Judge to rule on novel domestic violence case: Did police, judiciary fail victim?

The content originally appeared on: Trinidad and Tobago Newsday

Samantha Isaacs –

THE State failed Samantha Stacey Isaacs, a domestic-violence victim, a High Court judge was told on Friday. Her abusive, jealous and possessive ex-boyfriend shot her in both legs and the back of the head six years ago.

Justice Robin Mohammed now has to determine if Isaacs’ rights to the protection of the law were infringed because state agents failed to act on her domestic violence complaints. The judge will give his decision on April 25.

Kahriym Garcia killed Isaacs on December 16, 2017, and left her in the road in Carenage. He shot and killed himself when police confronted him hours after.

“The police failed her. They did not protect her. The law does provide protection, but the State failed her,” Senior Counsel Douglas Mendes contended on January 2, at the trial of the lawsuit filed by Isaacs’ mother, Tot Lampkin.

Lampkin’s lawsuit alleges her daughter’s constitutional rights were infringed by state agents’ failure to act on her daughter’s complaints.

She is also alleging this failure deprived her daughter of the right to life, security of the person and equality before the law.

Mohammed is being asked to declare that Isaacs was subjected to cruel and unusual treatment, without respect for her family life and without equality of treatment from public authorities, and the actions of the state agents amounted to discriminatory treatment.

In his submissions, Mendes said despite numerous complaints to the police, including once when they had to put a gun to Garcia’s head because he was cussing them out and threatening Isaacs and family members in their presence, they did nothing.

“She did what she was told she had to do – make a report to the police.”

Mendes also said the Judiciary also failed Isaacs when she tried to get a protection order.

“She then goes to the court and encounters a magistrate who was sceptical and was of the view that she just wanted to fast-track a maintenance application. She did not take the report (of domestic violence) seriously, even though Kahriym did not oppose it,” Mendes said as he read excerpts of what took place at the hearing.

“There is no explanation from the magistrate at all…”

Mendes questioned whether, in cases where a protection order is sought but disregarded and the victim appears in court with a broken limb, “Are you going to say, ‘Oops’? Is ‘oops’ a defence, an explanation?”

Earlier, he said, “Here is a magistrate not doing her duty by providing an interim protection the Domestic Violence Act offers…Maybe things would have turned out differently.

“There is a positive obligation to the right to protection of the law,” he maintained.

In response, Senior Counsel Fyard Hosein said neither a protection order nor an arrest was an absolute solution or guarantee.

“In many cases, the police did their work and the perpetrator gets bail and people are still killed…” he said as an example.

Hosein said to establish a positive obligation, the authority must have known of real and immediate risks and failed to take measures to eradicate those risks.

“There was no negligence in this case,” he said.

Hosein said the police had their jobs to do and had to do so proportionally. He pointed to the four “sporadic” reports Isaacs had made.

“What was the police to do?”

He also warned the judge against creating new rights that did not exist in common law and “create new laws.” This, he said, was for the Parliament to do.

“Do these positive rights amount to a fundamental right?…

“It is not for the Judiciary to extend itself, and do so based on its own aspirations.”

Hosein also said Isaacs had access to the projections and machinery provided by the Domestic Violence Act.

“If the court, as it is being asked to do, polices this relationship, where there was nothing there, it is going to create a lot of problems,” he warned.

Hosein also said the magistrate did not breach any right.

In response, Mendes labelled the State’s arguments “extraordinary and surprising.”

He told the judge they were not asking him to “blaze any trail” that had not already been developed and established in case law and the common law.

“Do not restrain yourself because it is being asked to be done for the first time (in TT).” Mendes insisted the Constitution imposed a positive obligation on the State to act on threats and held the State responsible.

Mendes also pointed out, “We have not said there is an absolute obligation by the police to lay a charge.

“We are dealing with a situation here where the police have offered no excuse for their inaction…or why they did not make a record, as provided for under the Domestic Violence Act.

“We have no explanation why this was not done in this case…or no investigation was done or no action was taken. All we have is an explanation, if you want to call it that, that no one took responsibility.”

He said Isaacs’ right to protection of the law included having the police take her report seriously, investigate it and decide whether to lay charges.

“They did nothing except for playing musical chairs.”

Mendes said in 2017, there was an imminent threat of life which required the police to act. “Kahriym was threatening to kill her, her mother and her mother’s husband.

“Did the police have to wait for it (death) to happen for them to know there was an imminent threat to life?”

He said the State’s arguments were reflective of a complete ignorance of domestic violence.

“It is not easy for a woman to say, ‘I am leaving,’…particularly where there are children involved. There is sometimes an economic necessity for a woman to continue in an abusive relationship.

“Reports of domestic violence must be taken seriously.”

In court documents obtained by Newsday, Isaacs reported she was repeatedly beaten and attacked with a knife, and that Garcia had a gun, harassed her at her workplace, humiliated her by sharing nude images of her and threatened to kill her in the presence of officers, and yet no action was taken.

In court transcripts, she pleaded with a magistrate to grant her a protection order, and although Garcia agreed to stay away, the magistrate refused to grant the order, saying Isaacs was using that as a ploy to get maintenance for her infant son. At one hearing the magistrate dismissed her application seeking a protection order after the matter was stood down for just 22 seconds.

The PCA had recommended disciplinary action against one officer at the Carenage station for neglect of duty to investigate Isaacs’ complaint against Garcia relating to the knife attack.

Clay Hackett also represented Lampkin. Rishi Dass, SC, also appeared for the State.