Aaron Bailey v Attorney General of Belize

• Jurisdiction: Belize
• Judge: Madam Justice Sonya Young
• Judgment Date: 05 November 2020
• Court: Supreme Court (Belize)
• Docket Number: CLAIM NO. 586 OF 2019
• Date: 05 November 2020

IN THE SUPREME COURT OF BELIZE, A.D. 2019

Before

the Honourable Madam Justice Sonya Young

CLAIM NO. 586 OF 2019

Aaron Bailey

Claimant

and

Attorney General of Belize

1 ^st Defendant

Sgt. 577 Ismael Westby

2 ^nd Defendant

Belize Police Department

3 ^rd Defendant

Appearances:

Mr. Leeroy Banner, Counsel for the Claimant.

Mr. Kileru Awich, Counsel for the Defendants.

Keywords: Tort — Unlawful Arrest — False Imprisonment — Malicious Prosecution — Murder — No Identification Parade — Sole Eyewitness Dies — Nolle Prosequi — No Reasonable or Cause for Continuing Prosecution — Proof of Malice.

1 Aaron Bailey was arrested on the 7 ^th October, 2013. The next day he was charged for murder and arraigned. He remained in custody and was subsequently committed for trial in the High Court. He was indicted on the 12 ^th January, 2015. His detention continued until the 23 ^rd March, 2018 when he was released on bail. The Crown entered a nolle prosequi on the 27 ^th June, 2018 and he was discharged.

2 Aaron Bailey insists that he was arrested and charged by the second Defendant without a proper investigation, any reasonable suspicion or probable cause. He says he had no record, his alibi was never properly investigated and his prosecution continued even after the sole eye witness died in May, 2014. All this, notwithstanding the eyewitness' testimony, was tenuous at best and there was no other evidence against him.

3 He now brings this Claim against the Defendants for unlawful arrest, false imprisonment and malicious prosecution. He says he has been deprived of his liberty for four (4) years and five (5) months, his character and reputation have been greatly injured and he has suffered mental anguish, anxiety and financial loss. He claims special and general damages, including aggravated and exemplary damages with interest and costs.

4 In their Defence, the Defendants plead that the very nature of the offence with which the Claimant had been charged precluded any possibility of bail on arraignment. In any event, his committal to stand trial by the Magistrate was an independent intervening act which broke the chain of causation for any loss and damage sustained. His continued prosecution, even after the death of the sole eye witness, was without malice as there was sufficient evidence to establish a reasonable suspicion and probable cause for his arrest, detention and prosecution.

5 Further, more than one (1) year had passed since his cause of action for false imprisonment accrued so it was, consequently, statute barred. Finally, they urge that the Claimant was never acquitted, so he could bring no Claim for malicious prosecution. They pray that his Claim be dismissed in its entirety with costs to his detriment.

6 The parties seemed to have abandoned some of what had been pleaded (Intervening act of committal, limitation) and agreed on the following issues in their Pretrial Memorandum:

• 1. Whether the 2 ^nd Defendant had reasonable and probable cause to arrest the Claimant for murder of Gary Pratt?

• 2. Whether the 2 ^nd Defendant had reasonable and probable cause to charge the Claimant for the said murder?

• 3. Whether the continued detention of the Claimant after the death of the sole eyewitness can be justified?

• 4. Whether the 2 ^nd Defendant commenced the criminal prosecution against the Claimant maliciously and without reasonable and probable cause?

• 5. Whether the Claimant is entitled to damages for false imprisonment and malicious prosecution?

7 The Court, however, favors the following statements of the issues:

• 1. Whether the Claimant was falsely imprisoned by the 2 ^nd Defendant or was his arrest justified and his detention reasonable in the circumstances?

• 2. Whether the Claimant was maliciously prosecuted by the 2nd Defendant, or were the actions of the 2 ^nd Defendant in charging and prosecuting the Claimant activated without malice and with reasonable and probable cause?

• 3. Whether the continued detention of the Claimant after the death of the sole eyewitness can be justified?

• 4. Whether the Claimant is entitled to damages for false imprisonment and/or malicious prosecution and, if he is, in what quantum?

Whether the Claimant was falsely imprisoned by the 2nd Defendant or was his arrest justified and his detention reasonable in the circumstances?

8 The law on false imprisonment needs little recapitulation here. Essentially, it concerns the complete deprivation of the subject's liberty without cause. Neither length of time nor place or mode of detention is important because the detention of a person is prima facie tortious. In this case it, therefore, remains for the arresting officer, Sergeant Westby, to demonstrate that at the time of arrest, he had a reasonable suspicion that Aaron Bailey had committed an arrestable offence. Murder is most definitely an arrestable offence.

9 A reasonable suspicion is formed through the actual existence of and the arresting officer's own belief that there existed, reasonable grounds. There is, therefore, a subjective and objective element. This is not the same as a prima facie case, since inadmissible evidence and even information which may be proven eventually to be untrue can reasonably be taken into consideration. A finding depends on all that was available for the officer's consideration in the particular circumstances.

10 In Attorney General of Belize v Margaret Bennett et al Civil Appeal No's 48, 49, & 50 of 2011 Morrison JA at paragraph 34 explains what the success of a Claim of this nature requires:

“The question of whether or not a reasonable suspicion existed is therefore essentially an objective one, although it will obviously be relevant in any subsequent consideration of the matter in a particular case to know what the arresting officer had in his mind. Thus in Dallison v Caffery, Diplock LJ said this (at page 619):

‘The test whether there was reasonable and probable cause for the arrest or prosecution is an objective one, namely whether a reasonable man, assumed to know the law and possesed of the information which in fact was possessed by the defendant, would believe that there was reasonable and probably cause.””

The Evidence

11 It is agreed that Mr. Bailey had been arrested and charged for murder. Sergeant Westby, in his witness statement, explained that he had not know Aaron Bailey prior. His decision to arrest and charge Mr. Bailey was “based on the contents of the statement of Jullian Willoughby and the lack of any confirmation of Aaron Bailey's alibi.” He continued that he would not have arrested him if he had been able to get confirmation of his alibi, but none had been obtained during his investigation.

12 Mr. Willoughby was, admittedly, the only eyewitness who identified Mr. Bailey as the perpetrator. The Court must then turn its attention to the Willoughby statement given two (2) days after the murder. In it he states:

“The four feet walked together along the side of the house and when they reached to the right corner of the house and the first person showed up, I saw him lifting his right hand, holding in his fist a black object resembling a gun, he was wearing a Red, black and white striped shirt, a black cap on his head and a blue ³/₄ jeans pants, I was able to see him clearly since he was about 25 feet away from me and a lamppost is on the opposite side of the street across from my house. The lamppost was about 25 feet away from me and that was a lamp which was lighted and gives clear light all in front and to the left side of the yard in front of my mother's house. When the first person showed up at the corner of the house I noticed that he was Aaron Bailey who I have known for the past 12 years, who live on Racoon Street Extension and he hanged with me and used to visit me at my mother's house for about 5 years, but it has been 7 years now that me and he do not hang anymore. When Aaron Bailey showed up and I saw him holding what I believe was a gun I shouted “GUNMAN”. I ran from the gate where I was on Antelope Street Extension upwards towards Elston Kerr Street direction, whilst I was running I then heard about five loud bangs like that of gunshots one after the other and I ran about 50 feet away and went into the yard where my sister (Selma Lynch) live which is next yard from my mother's yard and I hide there, at this time I did not knew what happened to Nuri Polanco, Ernest Hinds and Kendal Sanchez. This only took about 10 to 15 second to happened, more or less. When Aaron Bailey showed up at the right corner of my mother's house I watched him to his face for about 5 second and then I ran.”

13 The Claimant says that he was hastily charged without a thorough and impartial investigation. He adds that even when taken at its highest this evidence is so weak and tenuous that it ought to have been regarded as nonexistent.

14 In his submissions, Counsel for the Claimant concentrated on whether the evidence would have met the Turnbull guidelines for identification evidence in a criminal trial ( R v Turnbull [1977] QB 224). He, therefore, attempted to demonstrate through the absence of evidence regarding possible obstructions to Mr. Willoughby's ability to properly observe all he said he did (such as the hat he said Mr. Bailey was wearing), what position he was in when he made his observations and what part of Mr. Bailey's face was actually visible to him. Counsel also drew the Court's attention to the statements provided by three (3) other witnesses at the scene:

Rosita Polanco said the person she saw had “something black on his head, I cannot say what was on his head because it happened so fast and my door was only about two inches open.” Later she informed, “I was able to see the shirt color of the shooter as there is a lamp post light directly across from my yard about 25 feet away and the deceased was standing about 18 feet from me. Where I stood and watched the...