potential evidential value”. 2
Coming out of these circumstances Lord Denning produced a five-pronged approach in looking at the circumstances surrounding seizure of personal items by the police to determine whether they were entitled to do so. Lord Denning opined:
“What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual, his privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied:
First: The police officers must have reasonable grounds for believing that a serious offence has been committed — so serious that it is of the first importance that the offenders should be caught and brought to justice.
Second: The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber).
Third: The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable.
Fourth: The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned.
Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards.” 3 (My emphasis added)
Counsel for the defendants although usefully identifying the pre-requisites, failed to go further and answer whether these pre-requisites all existed, in the case at bar to justify the continued retention of the claimant's vessel some 9 years later....
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