REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

No. CV 2007-1747

BETWEEN

DEOSARAN PALAKDHARI

Claimant

AND

THE ATTORNEY GENERAL

Defendants

Before The Honourable Madam Justice Dean-Armorer

Mr. Ahmed for the Claimant

Ms. Jodhan for the Defendant

Introduction:

This was a claim for damages for malicious prosecution and wrongful arrest. The

Claimant, Deosaran Palakdhari, was arrested at his home by P.C. Gadar, a Police Officer

acting as agent of the State. In this case, the Court considered whether the action of the

arresting officer was hasty and premature, so as to negate the presence of reasonable and

probable cause for laying charges against the Claimant.

Facts:

1. In May 2003, the Claimant had been employed by Mr. Dhansam Dhansook and

Mr. Alvin Panalal as a watchman, to guard a drilling and seismic site in the

Ecclesville Forest, Rio Claro.

2. Mr. Dhansook and Mr. Panalal had been contracted to supply labour to the Tera

Seis Limited.

of 21

3. The Claimant was required to guard drilling equipment, which had been left by

the crew overnight. He received wages of $110.00 per night and was paid by Mr.

Dhansook every Wednesday.

4. On the 14th May, 2003, after the Claimant had been employed for a period of two

months, his services were unexpectedly and unceremoniously terminated.

5. On the following day, 15th May, 2003, the Claimant visited Mr. Dhansook in the

hope of learning why his employment had been terminated. The Claimant’s

uncontradicted evidence was that he received no explanation from Mr. Dhansook.

Instead, Mr.Dhansook questioned the Claimant about a damaged Man Pump,

which had been burnt. The Claimant denied any knowledge of the damaged

pump.

6. On 16th May, 2003, the Claimant was arrested at his home by P.C. Ramnarine

Gadar No. 12843 and P.C. Navin Maraj. The Claimant alleged that a party of

police officers pounded on his door and upon entry cursed the Claimant and his

wife. P.C. Gadar denied that the pounding or the cursing ever occurred. His

testimony was unshaken in cross-examination and I accept Mr. Gadar’s word on

this issue.

7. The Claimant’s arrest was pursuant to three warrants, which were obtained by

P.C. Gadar following his swearing of Informations at the Rio Claro Magistrates

Court.

8. Later that night, the Claimant was charged with malicious damage to property and

possession of a firearm. He was placed in custody and detained for three nights

and two days until he was granted bail on 19th May, 2003.

9. After thirteen adjournments, all sought by the prosecution, the first offence of

malicious damage was dismissed on 28th April, 2005, after the prosecution

witness failed to appear. The second charge as to possession of a firearm was

of 21

dismissed on 30th June, 2005, after the prosecution informed the Court that it

could not establish that the accused was in possession of a firearm within the

meaning of the Firearm Act.

10. In the defence of the Attorney General, the Defendant admits that P.C. Ramnarine

Gadar laid three Informations against the Claimant. The Attorney General denies

however that P.C. Gadar had been actuated by malice or that he lacked reasonable

and probable cause.

11. In support of the Attorney General’s denial of reasonable and probable cause,

P.C. Gadar, in his witness statement testified that, while on duty at the Rio Claro

Police Station he received a report from Dhansam Dhansook.

12. It was the uncontradicted evidence of P.C. Gadar that after having received the

report of Mr. Dhansook he left on enquiries to Ecclesville, Rio Claro. P.C. Gadar

testified that he took statements from Mr. Ramnarine Singh and Mr. Bickram

Ragoobar, both of whom were employed as watchmen with the Tera Seis

Trinidad Limited.

13. The statements from Mr. Ramnarine and Mr. Ragoobar, which had been recorded

by P.C. Gadar, were annexed to the Witness Statement of P.C. Gadar.

14. In the course of the hearing, learned Counsel Mr. Ahmed objected to the

admissibility of the statements of Mr. Ramnarine and Mr. Ragoobar, on the

ground that they constituted inadmissible hearsay.

15. This Court overruled the objection and held that the state of mind of the arresting

officer is relevant to the issue of whether or not the officer had reasonable and

probable cause to suspect that the arrested person was probably guilty of the

offence in question. The statements were admissible not for the truth of the

of 21

contents of the statements, but for the fact that the statements were communicated

to P.C. Gadar as the prosecutor.

16. P.C. Gadar testified that Mr. Ramnarine Singh, by his statement, reported that the

Claimant accused him of making him (the Claimant) lose his job. Mr. Ramnarine

and Mr. Ragoobar also informed P.C. Gadar that the Claimant had a cutlass. Mr.

Ramnarine reported as well that they discovered the burnt and damaged

equipment. P.C. Gadar testified that Mr. Singh and Mr. Ragoobar showed him the

burnt equipment which included: 3 burnt water pumps, a burnt compressor, a

burnt drill and a quantity of chopped water and air hoses.

17. P.C. Gadar testified that based on the report of Mr. Ramnarine Singh and Bickram

Ragoobar, he walked along a line leading to the Ecclesville Forest, where he

observed a tree that was scorched as well as other damaged equipment. He later

observed a tractor with a carriage in tow. On the carriage he observed damaged

equipment, which was identified by Mr. Singh and Mr. Ragoobar as the

equipment in respect of which the report had been made.

18. P.C. Gadar deposed that he spoke to the two persons who were seated on the

tractor, that is to say Jimmy Ramos and Lincoln Duntin. From these two men,

P.C. Gadar received a report that the damaged equipment had been left in tact on

the night of May 14, 2003.

19. P.C. Gadar testified that he also interviewed Suresh Kissoon, who positively

identified the damaged goods as belonging to Tera Seis Limited.

20. At the beginning of the trial, learned attorneys for the Attorney General sought the

Court’s leave to rely on a Supplemental witness statement of P.C. Gadar. Leave

was sought pursuant to Part 29.8 of CPR 1998. Learned Counsel, Mr. Ahmed,

objected to the admissibility of the Supplemental witness statement on the ground

of the lateness of the application and the consequential prejudice that would

of 21

accrue to the Claimant. The Court refused permission to use the Supplemental

witness statement.

21. Under cross-examination P.C. Gadar admitted that neither Suresh Kissoon nor

Ramos nor Duntin made any allegation against the Claimant. P.C. Gadar

admitted that neither Ramos nor Duntin linked the damage to the Claimant.

22. P.C. Gadar admitted as well that when he visited the two sites, he found no items

or equipment or cutlass belonging to the Claimant.

23. P.C. Gadar admitted further that according to his witness statement the only

reports, which linked the Claimant to the reported incident, were the reports of the

two watchmen, Mr. Ramnarine Singh and Bickram Ragoobar.

24. P.C. Gadar testified that he visited the Claimant’s home for the purpose of

interviewing him, but that he was unsuccessful because he was told by a young

lady that the Claimant was not at home.

Under cross-examination, it was suggested to P.C. Gadar that he never visited the

Claimant’s home. P.C. Gadar insisted that in fact he visited the Claimant’s home

on 15th May, 2003 and that he was told by a young lady that the Claimant was not

at home.

25. No issue is joined on the pleadings as to P.C. Gadar’s visit to the Claimant’s

home. However, in so far, as an issue appears to arise in cross-examination, the

Court reminds itself that in an action for malicious prosecution, the burden is

carried by the Claimant to prove an absence of reasonable and probable cause. In

so far as there are bald assertions on either side, it fell to the Claimant to redouble

his efforts to prove that P.C. Gadar never visited.

This may have been achieved, for example, by calling the Claimant’s daughter,

who, according to P.C. Gadar, reported that the Claimant was away from home.

of 21

26. On the evidence before me, however, the Court is constrained to accept the

testimony of P.C. Gadar as unshaken by cross-examination that in the course of

his investigations he visited the Claimant’s home in order to interview him, but

was unable to do so because the Claimant was not at home.

27. This witness admitted that it was important to interview the Claimant, according

to him for the purpose of “fairness” but admitted that he made only one attempt

to visit him during the day on the 15th May, 2003 and that his visit on 16th May,

2003 was for the purpose of executing the warrants of arrest.

28. P.C. Gadar alluded to further efforts to find the Claimant. When asked in cross-

examination for details of his further efforts, P.C. Gadar stated that he spoke to

several unnamed persons by the Ecclesville Drive Structure. In my view, the

evidence of further efforts is both tenuous and improbable. I do not accept that

any further efforts were made by P.C. Gadar to interview the Claimant. His

efforts came to an end with his unsuccessful visit to the Claimants’ home.

Law:

1. In an action for malicious prosecution, the Claimant is required to show the

existence of four essential ingredients:

(a) that the law was set in motion against him on a charge for a criminal

offence;

(b) that he was acquitted of the charge or that it was otherwise determined

in his favour;

(c) that the prosecutor set the law in motion without reasonable and

probable cause;

of 21

(d) that in setting the law in motion, the prosecutor was actuated by

malice.

See Wills v. Voisin (1963) 6 WIR 50 at 57A.

2. Reasonable and probable cause has been defined as:

“An honest belief in the guilt of the accused based on a full conviction

founded upon reasonable grounds, of the existence of a state of

circumstances, which assuming them to be true, would reasonably lead

any ordinarily prudent and cautious man, placed in the position of the

accuser, to the conclusion that the person charged was probably guilty of

the crime imputed.”

See Hicks v. Faulkner [1881-5] A.E.R. 187 at 191 B-C.

3. The burden of proving the absence of reasonable and probable cause in actions for

malicious prosecution is carried by the Claimant. See Hicks v. Faulkner.

It is generally accepted that factors and considerations that go to establish

reasonable and probable cause or conversely the want of it in an action for

malicious prosecution are substantially the same as those which to go prove or

disprove reasonable and probable cause in an action for wrongful arrest. See

Irish v. Barry (1965) 8 W.I.R. 177 per Mc Shine JA at 186.

4. At p. 192 B-C, Hawkins J continued:

“The question of reasonable and probable cause depends in all cases not

upon the actual existence, but upon the reasonable bona fide belief in the

existence of such a state of things as would amount to a justification of the

course pursued in making the accusation complained of. No matter

of 21

whether the belief arises out of the recollection and memory of the

accuser, or out of information furnished to him by another. It is not

essential in any case that facts should be established proper and fit and

admissible as evidence to be submitted to the jury upon an issue as to the

actual guilt of the accused. The distinction between facts necessary to

establish actual guilt and those required to establish a reasonable bona

fide belief in guilt should never be lost sight of in considering such cases

as I am now discussing. Many facts admissible to prove the latter would

be wholly inadmissible to prove the former.”

5. Lord Denning in the case of Glinski v. Mc Iver (1962) A.C. 726 at 758, approved

the definition of Hawkins, J:

“In the first place, the word “guilty” is apt to be misleading. It suggests

that, in order to have reasonable and probable cause, a man who brings a

prosecution, be he a police officer or a private individual, must, at his

peril, believe in the guilt of the accused. That he must be sure of it, as a

jury must, before they convict. Whereas in truth he has only to be

satisfied that there is a proper case to lay before the court…. After all, he

cannot judge whether the witnesses are telling the truth. He cannot know

what defences the accused may set up. Guilt or innocence is for the

tribunal and not for him…. So also with a police officer. He is concerned

to bring to trial every man who should be put on trial, but he is not

concerned to convict him…. Were it otherwise, it would mean that every

acquittal would be a rebuff to the police officer. It would be a black mark

against him … No, the truth is that a police officer is only concerned to

see that there is a case proper to be laid before the court.

Next the word “honestly” may in some cases be misleading also. It

suggests that, in order to have reasonable and probable cause, a man who

brings a prosecution must bring to bear a fair and open mind before he

makes the charge. If this be so, then a belief which is distorted by malice

of 21

or biased with an improper motive could hardly be said to be an honest

belief. That is why a jury, which has found “malice”, will very likely find

also “no honest belief.” To them it is the same thing. Yet we all know

that malice or improper motive is never a ground for saying there is no

reasonable or proper cause. In the words of Lord Mansfield: “From the

most express malice, the want of “ probable cause cannot be implied”:

See Johnstone v. Sutton1.”

6. In Dallison v. Caffery (1965) 1 Q.B. 348, Lord Denning M.R. at page 369 E-G of

the judgment held that positive identification of the suspect as the perpetrator of

the crime tended to prove reasonable and probable cause:

“The final point taken by Mr. Jukes was on the general question whether

there was any evidence on which the judge could find as he did that there

was reasonable and probable cause for the prosecution. He said he

should have found that there was a want of reasonable and probable

cause. I cannot accede to this suggestion. It seems to me that the

positive identification by Miss Phillips, coupled with the statement by

James Long (which I think can be taken into account, despite the fact that

he afterwards retracted it) and the phantom “Jock”, all show that Caffery

had reasonable and probable cause for the prosecution. True it is that

Dallison was innocent all the time. But that is no reason for making a

police officer liable when he has only done his duty in investigating the

crime …”

7. The House of Lords in O’Hara v. Chief Constable of the Royal Ulster

Constabulary (1997) 1 All.E.R. 129, discussed the requirements which comprise

‘reasonable grounds for the suspicion which the officer has formed’ and stated the

following at page 139 B-B. Per Lord Hope:

1 1 Term Rep 493, 545.

of 21

“This means that the point does not depend upon whether the arresting

officer himself thought at that time that they were reasonable. The

question is whether a reasonable man would be of that opinion, having

regard to the information, which was in the mind of the arresting officer.

It is the arresting officer’s own account of the information which he had

which matter, not what was observed by or known to anyone else. The

information acted on by the arresting officer need not be based on his own

observations, as he is entitled to form a suspicion based on what he has

been told. His reasonable suspicion may be based on information, which

has been given to him anonymously, or it may be based on information,

perhaps in the course of an emergency, which turns out later to be wrong.

As it is the information which is in his mind alone which is relevant

however, it is not necessary to go on to prove what was known to his

informant or that any facts on which he based his suspicion were in fact

true. The question whether it provided reasonable grounds for the

suspicion depends on the source of his information and its context, seen in

the light of the whole surrounding circumstances.”

Malice

8. At page 67 B of the Wills v. Voisin2 judgment, Justice of Appeal Mc Shine stated

that:

“… malice and reasonable and probable cause must unite in order to

produce liability … malice, i.e., an improper motive the onus of proof of

which also rests on the plaintiff-respondent …”

Brown v Hawkes3

9. In Brown v. Hawkes at page 722 Cave J. attempted to define “malice” and stated

as follows:

2 (1963) 6 W.I.R. 50 3 (1891) 2 QB 718.

of 21

“Now malice, in its widest and vaguest sense, has been said to mean any

wrong or indirect motive; and malice can be proved, either by shewing

what the motive was and that it was wrong, or by shewing that the

circumstances were such that the prosecution can only be accounted for

by imputing some wrong or indirect motive to the prosecutor. In this

case, I do not think that any particular wrong or indirect motive was

proved. It is said that the defendant was hasty and intemperate … He

may also have been hasty, both in his conclusion that the plaintiff was

guilty and in his proceedings; but hastiness in his conclusion as to the

plaintiff’s guilt, although it may account for his coming to a wrong

conclusion, does not shew the presence of any indirect motive …”

10. At page 723, Cave J. commented as follows:

“In this country we rely on private initiative in most cases for the

punishment of crime; and while, on the one hand, it is most important

firmly to restrain any attempt to make the criminal law serve the purposes

of personal spite or any other wrongful motive, on the other hand it is

equally important, in the interest of the public, that where a prosecutor

honestly believes in the guilt of the person he accuses, he should not be

mulcted in damages for acting on that belief except on clear proof, or at

all events reasonable suspicion, of the existence of some other motive than

a desire to bring to justice a person whom he honestly believes to be

guilty.”

11. At page 728, Lord Justice Kay stated as follows:

“As I understand the argument for the plaintiff, it was said that the

evidence to prove malice was that the defendant did not make proper

inquiry as to the facts of the case. If that is all, and if that evidence is

sufficient, the result would be that the finding on the first question put to

of 21

the jury, that the defendant did not take proper care inquire into the facts

of the case, would, without more, determine the action in favour of the

plaintiff. That cannot be so and when I look at the evidence (as I have

done with care) to find what evidence there was of a sinister motive, I can

find none on which the jury could reasonably find that the defendant was

actuated by malice.”

Cecil Kennedy v. WPC Morris and or.4

12. In Kennedy v. Morris, a 2005 decision of the Court of Appeal, the Appellant had

been arrested by the first and second Respondents. The Appellant was charged

with assault occasioning actual bodily harm and appeared in the Tunapuna

Magistrates’ Court, to answer these charges, at least twenty times before the

charges were dismissed against him. He brought an action for malicious

prosecution, which was eventually dismissed

13. At paragraph 17, of his judgment, the learned Sharma JA (as he then was) cited

the case of Hicks v. Faulkner and relied on the definition of ‘reasonable and

probable cause’. The learned Appellate Judge noted that the absence of

reasonable and probable cause is a question to be determined by the judge.

14. At paragraph 20, Sharma JA referred to Chatfield v. Comerford (1866) 4 F&F

1008, where it was held that a prosecutor is entitled to act on reasonable hearsay

evidence. The learned Justice of Appeal referred as well to Lister v. Perryman

(1870) LR 4 HL 521, as providing authority for the proposition that:

“… any omission on the part of the prosecutor to sift information which

appears to be suspicious, may be evidence of the want of reasonable and

probable cause …”

4 CA 2257/1993.

of 21

15. Later in his judgment, Justice of Appeal Sharma referred to Baptiste v. Seepersad

HC 367 of 2001, a case in which the accused went voluntarily to the police

station. He was merely told of the allegations against him. In Baptiste v.

Seepersad, it was held that the Defendants did not meet the test of reasonable and

probable cause.

16. The learned Justice of Appeal Sharma distinguished Baptiste v Seepersad from

the case before him. In Kennedy v Morris, the arresting officer had made several

unsuccessful attempts to contact the suspect before she eventually laid the charge.

In dismissing the appeal, Justice of Appeal Sharma held that the first respondent,

WPC. Morris had not arrested the appellant on mere suspicion. Sharma JA held:

“On the evidence, a report was made, the accused, after several attempts,

could not be contacted and the first defendant/respondent was therefore

entitled to act as she did …”

Irish v. Barry5

17. The case of Irish v. Barry is a decision of the Court of Appeal of Trinidad and

Tobago and is of considerable vintage, having been decided in 1965.

18. The well-known facts of that case sprung from the loss of a $5.00 note by a small

boy and to the subsequent arrest and prosecution of the Respondent for larceny of

the $5.00. Irish v. Barry, in spite of its age, is useful for the determination of the

instant matter, because it addresses the effect of hasty action on the part of an

arresting and a prosecuting officer on the presence or absence of reasonable and

probable cause.

19. At page 180 G of the case, Wooding C.J. stated as follows:

“The appellant acted on information received. He had no personal

knowledge of any of the relevant facts. It is therefore to inquire what

5 (1965) 8 W.I.R. 177

of 21

information he had at the time, whether it was such as justified him in

giving it credit, and whether the suspicion which it aroused was a

reasonable suspicion … The decision whether a suspicion is such as will

justify effecting an arrest is sometimes a delicate one to make since, as

Lord Wright pointed out [1963] All ER at p. 613):

‘police officers, in determining whether or not to arrest, are not

finally to decide the guilt or innocence of the person arrested.

Their functions are not judicial, but ministerial, and it may well be

that if they hesitate too long when they have a proper and sufficient

ground of suspicion against an individual, they may lose an

opportunity of arresting him, because in many cases steps have to

be taken at once in order to preserve evidence. I am not saying

that as in any way justifying hasty or ill-advised conduct. Far

from that, but once there is what appears to be a reasonable

suspicion against a particular individual, the police officer is not

bound, as I understand that law, to hold his hand in order to make

further inquiries if all that is involved is to make assurance doubly

sure’.”

20. In the course of his decision Wooding CJ referred to the words of Scott LJ in

Dumbell v. Roberts [1944] 1 All ER 326:

“The principle of personal freedom that every man should be presumed

innocent until proven guilty applies also to the police function of arrest –

in a very modified degree it is true, but at least to the extent of requiring

them to be observant, receptive and open-minded, and to notice any

relevant circumstance which points either way, either to innocence or to

guilt. They may have to act on the spur of the moment and have no time

to reflect and bound there to arrest to prevent escape, but where there is

no danger of the person who has … aroused their suspicion, that he is an

of 21

offender attempting to escape, they should make all presently practicable

inquiries from persons present or immediately accessible who are likely to

be able to answer their enquiries forthwith. I am not suggesting a duty on

the police to try to prove their innocence … but they should act on the

assumption that their prime facie suspicion may be ill-founded. The duty

attaches particularly where slight delay does not matter, because there is

no probability in the circumstances of the arrest … of the suspected

person running away … The duty attaches simply because of the double-

sided interest of the public in the liberty of the individual as well as in the

detection of crime …”

Damages:

1. Holison Stewart v the Attorney General of Trinidad and Tobago # 12165; PC

Carlos Carr: the Plaintiff claimed damages for assault, false imprisonment and

malicious prosecution. He succeeded in his claim for malicious prosecution only –

in part. The Court awarded damages in the sum of $15,000.00 and in so doing

took into account the Plaintiff’s success in proving only the claim for malicious

prosecution, albeit in part, and also the fact that he was deprived of his liberty for

2 days.

2. Anthony Sorzano and Steve Mitchell v The A.G and Dawson Victor HCA S. No.

46 of 1996, HCA No. 162 of 1996. Here the Court made an award for malicious

prosecution in the sum of $10,000.00. The Court took into account the fact that

the Plaintiff was never before arrested. The charges in this case were murder and

attempted murder.

3. Henry Jangoo v Estate Constable Noel Gomez and Port Authority of Trinidad

and Tobago HCA 2652 of 1978: general damages of $10,500.00 were awarded.

of 21

Reasoning and Decision:

1. By his Claim Form and Statement of Case, the Claimant seeks damages for

wrongful arrest. It is well established as a matter of principle that an arrest is

justified when it is effected pursuant to a warrant. See Ragoobar Ramkissoon v.

P.C. No. 7924 Ramdath & Ors. HCA No. 3085 of 1976, where the Honourable

Justice Edoo (as he then was) said at p. 6:

“The question whether Ramdath had reasonable and probable cause for

the arrest of the plaintiff, does not … arise in a case where a warrant has

been issued … Where a valid warrant has been issued by a judicial

officer acting within his jurisdiction and it has been properly executed by

the officer of the law to whom it was entrusted, no liability in tort can

attach to such person in pursuance thereof …”

2. There was no dispute, in the instant case, that P.C. Gadar effected the Claimant’s

arrest pursuant to three warrants. I therefore hold that the arrest of the Claimant

was justified by virtue of the warrants and the claim for damages for wrongful

arrest is accordingly dismissed.

3. In respect of the action in malicious prosecution there is no dispute that the first

two elements of the tort are present in this case, that is to say that the law had

been set in motion against the Claimant and that the charge was determined in his

favour. The requisite elements are present in respect of both offences for which

the Claimant had been prosecuted, that is to say unlawful and malicious damage

to property and possession of a firearm.

4. It therefore falls to this Court to decide whether the Claimant has successfully

proved the absence of reasonable and probable cause on the part of the arresting

officer and whether the arresting officer had been actuated by malice.

of 21

5. In so doing the Court is required to enquire whether the arresting officer held an

honest belief that the Claimant was probably guilty of the offence. The Court is

required to consider the information that was in the mind of the prosecuting

officer at the time that the charge was laid. In discerning the information in the

mind of the prosecuting officer, the Court is required to consider the officer’s own

account of the information which he had. See O’Hara v. Chief Constable of the

Royal Ulster Constabulary (1997) 1 All ER 129.

6. By his account, P.C. Gadar was seized of the following information:

(i) That there was a report of a malicious damage to property.

(ii) Having visited the work sites, P.C. Gadar was aware that equipment

had been damaged and that the damaged equipment belonged to Tera

Seis Limited.

(iii) By virtue of reports, P.C. Gadar had reason to believe that the damage

took place after the close of work on the 14th May, 2003 and before the

commencement of work on 15th May, 2003.

(iv) P.C. Gadar also had a report that the Claimant had been a watchman

with Tera Seis, that his employment had been terminated on 14th May,

2003 and that with cutlass in hand he vowed to “mess up everything

…”

(v) However, P.C. Gadar had no opportunity to hear what the Claimant

had to say in his own defence.

7. The Court is required to sift this information through the view of the ordinarily

prudent and cautious person. The Court is required to consider whether the

ordinarily prudent and cautious person would be led, by the information, to the

of 21

conclusion that the Claimant was probably guilty of the offence for which he was

charged.

8. In so doing, the Court reminds itself that the officer who lays the charge was not

required to be convinced of the guilt of the Claimant, but only that he was

probably guilty.

9. In my view, the ordinarily prudent and cautious person would take into account

the reported threat, which the Claimant made on the 14th May 2003 that he would

“mess up everything”. In my view, the ordinarily cautious and prudent person

would be struck by how soon after the threat there was a discovery of damaged

equipment. The conjoint effect of these two factors coupled with the absence of

any other suspect would in my view lead the ordinarily prudent and cautious

person to the conclusion that the Claimant was probably guilty, of the offence of

unlawful and malicious damage to property.

10. There was no reason to believe that the reports were suspicious. The fact that the

equipment belonging to the company had been damaged was beyond challenge.

There was nothing in the evidence to suggest that the report of the Claimant’s co-

workers was suspicious, so as to require the officer to conduct further

investigations, as required by the case of Lister v. Perryman6.

11. P.C. Gadar may be faulted for omitting to renew his efforts to contact the

Claimant. In this regard, the Court has to decide whether P.C. Gadar acted too

hastily. In my view the words of Lord Wright in McArdle v Egan7, are applicable:

“As long as there is reasonable suspicion…the police officer is not

bound…to hold his hand…if all that is involved is to make assurance

doubly sure….”

6 (1870) LR 4 HL 521 7 [1933] All ER 611

of 21

In my view, in the instant case, conducting an interview with the Claimant was as

P.C. Gadar said, for the purpose of being fair to him. One would expect that the

Claimant would have denied that he committed the offence and may also have

been able to provide an alibi. The duties of the arresting officer are, however,

ministerial and not judicial. P.C. Gadar could not decide on the guilt or innocence

of the Claimant and was entitled in my view to proceed to act on reasonable

suspicion.

12. Accordingly, I hold that in respect of the charge of unlawful and malicious

damage to property the Claimant has failed to prove the absence of reasonable

and probable cause. Where the absence of reasonable and probable cause is not

proved, the question of malice does not arise See Cecil Kennedy v. AG & Other8.

13. I now turn to consider whether P.C. Gadar had reasonable and probable cause to

suspect that the Claimant was guilty of the offence of unlawful possession of a

firearm.

14. The available evidence in respect of the second charge is altogether very different

from the evidence in respect of the first charge. P.C. Gadar’s witness statement,

as well as the statements on which he relied were devoid of any reference to

firearms.

The statements of Ramnarine Singh and Bickram Ragoobar, as well as those of

Suresh Kissoon, Jimmy Ramos and Lincoln Duntin contain no reference to the

use or presence of firearms.

15. On the information held by P.C. Gadar, according to the evidence, the ordinarily

prudent and cautious person would remark at the total absence of evidence

relating to the possession of a firearm and would decide against laying such a

charge.

8 CA 87/2004.

of 21

Accordingly, it is my view and I hold that the Claimant has established an

absence of reasonable and probable cause to lay a charge for the possession of

firearm.

16. From the absence of reasonable and probable cause, the Court may infer the

presence of malice.

17. Learned Attorneys-at-Law for Defendant have argued in their written submissions

that a prosecution which has been laid pursuant to the instructions of a superior

officer cannot be infected with malice.

18. The available authorities suggest that a prosecuting officer will not be liable for

the tort of malicious prosecution where he lays all the facts of his case fairly

before counsel and acts bona fide on the opinion of counsel. See Ravenga v.

Mac Kintosh (1871), 2 BSC 541. Similarly, the fact that the advice of the

Director of Public Prosecution may have been sought is relevant but not

conclusive. See Clerk and Lindsell on Tort (18th

ed.) para 16-31.

19. In my view, the effect of the authorities is that the prosecutor’s reliance on the

advice or instructions of a competent authority will tend to negate the presence of

malice. However such reliance is not conclusive.

20. In the instant case there was no evidence whatsoever upon which P.C. Gadar

could found a belief in the probability of the Claimant’s guilt in respect of the

offence of the unlawful possession of firearms. There was some tenuous

material contained in the supplemental witness statement. The use of the

supplemental statement was not permitted because of its lateness. Accordingly,

the Court is unable to rely on any allegations contained therein.

21. In my view, in this situation, the Court may reasonably infer malice from the total

absence of reasonable and probable cause. The Claimant has succeeded in proving

of 21

the presence of the four (4) ingredients of a successful claim in malicious

prosecution in respect of the charge of possession of a firearm.

22. Accordingly, it is my view and I so hold that the Defendant in this action is,

therefore, liable to the Claimant for malicious prosecution in respect of the

offence of the possession of firearm pursuant to s. 6 (1) of the Firearm Act.

Orders:

1. There will be judgment for the Claimant in respect of his claim for damages for

malicious prosecution arising out of a charge for the possession of a firearm

pursuant to s. 6(1) of the Firearm Act Ch. 16:01.

2. The Claimant’s claim for damages for false imprisonment and wrongful arrest is

dismissed.

3. The Defendant to pay the Claimant General Damages in the sum of $10, 000.00

and Special Damages in the sum of $10, 000.00.

4. The Defendant to pay to the Claimant one third of the costs of this action to be

quantified in default of agreement.

Dated the 25th of July, 2008.

………………………………..

Mira Dean-Armorer

Judge

Judicial Research Assistant: Renee McLean

REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...

Documents

Transcript of REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH...