The case of the invisible witness
By Andre Bagoo Sunday, January 26 2014
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Chief Justice Ivor Archie...
CHIEF Justice Ivor Archie minced no words. On January 15, he reprimanded an attorney who brought a lawsuit all the way to the Court of Appeal on the basis of information which reportedly came from a witness whom the lawyer had never met, never seen and didn’t even know the name of. The anonymous witness was also, apparently, invisible.
“How could you swear an oath, sign a certificate of truth, if you do not know the source of the information contained in it?” Archie asked the lawyer Taurean Dassyne and his instructing attorney Sylesh Ramjattan. Also on the Court of Appeal in the case that day was Justice of Appeal Nolan Bereaux. He asked Dassyne, “Do you know who the witness was? You must know who the witness is.”
“No,” said lead attorney Dassyne.
“How could you file a matter and you don’t know the main witness, especially when you have to sign a certificate of truth?” Bereaux asked, referring to the fine print lawyers sign at the end of an affidavit document submitted to the court.
DEATH AT REAL STREET
Dassyne told the court that the civil lawsuit filed against the State for the 2008 shooting death of Neil Eligon was premised on information obtained by a relative from an unnamed witness. But the witness was, reportedly, afraid to come forward. The case was brought based on what, the lawyer said, the anonymous witness told Neil Eligon’s brother. It was thrown out in December by High Court Judge Justice Andre Des Vignes. But the lawyers took it to the Court of Appeal.
Chief Justice Archie expressed incredulity.
“That was reckless,” the Archie said. “As a professional and as an officer of the court you have a duty to the court and you are required to check the information filed. The client is not running you.”
At the heart of this mysterious case are the events that took place about five years ago on the night of August 20, 2008, at San Juan, at the corner of the ironically-named Real Street and Lover’s Lane.
Three months after his 28th birthday, Neil Eligon,died after being shot at by the police. His brother, Herbert, in June last year brought a civil lawsuit against the State, accusing the police of negligence, assault and battery and wrongful death.
According to court documents filed by lawyer Sylesh Ramjattan (the Gordon Street, San Fernando, attorney on the legal team with Taurean Dassyne) Eligon was unarmed and was in a car with another man when police surrounded the car.
In public court documents, obtained by Sunday Newsday, the attorney deposes, “the deceased was of good character and had no convictions and was never charged for any offence at the time of his death.”
The attorney continues, “the deceased was unarmed and was driving his motor vehicle...in the vicinity of Real Street, San Juan, around 9.20pm in the company of one ‘Magnus Charles’ when police officers attached to Morvant Police Station...surrounded the car of the deceased and....with excessive force wrongfully shot the deceased multiple times.” He died after emergency treatment at the Eric Williams Medical Sciences Complex. He was shot “multiple times” on the back, chest and shoulder, the civil action states.
The lawyers for the dead man’s family say the police were negligent and failed to investigate to even find out his name; mistook him for Magnus Charles; failed to check whether Eligon was armed or not; used excessive force and “indiscriminately” discharged their weapons.
The lawyers state Eligon was “a healthy, vigorous man” employed as a supervisor at a business they named as Elli’s Tree Trimming and Lumber Company, earning $5,600 a month. On behalf of his estate, the dead man’s family is seeking damages for loss of earnings “to date and continuing” - potentially hundreds of thousands - as well as other damages for administrative expenses and aggravated / exemplary damages. But the State has a different story to tell.
In a defence filed by the Chief State Solicitor, the State says the police never shot at Eligon. Instead, they took aim at another man whom they reportedly thought was armed.
In documents filed at the High Court last October by attorneys Lee Merry and Javier Forrester, the State says they were conducting a road-block when they saw Magnus Charles in the car, a beige B16 Nissan motor vehicle.
“There were two occupants in the said vehicle, namely Magnus Charles, who was the driver, and the deceased, who was the front seat passenger,” the State says.
The defence document states, “The police officers recognised Magnus Charles as he was well known to them in relation to previous offences and incidents with the police. At that time, there were outstanding warrants for arrest for the said Magnus Charles for firearm related offences and other serious crimes.”
The account continues, “Sergeant Alexander, PC Reyes, PC Toney and PC Ali took up strategic positions on the southern side of the road on the driver’s side of the vehicle and ordered Magnus Charles, the driver of the said vehicle, to stop. The vehicle came to a stop.”
“When the vehicle came to a stop, both Magnus Charles and the deceased were ducking inside the vehicle,” the State says. “Sergeant Alexander ordered both men to exit the vehicle through the door on the driver’s side in accordance with normal police practice when dealing with multiple occupants of a vehicle who are deemed suspicious and/or have outstanding warrants. This was in an effort to maintain control over both occupants of the said vehicle and to have a clear view of them while they exited.”
The State says Magnus Charles - who also died after being shot at - pulled out an object resembling a firearm. The lawyers depose, “Magnus Charles exited the said vehicle by crawling out of the driver’s side door with the deceased immediately behind him. While exiting, Magnus Charles placed his chest onto the roadway and from under the driver’s side door, he pointed a black object resembling a firearm in the direction of Sergeant Alexander, PC Reyes, PC Toney and PC Ali.”
The State continued, “Sergeant Alexander alerted the other officers to the object believed to be a firearm and they all manoeuvred towards the ground.
Sergeant Alexander ordered Magnus Charles to put down the object resembling a firearm. Despite this command, Sergeant Alexander, PC Reyes, PC Toney and PC Ali heard two explosions from the vicinity of the said vehicle and saw flashes of light which came from the front of the object resembling a firearm that Magnus Charles was holding and they concluded that Magnus Charles was shooting at them.”
The State says the police, all trained in firearms, then became fearful.
“Sergeant Alexander, PC Reyes, PC Toney and PC Ali became fearful for their lives as well as the lives of the other officers and individuals in the vicinity of the incident (not identified) as they believed that they were in immediate danger,” the State says. “In an effort to defend themselves and protect the other persons present, the said police officers returned fire in the direction of Magnus Charles.”
The document states, “When they returned fire, the deceased was on the back of Magnus Charles. Magnus Charles and the deceased attempted to rise from the roadway and Magnus Charles again pointed the object resembling the firearm in the direction of the said police officers and several loud explosions were heard and flashes of light observed.”
According to the lawyers, “The said police officers again returned fire.
The deceased was at first shielding himself behind Magnus Charles but then attempted to run away by proceeding to the front of the vehicle.”
The State says, “Magnus Charles fell to the ground next to the said vehicle and the deceased fell into a drain in the vicinity of the left rear door of the said vehicle at the side of the road. At no time did the police officers shoot at the deceased since he posed no immediate threat to them.”
But the dead man’s family say otherwise. In court on January 15, Eligon’s brother Herbert spoke of a unnamed female witness whom, he said, had different evidence.
Questioned by Chief Justice Ivor Archie, Herbert, speaking from the public gallery of the Court of Appeal on January 15, said he had documents, never disclosed in court before, showing his brother was shot five times. He said he had information from the unnamed female witness and had tried several times to meet her subsequently to get her to agree to testify in court. He said he on one occasion waited for her in a car outside her home. He said she did not want to cooperate and alleged she was being intimidated by the police.“She said a whole set of them was only coming to see her,” Herbert said from the public gallery.
At the High Court, when the lawsuit was first heard before Justice Andre Des Vignes, lawyers for the man’s family were not able to produce this witness. At an in-chambers meeting with the judge they did not name the witness. Des Vignes threw the case out.
Lawyers for the dead man, however, filed an appeal at the Court of Appeal.
Archie questioned why Hebert had never before given his lawyers the evidence he claimed to have. He further queried whether the witness would be willing to testify now, all these years later, and whether the lawyers in the case, and Eligon’s family, would even be able to give an address for service of a summons.
Still, after expressing disapproval over the management of the case, the Court ordered the case to be remitted to Justice Andre Des Vignes. Archie said there were other procedures which could have been adopted in the event that the witness was a no-show, for instance, a witness summary statement could be submitted under the civil procedure rules.
“In all the circumstances we think that given the difficulties that may have been attendant upon getting evidence that the judge may have been premature in dismissing the matter,” Archie then said. But, looking at the lawyers with a stern face, he added “the way in which this matter has been advocated is less than satisfactory.”
In coming weeks, it will be for Justice Des Vignes to get to the bottom of the case of the invisible witness.