Browne v Martin

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Byron, J.
• Judgment Date: 25 March 1983
• Neutral Citation: MS 1983 HC 3
• Docket Number: No. 27 of 1982
• Date: 25 March 1983

Browne

and

Martin

Byron, J.

No. 27 of 1982

High Court

Tort - Damages — Assault and Battery

Facts: The plaintiff alleged assault and battery against the defendant police officer. The defendant claimed that he committed a lawful search of the defendant and denied the charge. Court found on the facts that the defendant committed a battery on the plaintiff, that the use of brass knuckles could not be justified although the defendant had a right to search the plaintiff upon reasonable suspicion. Even though the defendant was exercising a legal right in searching the plaintiff, the manner in which he exercised that right was completely unreasonable. The plaintiff alleged that he could not work for one month. He admitted that he did not work everyday. Plaintiff was awarded l4 days loss of earnings totalling $490.00. General damage of $1,000.00 awarded. Judgment given for the plaintiff in the sum of $1532.50.

Appearances:

Mr. Kenneth Allen for the plaintiff.

Mr. Prichard-Witts for the defendant.

Byron, J.

1 The plaintiff alleged that on Friday, 14 ^th January 1981 he was coming from George Street to Harney Street in Plymouth when he was approached by a police officer in plain clothes who, requested to search him. The plaintiff consented to be searched and was searched. That the defendant beat him with brass knuckles causing him injury pain and suffering. The defence denied the assault and battery.

However, at the trial the counsel for the defence applied to amend his defence by alleging, “that he struck the plaintiff in the course of arresting and searching the plaintiff and/or in the course of defending himself.”

2 The amendment was allowed. The facts I found are set out. The plaintiff is 27 years old. He does carpentry and masonry work. H e knows the defendant and that he is a police officer. On Friday, 13 ^th November 1981 approaching 10 p.m. he was walking from George Street to Harney Street on a track that crosses a playing field. The defendant was on a plain-clothes patrol duty at that time in that area. The defendant said that he smelt what appeared to be cannabis sativa burning, and he saw the defendant with something lighted between his lips. The plaintiff denied that he was smoking anything or that he had anything lighted between his lips. The defendant recognised the plaintiff he saw that he did not have anything in his hand or mouth. The defendant said, “the defendant looked in my direction and ran behind a truck. By time I reached him he had nothing in his hand.”

3 The defendant told the plaintiff that he wanted to search him for marijuana and he commenced to search him. He did not find anything on the plaintiff.

4 The plaintiff said:

“He did not find anything. He just lick me down. He came with a pair of brass knuckles around his fingers. He hit me with a set of brass knuckles around his fingers… He hit me with the knuckles over my left eye. I fell to the ground…” He then described a further beating from which he sustained wounds in his head and on his hand bursting a finger resulting in “blood was running all over my clothes and my face and my head.”

“I then put my left hand into his right pocket and told him let me see what he have in his pockets and he replied “No…. (with a bad word). He pulled my hand out of his pocket and I pushed my hand back into his pocket and he replied “You no hear me say you no a (bad word) search me?” at that point the defendant fired at fist at me. He struck me with his fist. I tried to avoid getting the blow and on trying to do so, I fell to me knees. The plaintiff fired another fist at me, I caught hold of his hand pulled him over my shoulder and he fell on his head and on his back. The plaintiff began wrestling to get away. I had his handholding. It took me 3 minutes to get him under control where I had his right hand placed in a hammer hook.”

5 In his evidence the defendant denied striking the plaintiff at all and suggested that any injuries the plaintiff sustained at that time he got from the fall he gave him and in the wrestling.

6 In cross-examination he said “I would say he cut himself while we were wrestling. I threw him on his back and I had to wrestle him over on to his stomach to put the hammerlock on him. He also said, “During the wrestling the plaintiff did not strike me at all.”

7 In my opinion it is strange that on the 7 ^th September, 1982 the defence should contain this paragraph “the defendant denies that he either assaulted or beat the plaintiff as alleged in the statement of claim or at all,” and then at the commencement of the trial, the defendant applies to amend that paragraph by deleting the words “or at all” and adding “but states instead that he struck the plaintiff in the course of arresting and searching the plaintiff and/or in the course of defending himself.”

8 And then the evidence he gives in court on oath in different from both the original and amended version. It raises in my mind serious questions as to his consistency and therefore this truthfulness. It should be noted that he is a police officer and he said that after the writ of summons was served on him he made a written statement, and the suggestion that the plaintiff cut himself while wrestling does not seem credible to me.

9 The plaintiff had a witness Elsie Jeffers. She said she was walking behind the plaintiff and had stopped to speak to someone. She said she heard...