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

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

SUB- REGISTRY, SAN FERNANDO

CLAIM NO. CV 2009-01274

BETWEEN

NIGEL LASHLEY

Claimant

AND

THE ATTORNEY GENERAL OF

TRINIDAD AND TOBAGO

Defendant

BEFORE THE HONOURABLE MR. JUSTICE PETER A. RAJKUMAR

APPEARANCES:

Mr. Edwin Roopnarine, instructed by Mr. Dassayne for the Claimant

Ms. Raisa Caesar, instructed by Ms. Patricia Cross for the Defendant

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Transcript of Oral Decision

Wednesday 7th December 2011

9.38.42 -9:42

The claimant’s claim is dismissed. The claimant is to pay the defendant’s costs on the basis

prescribed by the Civil Proceedings Rules for an unquantified claim, that is, the sum of $14,000.00.

I find that the defendants had reasonable and probable cause to conduct a search at the claimant’s

premises.

I find that at the time they conducted the search they had reason to believe that the vehicle in the

possession of the claimant, and stored at his yard, was a stolen vehicle.

I find that when they went on the premises and were presented with the receipt they had even further

reason to believe that the vehicle was a stolen vehicle, because

(i) At that point in time they were able to confirm the chassis number of the vehicle, and

(ii) The receipt indicated that the vehicle had been purchased at a significant undervalue, which

corroborated the suspicion that the vehicle was stolen.

On a balance of probabilities I find that the defendants did have a search warrant. I think it is

unfortunate that the search warrant was for arms and ammunition, when (with) the evidence in their

possession at that point in time they would have had a basis for obtaining a search warrant on the

basis that the vehicle in the yard was stolen.

The explanations for the fact that the search warrant dealt with arms and ammunition, and not a

stolen vehicle, were tenuous, but after hearing the evidence of the second witness for the defendant I

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formed the opinion that they thought they had reason, and they thought they had a good enough

reason, for obtaining the search warrant based upon arms and ammunition.

I think that as a matter of guidance it should be indicated to the police that if they have a search

warrant, with specific information disclosing a specific offence, that the search warrant should be

directed to the material that they have the information for.

However, I find it would have been no surprise to the claimant when the police seized his vehicle on

the basis that it was a stolen vehicle, and when they arrested and charged him, on the basis that he

was in possession of a stolen vehicle, and they had cause to believe that he was responsible for it. I

think he was extraordinarily fortunate that he wasn’t charged with anything else, and I find that there

has been no breach of any of his rights as alleged.

There is reasonable and probable cause for the obtaining of the search warrant. It is only unfortunate

that the search warrant, if it was shown to him at all, might have been shown in such a fleeting

manner that he couldn’t remember that it was shown to him.

That is another aspect that the police need to be directed upon. If they do have a search warrant there

should be no secret about it, if it is to be presented to people whose premises they are searching, but,

on balance, this claim is dismissed with costs.

Dated this 7th day of December 2011

Peter A. Rajkumar

Judge

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REASONS FOR DECISION

BACKGROUND

1. The claimant claimed that he was falsely imprisoned pursuant to a search conducted by the

police at his home. The search was purportedly pursuant to a search warrant for arms and

ammunition, though the claimant and his mother both assert that no warrant was shown to them.

2. No arms or ammunition were found at the claimant’s premises.

3. The Claimant was then asked to produce documents to support his claim that he was the owner

of the car parked outside. He produced a receipt for the vehicle.

4. The Claimant was then arrested and taken to the San Fernando Police Station where he was

eventually released on the 12th September, 2008 at around 3:00 p.m. (approximately 36 hours).

5. The vehicle on the premises was taken away by the police officers and never returned to the

claimant. In fact it was subsequently handed over to a third party. The claimant also claimed, in

respect of this vehicle PBO 1282, damages for trespass and detinue and conversion, but abandoned

this claim after evidence was led at trial.

6. The Claimant claimed primarily

a. Damages for false imprisonment and/or unlawful detention from Thursday 11th

September, 2008 from 3:00 a.m. to 4:00 p.m. on Friday 12th September, 2008.

b. Aggravated and/or exemplary and/or punitive damages.

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ISSUES

7.

(1) Whether the search of the Claimant’s premises and the seizure of the motor vehicle were

lawful.

(2) Whether there was reasonable suspicion to justify the arrest of the Claimant;

(3) Whether the police had reasonable grounds for detaining the claimant for the period that they

did.

(4) Whether the claimant was informed of his rights including his right to an attorney.

FINDINGS

8. I find that there is no doubt that the claimant’s vehicle was a stolen vehicle. Its registration

number was not in the records of the licensing department. A check was made of the police data

base which revealed that the motor vehicle PBO 1282 was not a motor car. The only number in

the *BO series with those 4 digits was in fact a black agricultural bell trailer owned by Sunil

Samaroo of 20 Oropuche River Trace, Jones Village Barrackpore.

9. That discrepancy alerted the defendants to the fact that the status of that vehicle justified

further investigation.

10. They claimed that the search warrant was for arms and ammunition because they also had

information that that existed on the claimant’s premises. That claim deserves sceptism, as the

evidence on which that information was based - the word of an “Informant” is vague in the extreme.

11. However, I have no doubt that in fact the defendant’s agents did in fact have sufficient cause

to believe that the vehicle was a stolen vehicle when they came to the claimant’s premises, and that

that suspicion was only compounded when the claimant produced a copy of a receipt for $25,000.00,

(which the police believed to be an undervalue), for the vehicle, and was not able to produce a

certified copy of ownership.

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12. While the failure to provide a certified copy of ownership was not stated to be an offence, or a

contravention of any law. the fact that the registration number matched no known motor car in the

registration records of the licensing department, meant that it was highly unlikely that the claimant’s

transfer had passed the scrutiny of the licensing department as it could not, in those circumstances

have been registered without that discrepancy having been discovered and rectified, if that were even

possible.

13. The defendants were entitled to their suspicion that the claimant’s vehicle was not only stolen ,

but that the claimant knew it to have been stolen, as corroborated by his avoiding a proper transfer at

the licensing department , and relying only on the alleged receipt as evidence of ownership. The

assertion that they had evidence that there were arms and ammunition on the premises of the

claimant is not very credible, especially as none was found. The evidence leaves the continuing

suspicion , and it seems more likely than not, that the police held the view that it was easier to get a

standard form search warrant on that basis, in the belief that they could seize any items on the

premises that disclosed an offence.

14. It would have been far preferable for the police to have obtained the search warrant on the

basis for which they actually had hard evidence– namely that the vehicle was suspected to be a stolen

vehicle, rather than the speculative, and as it turned out, unfounded basis that there were arms and

ammunition on the premises.

15. That would have served to dispel the suspicion that there was in fact no search warrant, as the

claimant contended, and that it was manufactured after the fact, as the mismatch between what the

police claimed to be on the premises, and what they actually found, demonstrated.

16. In the circumstances of this case, however, the defendant’s version, and evidence, is preferred.

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DISPOSITION AND ORDERS

17. The claimant’s claims are dismissed with costs to be paid by the claimant to the

defendant in the sum of $14,000.00.

ANALYSIS AND REASONING

LAW

Reasonable and probable cause to justify the arrest

18. Section 3 (4) of the Criminal Law Act Ch 10.04 provides that Police Officers can arrest “where

a Police Officer, with reasonable cause, suspects that an arrestable offence has been committed, he

may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the

offence.”

19. Similarly, in section 46 (1) (d) of the Police Service Act Chapter 15:01 a police officer has

the power to arrest without warrant a person in whose possession anything is found which may

reasonably be suspected to have been stolen or who may reasonably be suspected of having

committed an offence with reference to such thing.

20. The onus is on the police to justify the arrest of the Plaintiff in an action for unlawful arrest and

to establish reasonable and probable cause for the arrest: (Dallison v Caffery [1965] 1 Q.B. 348 at

370).

21. The test required was stated in O’ Hara v Chief Constable of the Royal Ulster

Constabulary [1997] 1 AER 129 p 138j –139a) per Lord Hope of Craighead as partly objective

and partly subjective. The test is subjective because the arresting Police Officer must have

formulated a genuine suspicion within his own mind that the accused person has committed the

offence.

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22. Further, the test is partly objective as reasonable grounds for the suspicion are required by the

arresting officer and this must be judged at the time when the power is exercised. (See also the

judgement of the Honourable Mendonca J as he then was in Harold Barcoo v A.G of T. & T. and

Browne – HCA 1388 of 1989 delivered December 19, 2001 page 5 –6 where he adopted the

following analysis from the text (Clayton & Tomlinson Civil Actions against the Police (1987).

23. The test whether there was reasonable and probable cause has both subjective and objective

elements.

1. Did the officer honestly have the requisite suspicion or belief?

2. Did the officer when exercising the power honestly believe in the existence of the

objective circumstances which he now relies on as the basis for that suspicion or

belief?

3. Was his belief in the existence of these circumstances based on reasonable grounds?

4. Did these circumstances constitute reasonable grounds for the requisite suspicion or

belief?

24. The first two are subjective and the second are objective and as Mendonca J, as he then was,

pointed out, if the answer to any one of these questions is no then the officer would not have had

reasonable grounds.

25. In determining whether the arresting officer had reasonable and probable cause, the first

enquiry is to ascertain what was in the mind of the arresting officer and to determine whether the

grounds on which the arresting officer relied as the basis for his suspicion were reasonable.

26. Wooding L.J. in Irish v. Barry [1965] 8 W.I.R 177 at page 182 put the two questions to be

separately posed and answered as follows: (1) do those facts warrant a suspicion that a felony has

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been committed, and (2) do they also warrant a suspicion that the person whose arrest is

contemplated committed it or was a party to its commission?

27. It may sometimes be contended that a prosecution is unreasonable, not on the ground that the

prosecutor had no substantial information before him pointing to the guilt of the claimant, but

because he was also aware of countervailing evidence which afforded a good answer to the

charge. A prosecutor has no right to pick and choose among evidence before him, and act only upon

such portions of it as to show that he has good cause for proceeding; nor is he bound to assume that

the theory put forward in the defence is sound (See Clerk & Lindsell 19th Edition paragraph 16-28)

at page 986.

28. Further, the prosecution need not to believe in the probability of conviction and need not test

the full strength of the case: (See Glinski v Mc Iver [1962] A.C. 726, 776 as quoted in Harold

Barcoo v the Attorney General of Trinidad and Tobago and Inspector Phillip Browne HCA

No. 1388 of 1989.)

29. Moreover, there is no duty on the part of the officer to determine whether there is a defence to

the charge but only to determine whether there is reasonable and probable cause for the prosecution

(See Herniman v Smith [1938] AC 305). In Herniman v Smith Lord Atkin said:

“No doubt circumstances may exist in which it is right before charging a man with misconduct

to ask him for an explanation. But certainly there can be no general rule laid down, and where

a man is satisfied, or has apparently sufficient evidence, that in fact he has been cheated, there

is no obligation to call on the cheat and ask for an explanation which may only have the effect

of causing material evidence to disappear or be manufactured. It is not required of any

prosecutor that he must have tested every possible relevant fact before he takes action. His

duty is not to ascertain whether there is a defence, but whether there is reasonable and

probable cause for a prosecution.”

http://www.lexisnexis.com/uk/legal/search/runRemoteLink.do?langcountry=GB&linkInfo=F%23GB%23AC%23year%251938%25page%25305%25sel1%251938%25&risb=21_T13229187245&bct=A&service=citation&A=0.1271418632302218

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30. Further, although the officer must have reasonable and probable cause it is accepted that he

would act on the advice of his superior officers (Glinkski v Mc Iver (supra) page 744).

31. Additionally it is not the duty of the said officer to resolve conflicts of evidence and

knowledge of these conflicts do not demonstrate a lack of reasonable and probable cause nor is

it inconsistent with the prosecutor’s honest belief that there is a case against the accused fit to

go to trial .(See Dallison v Caffery [1965] 1 QB 348 page 376).

32. Also, it is not for the prosecutor to determine whether the witness is in fact telling the

truth - this is the function of the trial judge (See Glinkski v Mc Iver (supra) page 758).

33. In Holgate-Mohammed v Duke [1984] AC 437 it was held that the Wednesbury principles

were to be applied in determining, for the purpose of founding an action at common law for false

imprisonment, whether the discretion conferred upon a constable by section 2(4) of the Act of 1967

to arrest a person without a warrant had been exercised lawfully, namely whether the discretion had

been exercised in good faith and whether all irrelevant matters had been excluded from

consideration.

34. However, in that case since an arrestable offence had been committed, and the constable had

reasonable cause for suspecting the plaintiff to be guilty of the offence, he was entitled to arrest her

under the Criminal Law Act 1967, Act because the interrogation of a suspect in order to dispel or

confirm a reasonable suspicion was a legitimate cause for arrest, so that the fact that the constable,

when exercising his discretion to arrest the plaintiff, took into consideration that she might be more

likely to confess her guilt if arrested and questioned at the police station where there were resources

to record any statement that she might make was a relevant matter and therefore did not render the

exercise of his discretion ultra vires; and that, accordingly, the arrest was not unlawful.

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35. In the case of Edwin Huggins v Attorney General H.C.A. No. 1714 of 1998 at page 5-6 the

Honourable Justice A. Mendonca (as he then was) found that although a search warrant should

reflect the information in the possession of the police upon which they decided to act there may

be a reasonable explanation why this information is not included in a search warrant. As such,

the court accepted the police officer’s evidence that he did in fact have certain information in his

possession at the time of the arrest.

LAWFUL SEARCH OF PREMISES AND SEIZURE OF VEHICLE

36. In Ghani v Jones [1970] 1 QB 693, at page 706 it was held that if in the course of a search the

police come upon any of the goods which show him to be implicated in some other crime, they may

take them provided they act reasonably and detain them no longer then is necessary.

37. A five stage test in relation to search and seizure without a warrant was promulgated at page

708 of this judgment:

First: The police officers must have reasonable grounds for believing that a serious offence has

been committed - so serious that it is of the first importance that the offenders should be caught

and brought to justice.

Second: The police officers must have reasonable grounds for believing that the article in question

is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the

crime was committed (as in the case of the axe used by the murderer) or is material evidence to

prove the commission of the crime (as in the case of the car used by a bank raider or the saucer

used by a train robber).

Third: The police officers must have reasonable grounds to believe that the person in possession

of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his

refusal must be quite unreasonable.

Fourth: The police must not keep the article, nor prevent its removal, for any longer than is

reasonably necessary to complete their investigations or preserve it for evidence. If a copy will

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suffice, it should be made and the original returned. As soon as the case is over, or it is decided

not to go on with it, the article should be returned.

Finally: The lawfulness of the conduct of the police must be judged at the time, and not by what

happens afterwards.

THE EVIDENCE

The Claimant

38. He maintained that the police officers never showed him a warrant.

39. He gave evidence, which was corroborated by the Defendant’s witnesses, that he produced a

receipt from Rodney Lopez showing that he purchased PBO1282 for $25,000.00.

40. He also indicated that he was in possession of a Cover Note for Insurance which was in the

glove compartment of the said vehicle.

41. He gave evidence that he was taken from his home around 3:00 am. to the San Fernando Police

Station where he was eventually released on 12th September, 2008 around 4:00 pm.

The evidence of Joy Lashley

42. She gave evidence that “the officers never showed me or anyone a warrant nor did they

indicate to me or anyone that they had a search warrant”

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The evidence of the Defendant’s witnesses

43. The evidence of the police officers was that they arrested the Claimant on suspicion of larceny

of a motor vehicle. (See paragraph 9 Richard Smith’s statement, paragraph 10 of Jameer Hosein’s

statement.)

Police Corporal Jameer Hosein

44. On or around the 9th September 2008, he received information from a police informant whilst

on police enquiries that the Claimant was storing arms and ammunition on the compound of his

house.

Between the 9th to the 10th September he conducted surveillance of the Claimant’s premises.

He performed a search on the police database on the 10th September, 2009 for the Claimant’s car and

found that the licence number on the Claimant’s vehicle belonged to another vehicle.

Although he had found out that the Claimant’s vehicle bore a number that belonged to another

vehicle he only obtained a warrant for arms and ammunition.

No arms and ammunition were found on the Claimant’s premises.

The Claimant produced to him a receipt from Rodney Lopez.

He arrested the Claimant for the suspected larceny of the said motor vehicle.

The evidence of Sergeant Smith

45. He was aware prior to going on the raid that the Claimant’s vehicle had a number plate for a

vehicle that belonged to another person.

That the police officers entered the premises of the Claimant on a search warrant issued for arms and

ammunition.

No arms and ammunition were found on the Claimant’s premises.

The Claimant produced a receipt from Rodney Lopez for the purchase of the vehicle

The receipt produced by the Claimant was insufficient evidence to show that he was the owner of the

vehicle, given the information that they already had about that vehicle number.

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46. The evidence of the defendant therefore is that :-

1. A week prior to 11th September 2008 whilst at the Operations Unit C.I.D, San Fernando

Police Sergeant Richard Smith, Regimental Number, 12302 received information from a

police informant that the Claimant was in possession of firearms and ammunition on the

compound of his house in La Romain without being the holder of a firearm licence.

2. On the morning of 10th September, 2008 Police Corporal Jameel Hosein conducted

surveillance of the Claimant’s premises. A check was made of the police data base which

revealed that the motor vehicle PBO 1282 was not a motor car but in fact a black

agricultural bell trailer owned by Sunil Samaroo of 20 Oropuche River Trace, Jones Village

Barrackpore.

3. A search warrant was obtained in relation to the arms and ammunition as this was the

primary aim of the exercise.

4. On Thursday, 11th September, 2008 around 3:00 am a party of police officers attached to

the CID Operations Unit went to the Claimant’s home to execute the search warrant during

the course of their exercises.

5. Police Corporal Jameel Hosein knocked on the front door. Police Sergeant Richard Smith

identified himself as a police officer. Police Corporal Hosein explained that he had a search

warrant and showed it to the Claimant. The Claimant was asked whether he had arms and

ammunition stored on the premises to which he replied in the negative. Nothing illegal was

found.

6. The Claimant was then informed of the information in relation to the suspected

larceny of the motor vehicle. The Claimant was informed that his vehicle number was

registered to another vehicle, namely a trailer. The Claimant was shown a computer

print out in relation to motor vehicle TBO 1282. The Claimant was asked to produce

his Certified Copy for his vehicle but was unable to do so.

7. Police Corporal Hosein therefore arrested the Claimant for larceny of the said motor vehicle

and informed him of the reason for his arrest, cautioned him and informed him of his

constitutional rights and privileges. The Claimant remained silent.

8. At or around 3:25 am the Claimant and the motor vehicle were taken to the San Fernando

Police Station.

9. The Claimant’s driver’s permit and bank card were also found in the said vehicle when the

vehicle was inspected at the Police Station. The motor vehicle also contained audio system

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and accessories. At the Police Station the Claimant was again informed of his

constitutional rights and privileges and a statement was taken from him.

10. The Claimant was then placed in a cell at the Station. The Claimant was allowed to speak to

his attorney at law at or around 12:05 pm until 12:27 pm on 12th September, 2008. The

Claimant was subsequently released on 12th September, 2008.

11. Meanwhile, Police Corporal Hosein continued enquiries which entailed inter alia, tracing

the vehicle by its engine and chassis numbers. The investigation revealed that the motor

vehicle was in fact motor vehicle registration number PCA 2196, owned by Auto Wreck

Japan Ltd. Located at 1 B Eastern Main Road Petit Bourg. The Stolen Vehicle Squad, Port

of Spain was also contacted to assist with finding the current owner and they revealed

that the vehicle belonged to a Kenrick Davis of # 8 Carmille Terrace Boissere #2, Maraval.

12. On or around the 23rd December, 2008 the motor vehicle PCA 2196 was returned to Kenrick

Davis, after he presented his certified copy, explained that the vehicle was in fact stolen on

17th June, 2007 and demonstrated to Sergeant Smith that underneath certain stickers on the

glass of the vehicle was the inscription of the chassis and engine numbers of the vehicle.

13. Police Sergeant Smith also observed that the chassis and engine numbers of the said

vehicle matched those on the certified copy for PCA 2196. A statement was taken from

Kenrick Davis and he was asked to sign for receipt of the vehicle which was then returned

to him.

14. The Claimant’s attorneys at law wrote to the Commissioner of Police on 27th September,

2008. This letter was copied to the Attorney General. This letter never mentioned that there

was no search warrant or a wrongful arrest. The letter only requested the return of the motor

vehicle PBO 1282, the Claimant’s driver’s permit, bank card and attached Music System.

Reasonable Grounds that serious offence committed

47. I find that the arresting officer Police Corporal Hosein had reasonable cause to suspect that a

serious offence had been committed: namely the offence of larceny of a motor vehicle, derived from

information on the police database.

48. In certain circumstances information from a data base is sufficient:

Hough v Chief Constable of Staffordshire [2001] EWCA Civ 39.

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[16] True it is that the particular question under consideration in O'Hara was whether an order to

arrest given by a superior officer was itself sufficient to afford the arresting officer a reasonable

suspicion. It was the Chief Constable's (unsuccessful) contention that it was. The principle

established, however, necessarily extends to encompass also a case like the present. The critical

question to be asked in all cases is what is in the mind of the arresting officer: he can never be a

“mere conduit” for someone else. It is for that reason insufficient for an arresting officer to rely

solely upon an instruction to carry out the arrest. Conversely, however, where the arresting

officer's suspicion is formed on the basis of a police national computer entry, that entry is likely to

provide the necessary objective justification. After all, if, as the authorities clearly establish,

information from an informer or member of the public can properly found suspicion sufficient for

an arrest, why too should not an apparently responsible entry in the computer?

Reasonable grounds for believing that the vehicle was stolen include:

49. Information from police data base – a print out in relation to vehicle TBO 1282 (See paragraph

4 witness Statement of JH 1 and Parties Bundle filed 13 May, 2010);

50. Claimant’s receipt was insufficient and not believed to be authentic by Police Corporal Hosein;

Reasonable grounds to believe that the Claimant was guilty of the crime, or implicated in it, or

an accessory to it included:

51. No explanation for failure to transfer the vehicle to the claimant’s name;

The Police Officers conducted enquiries to ascertain the true legal owner of the vehicle:

52. A Trace was conducted on the chassis and engine numbers of the vehicle;

53. They were liaising with the Stolen Vehicle Squad who informed them that Auto Wreck had

sold vehicle and that Kenrick James was the present owner (see JH 1 paragraph 13)

The lawfulness of the conduct of the police must be judged at the time, and not by what

happens afterwards.

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54. The police officers had sufficient information in their possession at the time of making the

arrest.

55. They did not have to accept the answer produced by the Claimant if in all the circumstances

they did not find it to be sufficient, when compared and weighed against the information in their

possession.

Seizure of the motor vehicle and failure to return it

56. The vehicle was returned to a person claiming a better title than Claimant. This is no longer an

issue, claims for relief in respect of the vehicle having been abandoned by the claimant.

57. In the instant matter the police officers indicated that their reason for apprehending the

Claimant in the instant matter was that there was suspicion that his motor vehicle was stolen.

58. The Police Officers decided to obtain a search warrant in relation to the arms and

ammunition, based on information on this from an alleged informant.

59. This warrant could not be produced in evidence since it was allegedly destroyed in a fire at the

station in San Fernando.

60. The vehicle was never transferred to the Claimant, even though s. 19 (6) of the Motor

Vehicle and Road Traffic Act, Chapter 48:50 makes the failure to transfer after 14 days an offence.

61. In addition the Claimant never got insurance for the vehicle and drove the vehicle without

proper insurance for a considerable period after its alleged purchase.

Analysis of the evidence

62. I find that the evidence of the defendants raises concerns and requires explanation as to the

following matters.

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Why was the search warrant for arms and ammunition if, as they assert, they had reasonable

suspicion that the claimant’s vehicle was a stolen vehicle.

63. The explanation for this was provided by Officer Smith – who was in charge of the operation

at the claimant’s home.

a. They believed that the warrant for arms and ammunition would have covered anything found on

the premises, including the vehicle about which they already had suspicions.

b The form for the warrant did not appear to contemplate more than one reason for obtaining a

warrant.

c. They were not sure which section of the Larceny Act to quote if they were to obtain a second

warrant.

64. These are not great explanations but they are explanations which serve to dispel most of the

suspicion surrounding the obtaining of this search warrant. The first explanation appears to contain

most of the rationale, with the other two appearing to be after the fact justifications. However I have

no doubt that in fact, by the time they obtained the warrant, the defendant’s witnesses did in

fact have reason to suspect that the claimant’s vehicle was a stolen vehicle. The cross checks of

the number of that vehicle obtained from surveillance, and the search of the computer data base

would have taken just minutes.

65. I accept that the original of that search would probably have been on the file which was, on a

balance of probabilities, destroyed by a fire at police headquarters in February 2009.

Why was the claimant never charged with an offence if, as they contend, there was reasonable

suspicion that the claimant’s vehicle was a stolen vehicle?

66. I accept the explanation that this was because the investigation was handed over to the

jurisdiction of the area where the vehicle was allegedly stolen. The officers who testified were unable

to say why the case was not pursued by those other officers against the claimant.

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67. These matters were not in the witness statements of the police officers, and only elucidated

under cross examination, and inquiries from the court – for example, the fact that the original of that

search warrant would probably have been on the file which was on a balance of probabilities,

destroyed by a fire at police headquarters in February 2009. However I find the explanations

reasonable and I accept them as dispelling the initial suspicions raised.

Claimant’s evidence

68. I find that the claimant’s evidence also raises concerns on the following matters which must be

dispelled.

Why that vehicle was never properly transferred into his name at the Licensing department?

69. The explanation that the claimant was unable to find a time that suited both him and the person

he allegedly purchased it from is unacceptable, given that at the time he was working offshore, with

days on shore when he was off duty.

How was he able to secure insurance, which is compulsory in this jurisdiction, for that vehicle

if he had no evidence of ownership apart from the receipt?

70. His evidence was that he simply continued driving the vehicle under its existing insurance,

although the ownership of the vehicle had passed to him. Thereafter, when it expired he got

insurance from a company/ entity which he named.

71. This raises red flags immediately. The court gave the claimant the opportunity to explain

which insurance company, as contrasted with which insurance broker, gave him insurance, and what

evidence of ownership of the vehicle was provided to them to do so. His explanation was that he only

provided the receipt for purchase of the vehicle.

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a. His inability to name an insurance company registered as such in this jurisdiction, which provided

such insurance, and his further explanation that what he received was a cover note, and

b. his failure to supply any documents from the broker or agent, if that is what they were, who

allegedly supplied this alleged insurance, or cover note,

were highly unsatisfactory and suspicious.

72. It strongly suggested, and I so find on a balance of probabilities, that the claimant was unable

to provide sufficient satisfactory evidence of ownership to a reputable insurance company to allow

any to provide insurance for the vehicle.

73. In fact when he used the vehicle after his alleged purchase that could have avoided any policy

of insurance that the previous owner would have had.

74. I do not accept that there was any cover note, as no name of any insurance company

supposedly providing such cover note could be provided.

75. A cover note is simply temporary insurance cover and cannot be for a period exceeding thirty

days. See Motor Vehicles Insurance (Third-Party Risks), Chap. 48:51

4 (11) In this Act the expression “a policy of insurance”

means a policy issued for not less than six months, and includes a single covering note issued for a

period not exceeding thirty days in respect of any vehicle, but does not include any extension of a

covering note or any subsequent covering note issued in respect of the same vehicle during any

period of six consecutive months.

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FINDINGS

75.

1. I find that there is no doubt that the claimant’s vehicle was a stolen vehicle. Its registration

number was not in the records of the Licensing department. A check was made of the police data

base which revealed that the motor vehicle PBO 1282 was not a motor car. The only number in

the *BO series with those 4 digits was in fact a black agricultural bell trailer owned by Sunil

Samaroo of 20 Oropuche River Trace, Jones Village Barrackpore. That discrepancy alerted the

defendants to the fact that the status of that vehicle justified further investigation. They claimed that

the search warrant was for arms and ammunition because they also had information as to their

possible existence on the claimant’s premises. That claim deserves sceptism as the evidence on

which that information was based - the word of an “Informant” is vague in the extreme.

2. However, I have no doubt that in fact the defendant did in fact have sufficient cause to believe

that the vehicle was a stolen vehicle when they came to the claimant’s premises, and that that

suspicion was only compounded when the claimant produced a copy of a purported receipt for

$25,000.00 for the vehicle, and was not able to produce a certified copy of ownership. While the

failure to provide a certified copy of ownership was not stated to be an offence, or a contravention of

any law. the fact that the registration number matched no known motor car in the registration records

of the licensing department, meant that it was highly unlikely that the claimant’s transfer had passed

the scrutiny of the Licensing department as it could not, in those circumstances have been registered

without that discrepancy having been discovered and rectified, if that were even possible.

3. The defendant’s agents were entitled to their suspicion that the claimant’s vehicle was not

only stolen, but that the claimant knew it to have been stolen, as corroborated by his avoiding a

proper transfer at the licensing department, and relying only on the alleged receipt as evidence of

ownership. Section 19 (6) of the Motor Vehicle and Road Traffic Act, Chapter 48:50 makes the

failure to transfer after 14 days an offence -

(6) Where a registration of transfer referred to in subsection (5) has not been made within fourteen

days after the change of possession of that vehicle, the registered owner is guilty of an offence and is

liable upon summary conviction to a fine of five thousand dollars and imprisonment for six months.

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4. The assertion that they had evidence that there were arms and ammunition on the premises of

the claimant is not very credible, especially as none was found. The evidence leaves the continuing

suspicion, and it seems more likely, that the police held the view that it was easier to get a standard

form search warrant on that basis, in the belief that they could seize any items on the premises that

disclosed an offence.

5. It would have been far preferable for the police to have obtained the search warrant on the

basis for which they actually had hard evidence – namely that the vehicle was suspected to be a

stolen vehicle, rather than the speculative, and as it turned out, unfounded basis that there were arms

and ammunition on the premises. That would have served to dispel the suspicion that there was in

fact no search warrant, as the claimant contended, and that it was manufactured after the fact, as the

mismatch between what the police claimed to be on the premises, and what they actually found,

demonstrated.

6. I find that the officers did have reasonable and probable cause, and all four elements -

objective and subjective -were established as set out hereunder.

1. Did the arresting officer honestly have the requisite suspicion or belief?

76. It is inconceivable that he would not have the requisite belief in those circumstances outlined

above. The claimant’s vehicle had a registration number not recognised by the records of the

licensing department. I find that, in the circumstances established on the evidence, the arresting

officer must, honestly have had the requisite suspicion or belief.

2. Did the officer when exercising the power, honestly believe in the existence of the

objective circumstances which he now relies on as the basis for that suspicion or belief.

77. It is undisputable that at the time of arrest the arresting officers knew of the suspicious

circumstances relating to the claimant’s motor vehicle. I find that the arresting officer honestly

believed in the existence of the objective circumstances outlined above.

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3. Was the officers’ belief in the existence of these circumstances based on

reasonable grounds?

78. It cannot reasonably be contended that they were not. Any suggestion that the officers in

those circumstances had an obligation themselves to conduct further investigations and check, for

example, the person from whom the claimant allegedly purchased the vehicle is unsustainable.

4. Did these circumstances constitute reasonable grounds for the requisite suspicion or

belief?

79. I conclude that these circumstances did constitute reasonable grounds. The police did not take

it upon themselves to simply arrest the Plaintiff for no reason. They did have a reason, and I find that

it was a good reason.

80. I conclude therefore that the police did have reasonable and probable cause to arrest the

Plaintiff. This is a totally separate matter from the issue of the Plaintiff‘s guilt or innocence. In the

circumstances of this case, therefore, the defendant’s version is preferred.

2. Was the length of the Applicant’s detention unreasonable?

Was the Plaintiff’s detention beyond 3 hours unlawful as it was in the case of Mondesir v Attorney

General-HCA 1903 of 1997?

81. An arrest involves a trespass to the person which is prima facie tortious. This trespass by the

arrestor continues so long as he retains custody of the arrested person. The arrestor must justify the

continuance of his custody by showing that it was reasonable. See Dallison v Caffrey per Diplock

L.J. at pages 370, 371 cited by Sinanan J. in Mondesir v the Attorney General, HCA No. 1903 of

1997 at 27.

82. In the Mondesir case, Sinanan J. held that the applicant in that case should have been charged

within three hours of his arrest. In that case, the police had all the evidence that they were likely to

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have by the time of their interview with the applicant and the reason given for not charging the

applicant, namely, the delay in locating a potential co-accused was found not to be satisfactory. In

that case, he held (at page 32):

“The failure to charge the applicant had important consequences for the applicant.

It denied him the opportunity of being bailed that evening, that is, the evening of the

21st or being brought before a Magistrate at 9:00 a.m. the following day in

accordance with his right as preserved by Section 5(2)(c)(iii) of the Constitution”.

83. It was in those circumstances that he found that his detention was unnecessarily protracted

and was excessive and unreasonable. See Dallison v Caffrey [1965] 1 Q.B. at page 367: B -D

“When a constable has taken into custody a person reasonably suspected of felony,

he can do what is reasonable to investigate the matter, and to see whether the

suspicions are supported or not by further evidence. He can, for instance, take the

person suspected to his own house to see whether any of the stolen property is there;

else it may be removed and valuable evidence lost. He can take the person suspected

to the place where he says he was working, for there he may find persons to confirm

or refute his alibi. The constable can put him up on an identification parade to see if

he is picked out by the witnesses. So long as such measures are taken reasonably,

they are an important adjunct to the administration of justice. By which I mean, of

course, justice not only to the man himself but also to the community at large. The

measures must, however, be reasonable.”

84. Accordingly, I find that the police were entitled to make further enquiries and take such

further steps as may have led to the exoneration of the Plaintiff. It is clearly adverted to by Lord

Justice Diplock that some delay after arrest may be justifiable if explained by the taking of such

steps, and that such delay may actually be in the arrested person’s interest as it may result in his

release without charge.

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85. In this case the police continued investigations in an effort to locate the owner of the motor

vehicle, as set out in their witness statements.

86. They had sufficient evidence prefer a charge against the claimant in connection with the fact

that he had in his possession a vehicle which they had cause to believe was a stolen vehicle. In fact,

the Plaintiff in this case was released without charge, though the reasons for that are unclear. I find

that the failure to charge the Plaintiff in this case occasioned no prejudice to him and in fact spared

him the additional expense and trauma of protracted Court proceedings and risk of conviction.

87. I find that the period of his detention without charge was not excessive in these

circumstances.

88. On balance I find that nothing would have been gained by the police in failure to inform the

Plaintiff of his constitutional rights. Equally I find that the Plaintiff may well have not registered such

information, despite it having been provided, given the suddenness of his arrest and incarceration. I

accept the evidence of the arresting officer, that the Plaintiff was informed of his legal rights.

89. I find therefore on a balance of probabilities:

(i) That the arrest of the claimant was based on reasonable and probable cause;

(ii) That the period of his detention in the circumstances was not excessive;

(iii) That he was informed of his constitutional rights.

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Orders

90. The claimant’s claim is dismissed. The claimant is to pay the defendant’s costs on the

basis prescribed by the Civil Proceedings Rules for an unquantified claim, that is, the sum of

$14,000.00.

Dated this 16th day of April, 2012.

…………………………..

Judge

Peter Rajkumar

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