Justice of Appeal at the Eastern Caribbean Supreme Court (ECSC) Mr. Davidson Kelvin Baptiste has awarded a Carrot Bay man $50,000 for damages for malicious prosecution after he was detained for 708 days and faced three trials for the murder of Darren Allen “Tiger” Hodge.
The judgement, in relations to the civil claim brought by Wakeem Guishard, the appellant, against the Attorney General of the Virgin Islands, the respondent, was handed down on October 2, 2020.
Attorneys –Mr. Jamal Smith and Ms. Keah Glasgow represented the Guishard while Attorney Ms. Maya M. Barry, Principal Crown Counsel, represented the respondent.
An initial application was heard by a Master who delivered a written judgment on October 4, 2018 where Guishard was awarded damages in the sums of US$231,500.00 for wrongful arrest and false imprisonment; US$25,000.00 for malicious prosecution; interest on the sums awarded as damages at the rate of 5% per annum from the date of the judgment; prescribed costs in the sum of $15,480.00; and cost in the sum of US$1,500 on the appellant’s application for assessment of damages.
Guishard was not satisfied with the decision of the court and appealed the matter.
In his written judgement, Justice Baptiste of the ECSC said, “the appeal against the award of US$25,000.00 damages for malicious prosecution is allowed, the said award is set-aside, and the sum of US$50,000.00 awarded to the appellant as damages for malicious prosecution.”
He said the reason for doubling the amount was because the requested $25,000 was ‘woefully low’.
In the meantime, the court ruled that each party would bear their costs of the appeal because each were successful in part, and ordered that the appeal against the award of US$231,500.00 damages for wrongful arrest and false imprisonment is dismissed and the order of the learned Master for payment of the said sum by the Crown to the appellant is confirmed.
Guishard had also filed for special damages for loss of earnings for the period of incarceration but failed to produce supporting documents to the court and it was dismissed on that basis.
He also sought damages for child support but that too was dismissed because the court said it would have been met out of his income and would not be appropriate in this type of case, hence it was dismissed.
The main issues for determination, according to the judgement, were whether master applied the correct principles in determining the appellant’s award of damages for the initial or “shock” period of the appellant’s detention, and in arriving at a daily compensatory rate of US$300.00 for the remainder of the appellant’s detention at the prison; whether the Master properly took into account the likely damage to the appellant’s reputation in arriving at the award for malicious prosecution; whether the Master erred by failing to award the appellant pre-judgment interest; and whether learned master erred by applying the wrong percentage in his calculation of prescribed costs; and whether the learned master erred in awarding the appellant cost of his application for assessment of damages.
According to the court’s documents, on the 28th May 2014, the appellant was arrested at his home on Tortola and taken into custody by police officers of the Royal Virgin Islands Police Force on suspicion of Hodge's murder.
He was detained in a cell at the West End Police Station and later at the Road Town Police Station on Tortola. The following day, after being questioned by the police in the presence of his lawyer, the appellant was formally charged with murder.
On May 30, 2014, he was taken before a magistrate and subsequently remanded into custody at the H.M Prison at Balsam Ghut.
Guishard in his application contended that he suffered several indignities at the hands of police during the first two days of his detention, which included having to sleep on a piece of wood on the floor of the cell at both police stations.
He claimed to have been kept hungry during the first 24 hours of his detention and not allowed to take a bath for three to four days. Upon being remanded to the prison by the magistrate, he was deliberately taken by police out the front entrance of the Magistrates’ Court in full view of members of the public and the media. The appellant’s detention lasted a total of 708 days, almost 2 years.
Solitary Confinement & Fights
The court documents also revealed that for the greater part of this period, some 648 days, he was effectively kept in solitary confinement at the “A wing” of the prison locked up for 23 hours each day in a cell with a sponge for a bed.
During the appellant’s detention at the prison at the “A-wing” he witnessed several fights and bloody attacks, including the stabbing of a prison guard by an inmate, and another incident where an inmate was stabbed in the neck and fell right in front of the appellant’s cell.
Guishard claimed that he was only permitted visits from his family twice a week, with each visited limited to15 minutes. On January 8, 2015, the appellant was formally indicted by the Director of Public Prosecutions for the murder of Hodge.
During the period 13thMarch 2015 to 12thApril 2016,the appellant was subjected to three trials on indictment on the charge of murder.
His first trial, after 11 days, was declared a mistrial.
The appellant’s second trial, which commenced on March 8, 2016, was aborted after four days of hearing, as the presiding judge discharged the jury; and the third trial, which lasted 16 days, resulted in his acquittal on May 4, 2016 by the unanimous verdict of the jury.
The appellant was immediately ordered to be released from custody.
On December 2, 2016, the appellant instituted proceedings against the respondent, claiming damages, including special and exemplary damages, for wrongful arrest, false imprisonment, and malicious prosecution.
The respondent did not file a defence to the claim within the time prescribed by rules of court, and judgment in default of defence was entered against the Crown on March 17, 2017 for an amount to be determined by the court. The respondent’s application to set aside the judgment in default was unsuccessful.