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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2016 – 00134
BETWEEN
RICHARD CAESAR Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant
AND
CV 2016 - 03568
BETWEEN
OSA CHIMA Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant
(Consolidated on the 30th October 2017 by the Honourable Madam Justice Margaret Y.
Mohammed)
Before the Honourable Madame Justice Margaret Y. Mohammed
Dated the 7th May 2018
APPEARANCES
Mr. Robin Ramoutar Attorney at law for the Claimants.
Ms. Keisha Prosper and Ms. Daniella Boxhill instructed by Ms. Kezia Redhead and Ms. Diane
Katwaroo and Attorneys at law for the Defendant.
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JUDGMENT
1. The Claimants (referred to as “the First Claimant” and “the Second Claimant” respectively)
were arrested and charged with the offences of possession of a firearm and ammunition
without a licence and possession of marijuana on the 20th February 2010. On the 30th
October 2012 the charges against them were dismissed. They contended that they were
wrongfully arrested, falsely imprisoned and that the charges were laid against them
maliciously and without reasonable and probable cause. They seek damages for assault and
battery, trespass, breach of their fundamental constitutional rights for not being allowed
the facility of a phone call, malicious prosecution and aggravated and/or exemplary and/or
punitive damages against the Defendant.
The Claims
2. The First Claimant claimed that he was wrongfully arrested on Monday 1st February 2010
from around 12:44 p.m to 6:00 p.m as well as Saturday 20th February 2010 from around
2:30 a.m to the 23rd February 2010 around 3:00 p.m. In relation to his arrest on the 1st
February 2010, the First Claimant pleaded that he had some differences with an officer by
the name of “Dawin” between July-August 2009 to January 2010 about the treatment of
his brother by the said officer. He reported the conduct of the officer to the Police
Complaint’s Authority on the date of the hearing of his brother’s charges after which he
was arrested by the same officer on the same day. The First Claimant averred that he was
told the reason for his arrest was because he threatened Dawin outside the Magistrate’s
Court. He denied doing so but he was still taken to the San Fernando Police Station where
he was held for five (5) hours before a formal statement was taken. He was then released
with a threat of prosecution. He caused a formal letter of complaint against the conduct of
Dawin to be dispatched by his Attorney at law on the 8th February 2010.
3. The Second Claimant claimed that on Saturday 20th February 2010 from around 2:30 a.m
to the 23rd February 2010 around 3:00p.m., he was wrongfully arrested.
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4. The incident which gave rise to the Claimants’ claims occurred on Saturday 20th February
2010 at the home of the First Claimant, at No. 243 Edward Trace, Basse Terre, Moruga
(“the premises”). They averred that Second Claimant was helping the First Claimant with
some renovations/construction work on Friday 19th February 2010 but they finished
working late, so the Second Claimant spent the night at the premises. Around 2:30 a.m, the
Claimants were awaken by banging sounds on the window of the house on the premises.
They were met with bright lights when the First Claimant opened his door. Seven men
stood in the entry way to the premises, five were in police uniform and two were in plain
clothes. The officer who pointed the light in the First Claimant’s face yelled to him “open
your door we have a warrant to search yuh place”. Two officers, one in uniform and the
other in plain clothes, rushed into the house when the First Claimant opened the gate which
bars the front door.
5. The Claimants were then handcuffed and dragged outside the house where they were held
while the two officers remained in the house. While the Claimants were outside one of the
officers began to read a document purporting to be a search warrant to the First Claimant
and while he was doing so another officer came out of the house and asked the Claimants
if they had anything to declare. They responded “no”, and the Second Claimant indicated
that he was just a visitor on the premises. The Second Claimant averred that the search
warrant was never read to him. They also averred the document was never read sufficiently
for it to be identified as a search warrant, nor was it ever shown to them, nor did they sign
it.
6. The Claimants were then dragged back into the house and taken to the bed where the First
Claimant slept. One of the officers bent down and pulled out a black cloth, placed it on the
bed and unwrapped it and it revealed a gun. The Claimants denied that the cloth was put
there by them and they both denied ownership of the gun. The First Claimant asked the
officers why they were setting him up and he was told to shut his mouth or deal with the
consequences.
7. The Claimants were then bodily dragged from the house, roughly handcuffed, placed in a
marked police vehicle and driven to the Princes Town Police Station. They remained in
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handcuffs throughout. They were removed from the vehicle and taken to a room in the
station where they were ordered to sign a statement admitting to knowledge of the firearm.
They refused and were beaten with a baton, after which they were ordered again to sign.
They refused again and they were beaten once more. They were then placed in a small cell
which smelt highly of faeces. There was no bed only a concrete slab to either sit or lie
upon. There was no toilet and there was a bucket in the corner that led to a hole in the floor.
8. The Claimants were not allowed to call an attorney or any family and they protested their
innocence. They were held in the cell from Saturday to Monday. They were taken before
the Magistrate on Tuesday 23rd February 2010. They were denied bail and they were held
on remand for approximately three months until they received bail. They were prosecuted
for two years and they attended court on approximately fifteen occasions. The charges were
dismissed on the 30th October 2012.
9. Both Claimants have contended that their arrest was unlawful and that they were assaulted
by the officers in the use of the handcuff and the beating with the baton. Their case is that
there was no reasonable and probable cause to arrest them since the police officers: (a)
failed to properly investigate the matters against each of them respectively, (b) the police
officers planted the firearm, ammunition and marijuana on the premises and (c) the police
officers failed to prosecute the charges laid against them as the complainant never
appeared. The First Claimant also contended that the charges against him were fabricated
in an attempt to cause him to cease his complaints against the police conduct.
10. The Claimants claimed that they suffered damages, loss, expenses, public humiliation,
anxiety and stress. Each Claimant pleaded special damages in the amount of $16,000.00
which included: (a) the cost of defence at the Magistrate’s court in the sum of $15,000.00
and (b) cost of travelling in the sum of $1000.00.
The Defence
11. The Defendant averred that the Claimants were arrested pursuant to the common law and
statutory powers of the police officers to arrest a person whom they have reasonable belief
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to have committed an offence, namely possession of a firearm and ammunition without a
licence and marijuana. The Defendant averred that at all material times PC Beepat and the
accompanying officers had reasonable and probable cause to arrest the Claimants. The
Defendant denied any allegation that PC Beepat was accentuated by malice in the charging
and prosecution of the Claimants.
12. According to the Defendant, on the 19th February, 2010, an informant reported an incident
to the Superintendent at a police station that the First Claimant and a “town man” came to
his place and indicated that they wanted to purchase cocaine. The informant indicated that
he did not have any cocaine and he was then threatened that he would be shot.
13. Thereafter, PC Beepat was instructed to obtain a warrant to search the premises for firearms
and ammunition. On the 20th February 2010, around 2:00a.m the Claimants were at the
house on the premises. PC Beepat along with a party of officers searched the premises and
a firearm was found in a black cloth resembling a ski mask under a pillow on a bed and a
small quantity of marijuana was also found by the bedhead. The First Claimant exchanged
words with the Second Claimant on being shown the firearm and he did not express any
innocence. They were arrested, cautioned and informed of their legal rights and privileges
and they made no reply or request at that time. They were then handcuffed behind their
back and placed in the back of a police vehicle. They remained silent and neither of them
protested their innocence.
14. The Defendant maintained that: PC Beepat identified himself by means of his police
identification card when he arrived at the premises; PC Beepat showed and read out the
warrant to search the premises for firearms and ammunition to the First Claimant; the
Second Claimant did not indicate that he was a visitor to the premises neither did he inform
any officer at any point that he was helping the First Claimant with any
renovations/construction work at the premises on the day before the incident.
15. The Defendant denied that the Claimants were assaulted and beaten by the police officers.
It was asserted that the officers used no more force than was necessary to arrest and handle
the Claimants. The Defendant denied telling the First Claimant to shut his mouth and it
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was also denied that the First Claimant asked why he was being set up. The Defendant
denied that the Claimants were ordered to sign a statement admitting to knowledge of the
firearm or that they were beaten by any officer. The Defendant averred that the Claimants
were asked to read and sign the station diary entry which they refused to do. Further, the
Defendant averred that if the Claimant had sustained any injuries it would have been
reported to the station sentry who would have recorded same and they would have been
taken to the Princes Town Health Facility.
16. The Defendant contended that the Claimants were informed of their constitutional rights
and privileges and they did not make any requests for legal representation or to call a family
member. The Defendant averred that: the cell in which the Claimants were placed in
contained a toilet; the Claimants were kept on enquiries relative to robbery and firearm
offences in the district and they were interviewed by several officers and taken before the
Magistrate on the 23rd February 2010. In relation to the period of time the First Claimant
was detained, the Defendant averred that he was kept in custody for that duration because
he matched the description of a person suspected in robbery related and firearm reports.
17. The Defendant denied that the Claimants are entitled to any of the reliefs sought or damages
including aggravated and/or exemplary damages. The Defendant pleaded that the
Claimants claim for damages for false imprisonment or assault and battery had become
statute barred by virtue of the Limitation of Certain Actions Act1.
18. The facts in dispute centered on: the obtaining of the search warrant; the execution of the
search warrant; the fabrication/ planting of evidence against the Claimants; the motive by
the police officers; and the actions by PC Beepat in the prosecution of the charges. In
determining the version of the events more likely in light of the evidence the Court is
obliged to check the impression of the evidence of the witnesses on it against the: (1)
contemporaneous documents; (2) the pleaded case: and (3) the inherent probability or
1 Chapter 7:09
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improbability of the rival contentions. (Horace Reid v Dowling Charles and Percival
Bain2 cited by Rajnauth-Lee J (as she then was) in Winston Mc Laren v Daniel Dickey3).
19. The issues which arise for determination are:-
a. Are the Claimants’ claims for damages for wrongful arrest and/or false
imprisonment and/or assault and battery statute barred?
b. If the answer to (a) is No is the Defendant liable in damages for the wrongful arrest
and/or false imprisonment of the First Claimant on Monday the 1st February, 2010
from around 12:44 p.m. to around 6:00 p.m. on the same said day?
c. If the answer to (a) is No, is the Defendant liable in damages for wrongful arrest
and/or false imprisonment of the Claimants on Saturday the 20th February, 2010
from around 2:30 a.m. to the 23rd February, 2010 around 3:00 p.m.;
d. If the answer to (a) is No, is the Defendant liable in damages to the Claimants for
any assault and battery at the hands of the servants and/or agents during the arrest
and detention?:
e. Did PC Beepat have reasonable and probable cause to charge the Claimants with
the offences of having in their possession a firearm and ammunition without a
licence and possession of marijuana? ;
f. Was PC Beepat actuated by malice in instituting the proceedings against the
Claimants?
g. Was there a violation of the Claimants fundamental constitutional rights when they
were denied the facility of a phone call when they were arrested and taken to the
Princes Town Police Station and if so is the Defendant liable in damages?;
h. If the Defendant is found to be liable for any of the claims, what is the appropriate
measure of damages to be awarded?;
i. Is the Defendant liable for aggravated and/or exemplary damages?
j. What is the appropriate costs order?
2 Privy Council Appeal No. 36 of 1897 3 CV 2006-01661
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20. Both Claimants gave evidence on their own behalf at the trial. Hearsay Notices were also
filed on behalf of the First Claimant in relation to certain documents. The Defendant filed
a witness statement for PC Ramdial and a witness summary for PC Beepat. At the trial only
PC Ramdial attended and gave evidence.
Are the claims by the Claimants’ actions for wrongful arrest and/or false
imprisonment and/or assault and battery statute barred?
21. The First Claimant pleaded that he was wrongfully arrested and detained for two periods.
On Monday the 1st February, 2010 from around 12:44 p.m. to around 6:00 p.m. on the same
day and on Saturday the 20th February, 2010 from around 2:30 a.m. to the 23rd February,
2010 around 3:00 p.m. The Second Claimant pleaded that he was wrongfully arrested and
detained only for the period Saturday the 20th February, 2010 from around 2:30 a.m. to the
23rd February, 2010 around 3:00 p.m.
22. Both Claimants pleaded that they were assaulted and beaten during the period Saturday the
20th February, 2010 from around 2:30 a.m. to the 23rd February, 2010 around 3:00 p.m.
23. The Defendant raised the plea that the actions for wrongful arrest, detention of the aforesaid
periods and any alleged assault and battery were statute barred at the time the matter was
filed.
24. Section 3(1) (a) of the Limitation of Certain Actions Act provides that:
“3.(1) the following actions shall not be brought after the expiry of four years from
the date on which the cause of action accrued, that is to say:
(a) Actions founded on contract(other than a contract made by a deed) on
quasi-contract or in tort:”
25. The claims for damages for wrongful arrest and detention and assault and battery are
grounded in tort. The causes of actions for these claims arose in February 2010 and the
instant actions were filed in 2016 outside of the limitation period of four (4) years after the
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respective causes of actions arose. As such, I agree with the submissions on behalf of the
Defendant that at the time the Claimants instituted their respective actions the respective
causes of action for their claims for wrongful arrest and detention and assault and battery
had expired.
26. Having found that the Claimants’ claims for wrongful arrest and detention and assault and
battery are statute barred, the Defendant is not liable in damages to them with respect to
those claims.
Did PC Beepat have reasonable and probable cause to charge the Claimants with the
offences of having in their possession a firearm and ammunition without a licence and
possession of marijuana?
27. It was submitted on behalf of the Claimants that PC Beepat did not have reasonable and
probable cause to charge them with the offences of having in their possession a firearm and
ammunition without a licence and marijuana since there was no information upon which a
search warrant was obtained; there was no search warrant; even if there was a search
warrant, its execution was improper; the police officers planted the firearm, ammunition
and marijuana in the house; PC Beepat’s motive to plant the said items was due to the First
Claimant’s complaints against officer Darwin and even after they were charged PC Beepat
did not take steps to prosecute the charges. It was also argued on behalf of the Second
Claimant that he was a visitor to the premises when the firearm, ammunition and marijuana
were found.
28. The Defendant argued that PC Beepat had reasonable and probable cause to prosecute the
Claimants for the aforementioned offences since PC Beepat had obtained a search warrant
based on information he received from an informant; the search warrant was properly
executed; the firearm, ammunition and marijuana were found in the presence of the
Claimants; after they were charged PC Beepat pursued the prosecution by having the
firearm, ammunition and marijuana examined by the Forensic Sciences Centre and he
attended Court.
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29. The essential ingredients for a malicious prosecution claim as set out in Clerk & Lindsell
on Torts4 are:
“In an action for malicious prosecution the claimant must first show that he was
prosecuted by the defendant, that is to say, that the law was set in motion against
him on a criminal charge; secondly, that the prosecution was determined in his
favour; thirdly, that it was without reasonable and probable cause; fourthly, that it
was malicious. The onus of proving every one of these is on the claimant. Evidence
of malice of whatever degree cannot be invoked to dispense with or diminish the
need to establish separately each of the first three elements of the tort.”
30. The test whether there is reasonable and probable cause has both subjective and objective
elements. In Harold Barcoo v the Attorney General of Trinidad and Tobago5
Mendonca J. (as he then was) quoted from the 1987 edition of the text Civil Actions
Against the Police by R. Clayton Q.C. and Hugh Tomlinson Q .C., where the authors laid
out the test as to whether there is reasonable and probable cause at page 147:
“(i) Did the officer honestly have the requisite suspicion or belief?
(ii) 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?
(iii) Was his belief in the existence of these circumstances based on reasonable
grounds?
(iv) Did these circumstances constitute reasonable grounds for the requisite
suspicion or belief?”
31. Mendonca J (as he then was) continued his explanation at page 6 as follows:
“The person who must entertain the requisite suspicion (belief) is the arresting officer
(prosecutor). It is his mind that is relevant. The arresting officer in order to satisfy the
subjective elements of the test must have formed the genuine suspicion in his own
4 20th ed. At page 1070, para 16:09 5 H.C.A. No. 1388 of 1989
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mind that the person arrested has committed an arrestable offence and he must have
honestly believed in the circumstances which formed the basis of that suspicion. The
objective test was put this way by Diplock L. J. in Dallison v Caffery [1965] 1 QB 348
(at page 619):
“The test whether there was reasonable and probable cause for the arrest or
prosecution is an objective one, namely whether a reasonable man, assumed to
know the law and possessed of the information which in fact was possessed by the
defendant, would believe that there was reasonable and probable cause.”
32. 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 charge
(see Herniman v Smith6 per Lord Atkin, “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.”).
33. The Privy Council in Trevor Williamson v The Attorney General of Trinidad and
Tobago7 at paragraphs 11-13, repeated the relevant law with respect to a claim for
malicious prosecution as:
“11. In order to make out a claim for malicious prosecution it must be shown,
among other things, that the prosecutor lacked reasonable and probable cause for
the prosecution and that he was actuated by malice. These particular elements
constitute significant challenge by way of proof. It has to be shown that there was
no reasonable or probable cause for the launch of proceedings, This requires the
proof of a negative proposition, normally among the most difficult of evidential
requirements. Secondly, malice must be established. A good working definition of
what is required for proof of malice in the criminal context is to be found in A v
NSW [2007] HCA 10; 230 CLR 500, at para 91:
6 [1938] AC 305 7 [2014] UKPC 29
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“What is clear is that, to constitute malice, the dominant purpose of the
prosecutor must be a purpose other than the proper invocation of the
criminal law -an ‘illegitimate or oblique motive’. That improper purpose
must be the sole or dominant purpose actuating the prosecutor.”
12. An improper and wrongful motive lies at the heart of the tort, therefore. It
must be the driving force behind the prosecution. In other words, it has to be shown
that the prosecutor’s motives is for a purpose other than bringing a person to justice:
Stevens v Midland Counties Railway Company (1854) 10 Exch 352, 356 per
Alderson B and Gibbs v Rea [1998] AC 786, 797D. The wrongful motive involves
an intention to manipulate or abuse the legal system Crawford Adjusters Ltd
(Cayman) v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014]
AC 366 at para 101, Gregory v Portsmouth City Council [2000] 1 AC; 426C;
Proulx v Quebec [2001] 3 SCR 9. Proving malice is a “high hurdle” for the
claimant to pass: Crawford Adjusters para 72a per Lord Wilson.
13. Malice can be inferred from a lack of reasonable and probable cause –
Brown v Hawkes [1891] 2 QB 718, 723. But a finding of malice is always
dependent on the facts of the individual case. It is for the tribunal of fact to make
the finding according to its assessment of the evidence.”
34. It was not in dispute that the Claimants have proven that they were charged with the
offences of being in possession of a firearm and ammunition without a licence and
possession of marijuana and that the proceedings were terminated in their favour in the
Magistrate’s Court on the 30th October 2012. The onus was on the Claimants to prove that
the arresting officer PC Beepat did not have reasonable and probable cause to arrest them
for the aforementioned offences and that PC Beepat instituted and carried out the
proceedings against them maliciously.
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The Offences
35. Both Claimants were charged under section 6 (1) of the Firearms Act8 with the offences
of being in possession of a firearm namely a revolver and that they were not persons who
were exempted under section 7 of the Firearms Act or the holder of a firearm user’s
licence. They were also charged for possession of marijuana.
36. Section 6 of the Firearms Act provides that:
“ 6(1) Subject to section 7, a person may purchase, acquire or have in his possession
a firearm or ammunition only if he hold a Firearm User’s Licence with respect to
such firearm and ammunition.”
37. Section 5(1) of the Dangerous Drugs Act9 provides:
“5. (1) Subject to subsection (2), a person who has in his possession any
dangerous drug is guilty of an offence and is liable-
(a) upon summary conviction to a fine of twenty-five thousand dollars
and to imprisonment for five years;
(b) upon conviction on indictment to a fine of fifty thousand dollars and
to imprisonment for a term which shall not exceed ten years but which shall
not be less than five years.”
38. Section 3(1) of the Dangerous Drugs Act defines a “dangerous drug “ as a narcotic drug
listed in the First Schedule or a thing that contains such a drug or a psychotropic substance
listed in the Second Schedule or a thing that contains such a drug. In the First Schedule
Cannabis (marijuana) is listed as item 3.
39. Therefore, once PC Beepat was satisfied that the Claimants had committed the aforesaid
offences he was entitled to charge them. In determining whether PC Beepat had reasonable
and probable cause to institute the prosecution or whether he acted with malice in
8 Chapter 16:01 9 Chapter 11:25
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instituting the prosecution, the Court is required to consider the information that was in his
mind at the time the charges were laid, namely, PC Beepat’s own account of the
information10.
40. The particulars of malice/or absence of reasonable and probable cause which were pleaded
were by the First Claimant were set out at paragraph 18 of his Statement of Case as:
PARTICULARS OF LACK OF REASONABLE AND PROBABLE CAUSE/
MALICE
(a) Failed to properly investigate the matters against the Claimant.
(b) Had no or no reasonable or probable cause to prosecute the Claimant as indeed
the complainant never appeared.
(c) Planted the firearm and implements in the premises of the Claimant.
(d) Fabricated and/or concocted the charges against the Claimant in an attempt to
cause him to cease his complaints against the police conduct.
(e) Failed to prosecute the charges laid against him.
41. In essence, the First Claimant’s case was that PC Beepat did not properly investigate the
information received from the informant about him; PC Beepat obtained the alleged search
warrant without any proper investigation; PC Beepat concocted evidence against him
namely by planting the firearm, ammunition and the marijuana on the premises in order to
get him to stop lodging complaints against the police conduct and having charged the First
Claimant, PC Beepat failed to attend the Magistrate’s Court when the matter was called
and he failed to produce the firearm, ammunition and marijuana at the Magistrate’s Court.
42. The particulars of malice/or absence of reasonable and probable cause which were pleaded
by the Second Claimant were set out at paragraph 16 of his Statement of Case were identical
to that as set out by the First Claimant save and except the Second Claimant averred that
the police planted the firearm, ammunition and marijuana on the premises of the First
10 O’Hara v Chief Constable of the Royal Ulster Constabulary (1997) 1 ALL E.R. 129.
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Claimant. The Second Claimant did not make the allegation of fabrication or concoction
of charges against him or the First Claimant to get the latter to stop lodging complaints
against the police.
The existence of a search warrant
43. The Claimants’ case was that there was no search warrant on the day of the incident. The
First Claimant testified that on the 19th February 2010 he was in the process of carrying out
renovation works on his house. He asked his friend, the Second Claimant, to assist him.
They finished working late on the 19th February 2010 so he suggested to the Second
Claimant to stay the night since taxis did not work late in that area. On Saturday 20th
February 2010 at around 2:30a.m he was awaken by the sound of banging on the window
of the house. He got up and went to the front door of the house. When he opened the door
he was met with bright lights being flashed in his face. The Second Claimant woke up as
well and accompanied him to the front door. He observed seven men standing in the
entryway to the house, five of them were in police uniform and two were in plain clothes.
The officer who was pointing the light in his face yelled to him “open your door we have
a warrant to search yuh place…”
44. According to the First Claimant, when he opened the gate that bars the front door, two
officers rushed into the house. One was in uniform and the other was in plain clothes. The
First Claimant said that he was then roughly handcuffed and dragged outside the house
together with the Second Claimant. While they were held outside the house two officers
remained inside. The First Claimant testified that since he is a security officer he was aware
of the proceedings of a search so he complained that the action being taken was illegal and
that the Second Claimant told the officers that he was just a visitor to the premises and did
not know anything about what was taking place. The First Claimant said he told them that
the Second Claimant was helping him do some construction work on the house but one of
the officers told him to shut his mouth.
45. The First Claimant also testified that one of the other officers eventually began reading a
document to him in the Second Claimant’s presence, but while that was being done one of
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the officers who went into the house came outside and asked them if they had anything to
declare. They responded “no” and the Second Claimant indicated that he was just a visitor
to the house helping with some construction work. According to the First Claimant, the
alleged warrant was never read out completely to him and the document was not identified
as a search warrant to him. He said the document was not shown to him and he did not sign
it.
46. In cross-examination, the First Claimant’s evidence on this issue was unshaken. He
testified that when the officer started to read a document all he said was “Trinidad and
Tobago”. He denied that a search warrant was shown and read to him on the day in
question.
47. The Second Claimant testified that on Friday 19th February 2010 he was at the home of the
First Claimant assisting him in the renovation and construction of the house on the
premises. He said that they finished working late on the Friday and the First Claimant
suggested to him to spend the night and he agreed to since it would have been difficult to
get a taxi at night. According to the Second Claimant, at around 2:30a.m on Saturday 20th
February 2010 while he was asleep at the premises, he was awaken by the sound of banging
on the window of the house. The First Claimant got up, went to the front door and opened
it. He was met with bright lights being flashed in his face. The Second Claimant said that
he observed seven men standing in the entry way to the house, five of whom were in police
uniform and two were in plain clothes. The officer who was pointing the light in the First
Claimant’s face yelled to him to “open yuh door we have a warrant to search yuh place…”
As soon as the First Claimant opened the gate that bars the front door, two officers rushed
into the house. One was in uniform and the other was in plain clothes. According to the
Second Claimant, he was roughly handcuffed and dragged outside the house together with
the First Claimant where they were held whilst the two officers were in the house. The First
Claimant being a security officer, complained that the action being taken was illegal and
the Second Claimant said he complained to the officer that he was just a visitor to the
premises and did not know anything about what was taking place. He told the officers that
he was helping the First Claimant do some construction work on the house. One of the
officers told him to shut his mouth.
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48. The Second Claimant also testified that while he and the First Claimant were outside the
house, one of the other officers eventually began reading a document to the First Claimant
in his presence, but while that was being done one of the officers who was inside the house
came outside and asked both him and the First Claimant if they had anything to declare.
The Second Claimant said that he responded “no” and that he was just a visitor to the house
helping the First Claimant with some construction work. According to the Second
Claimant, the alleged warrant was never read out completely; it was never shown to him
and he did not sign it.
49. The Second Claimant’s evidence on this issue was also unshaken in cross-examination. He
denied that he saw a search warrant or that it was read to them. He maintained that an
officer began to read a document but he was interrupted by one of the officers who was
inside of the house. The Second Claimant’s evidence corroborated the First Claimant’s
evidence in several material aspects save and except he did not state that he went to the
door with the First Claimant when the officer arrived. In my opinion, this minor
inconsistency did not undermine the overall consistency and credibility of the Second
Defendant’s evidence on this issue.
50. In determining the credibility of the evidence of a witness the Court of Appeal in The
Attorney General of Trinidad and Tobago v Anino Garcia11, took the position that any
deviation by a Claimant from his pleaded case immediately calls his credibility into
question.
51. The unshaken evidence from the Claimants was consistent with their pleaded case which
was that the officers did not read or show them any search warrant. I found the Claimants
evidence on this issue to be credible.
52. The Defendant’s case was that based on information which the police had received from
an informant, PC Beepat obtained a search warrant for the First Claimant’s premises. To
support this case the Defendant relied on the evidence of PC Ramdial who filed two
11 Civ. App. No. 86 of 2011 at paragraph 31
Page 18 of 40
witnesses statements, one on the 30th June 2017 (“the June witness statement”) in the
Second Claimant’s matter and the second filed on the 27th October 2017 (“the October
witness statement”) in the First Claimant’s matter. According to PC Ramdial on the 19th
February 2010, he was attached to Criminal Investigation Department of the Princes Town
Police Station. In the June witness statement he testified that the informant gave his
information to Superintendent Farrel who then brought the informant to him and PC Beepat
and thereafter PC Beepat went to the Justice of the Peace and secured the alleged search
warrant. However, in the October witness statement PC Ramdial stated that the informant
gave his statement to PC. Beepat and that:
“Subsequent to this, Mr. Farrel brought the informant to myself and PC.
Beepat.”12
53. It was submitted on behalf of the Defendant that PC Ramdial’s evidence that PC Beepat
and not Superintendent Farrel received the informant’s report did not undermine the
Defendant’s case since what was relevant was whether a report was received. It was also
submitted on behalf of the Defendant that there was no evidence to dispute the Defendant’s
assertion that a report was made to the police by the informant and that on a public policy
ground officers are not obligated to produce police informants as witnesses in matters of
this nature. The Defendant submitted that in any event, PC Ramdial’s evidence in cross-
examination was that any information from the informant would not have been in the
Station Diary extract.
54. It was further argued on behalf of the Defendant that the onus was on the Claimants to call
the named Justice of the Peace who issued the search warrant as a witness and that since
they failed to provide a reason for not doing so, they failed to prove that there was no search
warrant.
55. The Defendant acknowledged that PC Beepat did not attend the trial to give evidence
although a witness summary was filed on his behalf. The Defendant asked the Court not to
draw an adverse inference by the failure of PC Beepat to attend the trial and give evidence
since this was not a tactical move by the Defendant. The Defendant submitted that the facts
12 Paragraph 5 of PC Ramdial’s witness statement filed on the 27th October 2017
Page 19 of 40
in the instant matter can be distinguished from the case of Wisniewski v Central
Manchester Health Authority13 which establishes the test which the Court is to apply in
drawing adverse inferences due to the failure by a party to call a witness. The Defendant
submitted that based on the Defence both PC Beepat and PC Ramdial were involved in
receiving the information from the informant and in the execution of the search warrant.
56. Wisniewski deals with the inferences a Court can make where there is a failure of a party
to provide evidence. In Wisniewski the Court concluded the following:
“From this line of authority I derive the following principles in the context of the
present case:
(1) In certain circumstances a court may be entitled to draw adverse inferences from
the absence or silence of a witness who might be expected to have material
evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the
evidence adduced on that issue by the other party or to weaken the evidence, if
any, adduced by the party who might reasonably have been expected to call the
witness.
(3) There must, however, have been some evidence, however weak, adduced by the
former on the matter in question before the court is entitled to draw the desired
inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness's absence or silence satisfies the court then no such
adverse inference may be drawn. If, on the other hand, there is some credible
explanation given, even if it is not wholly satisfactory, the potentially
detrimental effect of his/her absence or silence may be reduced or nullified.”
13 [1998]Lloyd’s Rep Med 223
Page 20 of 40
57. I agree with the Defendant’s submission that based on the facts in the instant case the Court
ought not to draw an adverse inference by PC Beepat’s failure to attend the trial since
Counsel for the Defendant indicated that PC Beepat went on vacation and he failed to return
to work after vacation and that there was another witness, namely PC Ramdial, which was
being relied on. I also agree with the submission by the Defendant that on public policy
grounds the Defendant was not obliged to produce the police informant in matters such as
this.
58. However, in this case, the Claimants asserted that no report was made to the police from
any informant and that there was no search warrant. By doing so, the burden was shifted to
the Defendant to prove that there was such a report and there was a search warrant. There
was no duty on the Claimants to produce any witnesses such as a Justice of the Peace to
prove the search warrant since their case was that there was none. The Claimants cannot
prove a negative. The onus was on the Defendant to prove the positive since it was the
Defendant who asserted that there was information from an informant which led to the
search warrant.
59. In my opinion, based on the contradiction between the two witness statements from PC
Ramdial, the credibility of his evidence that there was an informant who brought the
information to the police was undermined. Therefore the evidence from the officer who the
Defendant asserted received the information, namely PC Beepat, would have been critical
in proving its assertion. The effect of PC Beepat’s failure to give evidence at the trial meant
that there was no evidence from PC Beepat to corroborate any of PC Ramdial’s evidence
that PC Beepat received the information from the informant and he obtained a search
warrant. Further, there was no documentary evidence adduced of the alleged search warrant
which he had obtained since the Defendant did not file a hearsay notice to adduce the
alleged search warrant into evidence.
60. Therefore, in light of the inconsistent evidence from PC Ramdial of who received the
information from the informant, the absence of any documentary evidence and the absence
of any corroborating evidence from PC Beepat, there was no credible evidence from the
Page 21 of 40
Defendant to challenge the evidence from the Claimants’ evidence that there was no search
warrant.
The execution of the alleged search warrant
61. The Claimants’ case was that they were outside of the house when two officers searched
it. According to the evidence of the First Claimant, after he and the Second Claimant were
taken outside the house, two officers remained inside the house. This aspect of his evidence
was unshaken in cross-examination. The Second Claimant’s evidence was also consistent
with the First Claimant’s evidence.
62. The Defendant’s case was that the Claimants were kept inside of the house while the
officers searched it. To prove this assertion, the Defendant relied on the evidence of PC
Ramdial who testified that on the 20th February 2010, around 2:00 a.m he along with PC
Beepat and a party of officers namely: PC Seelalsingh, PC Insanali and PC Johnson left
the Princes Town Police Station in two police vehicles, for the premises of the First
Claimant. When they arrived, PC Beepat knocked on the door to the house and called out
to the occupants inside. The house was a wooden structure which was relatively small. The
First Claimant opened the door and all of the officers identified themselves to him. PC
Beepat informed and showed him the search warrant in his possession and it was then read
to him. The First Claimant did not say anything. The officers entered the premises. After
PC Ramdial entered the premises he asked the First Claimant whether or not there was
anyone else on the premises. He responded “Yes”. A search was carried out on his person
and nothing illegal was found on him. The officers then entered the house and they saw the
Second Claimant standing at the side of the bed.
63. PC Ramdial then searched the Second Claimant to ensure that he was not concealing any
weapons on him and no weapon was found on his person. PC Ramdial said he also
identified himself to the Second Claimant by means of his Trinidad and Tobago Police
Identification Card. The bedroom was then searched. PC Ramdial observed PC Beepat
finding some marijuana on the bed head area. When he further searched the bed, he
Page 22 of 40
removed from under a pillow on the bed a black ski mask which concealed a revolver in it
as well as five cylindrical brass casings each resembling that of ammunition.
64. According to PC Ramdial, PC Beepat cautioned the Claimants and informed them of their
rights and privileges but they did not respond to him. PC Ramdial said he heard them say
some things to each other. Both Claimants were handcuffed behind their backs and taken
to the unmarked police vehicle and placed at the back of it. The marked police vehicle was
an open tray pick-up van. The Claimants were then taken to the Princes Town Police
Station to be formally charged for the offences.
65. On the execution of the search warrant, PC Ramdial confirmed in cross-examination that
about five police officers went to execute the search warrant with two vehicles. He admitted
that the house was very small. He estimated that it was about 12 feet in width and 20 feet
in length. He said that PC Beepat and one other officer went into the house. He maintained
that PC Beepat showed and read the search warrant to the Claimants. He testified that a
search warrant is not usually signed by the person it is being executed upon. PC Ramdial
also stated that the Second Claimant did not come to the door with the First Claimant but
that he was found standing on the side of the bed where the gun was found. He maintained
that both Claimants were present at the time the search was conducted and PC Beepat found
the items in their presence. He denied that the items which were found were placed there
by himself or PC Beepat. The Claimants were cautioned by PC Beepat and none of them
made any utterances.
66. In cross-examination, with respect to the questions posed to him on the station diary, PC
Ramdial admitted that the station diary extract was not produced to the Court. He said that
he made checks for the station diary but it was not there and that it is missing. He stated
that the items which were found and the statements which were made during the execution
of the search warrant would have been placed in the station diary and the station diary is
usually signed by the prisoner if he makes an utterance implicating himself.
Page 23 of 40
67. PC Ramdial’s evidence was not supported by any contemporaneous documents. There was
no station diary extract which by PC Ramdial’s admission would have contained the
statements which were made during the execution of the search warrant.
68. In my opinion, PC Ramdial’s evidence was not credible in material aspects with respect to
the execution of the search warrant. Firstly, PC Ramdial did not state in cross-examination
that he was the other officer who went into the house. Therefore, it is reasonable to
conclude that he was one of the officers who stayed outside. Based on his evidence in cross-
examination, there were two officers inside the house with the Claimants and three officers
outside. If I am to accept PC Ramdial’s evidence in cross-examination it would mean that
he was not inside the house and therefore he was not present when he alleged the search
warrant was read to the Claimants.
69. Second, PC Ramdial stated that the house was small. In my opinion, given the small size
of the house, he would have seen if someone was inside the house when the First Claimant
opened the door and there would have been no need to enquire if someone was inside.
70. Thirdly, PC Ramdial attempted to place the Second Claimant close to the bed where he
said that the firearm, ammunition and marijuana were found. In my opinion, if he did not
state that he was the officer who went inside the house he could not have stated with
certainty the location of the Second Claimant in the house.
71. Lastly, PC Ramdial stated that when the search warrant was shown and read by PC Beepat
to the First Claimant he did not say anything. Even if I accept PC Ramdial’s evidence that
the search warrant was shown to the First Claimant, it is highly plausible that given the
time the search was done the Claimants would have protested their innocence vigorously.
72. In my opinion, in the absence of any serach warrant being adduced into evidence and based
on PC Ramdial’s evidence I find that there was no search warrant.
73. But even if there was a valid search warrant which I have not found, I have concluded that
it was still improperly exercised since based on the uncontested and uncontroverted
Page 24 of 40
evidence of the Claimants that no warrant was ever shown to either or read out to either
and they were not present when the house was searched. The evidence of PC Ramdial was
not reliable and there was no documentary evidence of any search warrant adduced by the
Defendant. PC Ramdial’s evidence was not corroborated since the Court did not have the
benefit of PC Beepat’s evidence and the Defendant did not call any other officer from the
party of five who were present when the alleged warrant was executed.
Fabrication/planting of evidence
74. Both Claimants alleged that the officers concocted the story of the firearm, ammunition
and marijuana and that they planted the said items on the premises. The Defendant denied
the allegation of the concocting and the planting of the items.
75. Where there is an allegation of fabrication the onus is on the party making the allegation
to provide cogent evidence to prove the allegations. Indeed, the approach the Court has
taken has been that the more serious the allegation, the less likely it is that the event
occurred and, hence, the stronger the evidence should be before the Court concludes that
the allegation is established beyond a balance of probability. In Re H and Others
(minors)(sexual abuse: standard of proof)14 the Court explained:
“Where the matters in issue are facts the standard of proof required in non-criminal
proceedings is the preponderance of probability, usually referred to as the balance
of probability. This is the established general principle. …
The balance of probability standard means that a court is satisfied that an event has
occurred if the court considers that, on the evidence, the occurrence of the event is
more likely than not. When assessing the probabilities the court will have in mind
as a factor, to whatever extent is appropriate in the particular case, that the more
serious the allegation the less likely it is that the event occurred and, hence, the
stronger should be the evidence before the court concludes that the allegation is
established on a balance of probability. Fraud is less likely than negligence.
14 (1996) AC 563
Page 25 of 40
Deliberate physical injury is usually less likely than accidental physical injury…
Built into the preponderance of probability standard is a generous degree of
flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious
allegation is in issue the standard of proof is higher. It means only that the inherent
probability or improbability of an event is itself a matter to be taken into account
when weighing the probabilities and deciding whether on a balance of probabilities
and deciding whether, on a balance, the event occurred. The more improbable the
event, the stronger must be the evidence that it did occur before, on a balance of
probability, its occurrence will be established. Ungoed-Thomas J. expressed it
neatly in In re Dellow’s Will Trusts (1964) 1 W.L.R. 451 at 455: “The more serious
the allegation the more cogent the evidence required to overcome the unlikelihood
of what is alleged and thus to prove it.”
This substantially accords with the approach adopted in authorities such as the well-
known judgment of Morris L.J. in Hornal v. Neuberger Products Limited (1957) 1
Q.B. 247, 266. This approach also provides a means by which the balance of
probability standard can accommodate one’s instinctive feeling that even in civil
proceedings a court should be more sure before finding serious allegations proved
than when deciding less serious or trivial matters.”15 (Emphasis added).
76. The aforesaid approach has been adopted in this jurisdiction. In Wayne Carrington v The
Attorney General of Trinidad and Tobago16 Gobin J noted at page 5 of the judgment
that:
“ Now if I accept that the police officer concocted a story and planted cocaine on
the Claimant, that will of course provide sufficient evidence of malice. It will follow
that there would have been no cause whatsoever for the prosecution. But this is not
a conclusion that a court can lightly come to. Although the standard of proof is a
15 At page 586, paragraphs C - H 16 CV 2007-03211
Page 26 of 40
balance of probabilities, the court will require the most cogent evidence to support
such findings.”
77. The onus was on the Claimants to provide the most cogent evidence in order to prove on a
balance of probabilities that PC Beepat and the other officer planted the firearm,
ammunition and marijuana in the house while they were not present.
78. The Claimants’ consistent evidence was they were outside the house when it was searched
and they were brought back into the house when one of the officers took out the firearm,
ammunition from under the bed and placed it on the bed and that marijuana was also shown
to them as if it was found by the bed.
79. Again to disprove the Claimants’ evidence, the Defendant relied on the sole evidence of
PC Ramdial. In my opinion the reliance solely on PC Ramdial’s evidence to disprove the
Claimants’ assertion was not sufficient to disprove the Claimants’ assertion. There was no
evidence from any of the other officers including PC Beepat at the trial to corroborate PC
Ramdial’s evidence that the search took place in the presence of the Claimants. There was
no evidence to corroborate PC Ramdial’s evidence that there were two officers inside the
house while the Claimants were outside. The Defendant did not even produce the Station
Diary Extract which PC Ramdial stated would have contained the details of the execution
of any alleged search warrant.
80. I have therefore concluded that in light of the strong, cogent and consistent evidence the
Claimants have provided strong evidence to prove their allegation that the officers planted
the firearm, ammunition and marijuana in the house.
Failure to prosecute the charges against the Claimants
81. The Claimants also asserted that the Defendant failed to prosecute the charges against them.
Both Claimants stated in their evidence in chief that after they were charged, they were
brought before a Magistrate and the police objected to bail due to the nature of the offences.
Page 27 of 40
The police continued to prosecute the charges against them for two years. They both stated
that the charges were set down for trial but PC Beepat never appeared nor did they produce
the firearm which was allegedly found on the premises and in the absence of any evidence
to prosecute them the charges were dismissed against them.
82. In cross-examination, the First Claimant stated that he did not recall stating that the officer
did not attend court while the matter was being heard. He was shown paragraph 16 of his
witness statement and exhibit “RCA”. He then changed his evidence and stated that the
officer did not on the day of the trial but he appeared on the other days the matter was being
heard. It was put to him that he stated that the officer neglected his duties by not appearing
in Court. He said he would not say the officer neglected his duties on the days he did not
appear in Court. He testified that the absence of his attorney at law on two occasions was
not the reason why the matter could not proceed. He testified that the firearm was only
produced in Court on the first day of hearing.
83. PC Ramdial testified that he was unable to attend the matter because he never received a
summons to appear nor was he ever informed of any dates of the hearing in Court. PC
Ramdial also stated in cross-examination that after the discovery of the firearm,
ammunition and marijuana, they would have been sent separately to forensics by PC Beepat
and that the officer who submitted the samples to forensics would have to be the one to
collect it. He also stated that the officer would be the one to present the exhibits if there is
prosecution. PC Ramdial explained that PC Beepat who was the complainant would have
been responsible for obtaining and serving the summons for his appearance in the
Magistrate’s Court. He said that he never received a summons to appear and that if he was
aware of the trial date he would have appeared.
84. The totality of PC Ramdial’s evidence was that he did not appear in the Magistrate’s Court
for this matter. He did not know if PC Beepat produced the firearm, ammunition and
marijuana which were allegedly found on the premises in the Magistrate’s Court. He could
not indicate if PC Beepat had sent the firearm, ammunition and marijuana for the
appropriate testing and if the results were received. There was no documentary evidence
which was adduced into evidence by the Defendant to prove that PC Beepat took the steps
Page 28 of 40
which PC Ramdial speculated that he ought to have taken and there was no evidence from
PC Beepat to indicate the steps he took in prosecuting the case against the Claimants after
they were charged.
85. In my opinion based on PC Ramdial’s very limited evidence, I cannot conclude that PC
Beepat prosecuted the charges against the Claimants.
Application of the objective and subjective test
86. In my opinion, despite PC Ramdial’s best efforts and even if I accepted all his evidence,
which I did not, PC Ramdial still could not state what facts informed PC Beepat’s decision
to arrest, charge and prosecute the Claimant. PC Ramdial could not state if PC Beepat
honestly had the requisite suspicion and belief that the Claimants were in possession of a
firearm and ammunition without a licence and marijuana. There was no evidence of PC
Beepat’s observations. The Court was provided with evidence of PC Ramdial’s
observations but where the case against the Defendant was one of fabrication and
concoction of evidence, the evidence from the arresting officer, namely PC Beepat, was
critical in challenging the cogency of the evidence presented by the Claimants. There was
no evidence from PC Beepat of what were the objective circumstances which he relied on
for his suspicion and belief. There was also no evidence from PC Beepat of whether his
belief on those circumstances were based on reasonable grounds.
87. Therefore, in the absence of PC Beepat’s evidence, the failure to provide any
contemporaneous documents and the cogent evidence by the Claimants, I have concluded
that they have discharged their responsibility of proving that PC Beepat did not have
reasonable and probable cause for charging them for the offences of possession of a
firearm, ammunition and marijuana.
Page 29 of 40
Was PC Beepat actuated by malice in instituting the proceedings against the
Claimants?
88. The First Claimant alleged that the motive the officers had in planting the firearm,
ammunition and marijuana in his house was because he had lodged reports against one of
their colleagues, Officer Dawin Ghouralal. The First Claimant’s evidence in chief was that
between July-August 2009 to January 2010, he had differences with a police officer known
as “Dawin” in relation to the treatment of his brother by the said officer. His brother was
eventually arrested by Dawin for certain offences. On the 1st February 2010, the day of his
brother’s hearing, the First Claimant made a report of the conduct of the officer to the
Police Complaint’s Authority. After lodging the report and returning to the Magistrate’s
Court on the same day, he was arrested by the same officer against whom he had just lodged
the complaint. He was told that he was arrested because he threatened “Officer Dawin”
outside the Magistrate’s Court. He denied this but was still taken to the San Fernando Police
Station where he was held for five hours before a formal statement was taken and he was
then released with a threat of prosecution; to date no such prosecution had materialized.
89. According to the First Claimant, on the 8th February 2010 his Attorney at law, Ms.
Petronilla Basdeo, dispatched a formal letter of complaint against the conduct of the said
officer Dawin to the Commissioner of Police.
90. In cross-examination, the First Claimant stated that he told the officer he knew they were
only treating him that way because of his complaint against Officer Dawin. In cross-
examination, the First Claimant admitted that he did not know PC Ramdial or PC Beepat
before his house was searched. The complaint he lodged with the Police Complaint
Authority contained no information about PC Ramdial and PC Beepat. He admitted that
there was no evidence in his witness statement about whether PC Beepat and PC Ramdial
had any relations with Officer Dawin.
91. The Second Claimant’s evidence in cross-examination was that before the night of the
incident he had never seen nor interacted with any of the officers who were involved in the
search.
Page 30 of 40
92. PC Ramdial’s evidence in cross-examination was that he worked in the same Southern
Division with Officer Darwin Ghouralal and that they were stationed at the same police
station once prior to but not at the time of the incident.
93. In Sandra Juman v the Attorney General 17 Mendonca JA stated at paragraph 25
decribed how the Court can infer malice as:
“Malice may be inferred from an absence of reasonable and probable cause but this
is not so in every case. Even if there is want of reasonable and probable cause, a
judge might nevertheless think that the police officer acted honestly and without ill-
will, or without any other motive or desire than to do what he bona fide believed to
be right in the interests of justice: Hicks v Faulkner [1987] 8 Q.B.D. 167 at page
175.”
94. In A v NSW18 the Court described malice as:
“What is clear is that, to constitute malice, the dominant purpose of the prosecutor
must be a purpose other than the proper invocation of the criminal law – an
‘illegitimate or oblique motive’. That improper purpose must be the sole or
dominant purpose actuating the prosecutor.”
95. The Court further went on to observe at paragraph 12:
“An improper and wrongful motive lies at the heart of the tort, therefore. It must
be the driving force behind the prosecution. In other words, it has to be shown that
the prosecutor’s motives is for a purpose other than bringing a person to justice.”
96. In the Privy Council decision of Sandra Juman v The Attorney General of Trinidad
and Tobago19 the Court dismissed the appeal and made the following comment on malice
as:
17 Civ. App. 22 of 2009, 18 [2007] HCA 10; 230 CLR 500 19 [2017] UKPC 3
Page 31 of 40
“18. The essence of malice was described in the leading judgment in Willers v
Joyce at para 55:
“As applied to malicious prosecution, it requires the claimant to prove that
the defendant deliberately misused the process of the court. The most
obvious case is where the claimant can prove that the defendant brought the
proceedings in the knowledge that they were without foundation… but the
authorities show that there may be other instances of abuse. A person, for
example, may be indifferent whether the allegation is supportable and may
bring the proceedings, not for the bona fide purpose of trying that issue, but
to secure some extraneous benefit to which he has no colour of a right. The
critical feature which has to be proved is that the proceedings instituted by
the defendant were not a bona fide use of the court’s process.”
97. If, however, PC Beepat knew he had no evidence to charge the Claimants since he had
planted the items in the house, it cannot be said he had an honest belief that the Claimants
were probably guilty of any offence and in the absence of any explanation from PC Beepat
malice may be inferred.
98. Although the Claimants did not know the officers before the incident, in my opinion, the
Court has a sufficient basis to impute malice for the following reasons. There was the
absence of any evidence from PC Beepat that he had reasonable and probable cause to
charge the Claimants. There was no basis for PC Beepat to obtain any search warrant. The
execution of the alleged search warrant was improper and the manner in which the search
was conducted gave the officers ample opportunity to plant the firearm, ammunition and
the marijuana in the First Claimant’s house.
Page 32 of 40
If the Defendant is found to be liable for any of the claims, what is the appropriate
measure of damages to be awarded?
99. Although the Claimants claimed a breach of his fundamental constitutional rights it is not
necessary to make such a declaration since they have followed the correct procedure of
bringing an action for the tort. See Antonio Webster v The Attorney General20.
100. The Claimants’ claimed special damages, general damages, aggravated and exemplary
damages.
Special damages
101. It is settled law that the Claimants must plead and prove their case of special damages. The
First Claimant pleaded special damages for costs of Defence at Magistrate’s Court in the
sum of $15,000.00 and costs of travelling in the sum of $1,000.00. The Second Claimant
also pleaded special damages for costs of Defence at the Magistrate’s Court in the sum of
$15,000.00 and costs of travelling in the sum of $1,000.00.
102. To support the aforesaid claims, the First Claimant’s evidence was that he paid legal fees
in the sum of $15,000.00 in parts to the Attorney at law who represented him in the
Magistrate’s Court over the two year period of the matter. A hearsay notice was filed on
his behalf which exhibited a receipt dated the 11th December 2010 in the sum of $3000.00
from Mr. El Farouk Hosein, Attorney at law, made out to the First Claimant. The First
Claimant also testified that he lives in Moruga and the matter was heard in Princes Town
so he had to travel back and forth on each day the matter was heard and that it was heard
fifteen (15) times and it costs him $1000.00 in travelling in to attend to Court and to return
home.
103. The Second Claimant’s evidence was he retained the services of Mr. Subash Panday and
Mr. El Farouk Hosein, Attorney at law, to defend him in the Magistrate’s Court. He said
20 [2011] PC 22.
Page 33 of 40
he paid the sum of $15,000.00 as legal fees and he did not pay all the legal fees at one time
but in parts. He testified that he received a couple of receipts for the moneys he paid but he
did not keep the receipts. He also testified that the records in the Magistrate’s Court show
that he was always represented by an attorney at law when the matter was called in the
Magistrate’s Court.
104. In The Great Northern Insurance Company Limited v Johnson Ansola21 Mendonca
JA stated that:
“it seems clear that the absence of evidence to support a plaintiff’s viva voce
evidence of special damage is not necessarily conclusive against him. While the
absence of supporting evidence is a factor to be considered by the trial Judge,
he can support the plaintiff’s claim on the basis of viva voce evidence only.
This is particularly so where the evidence is unchallenged and which, but for
supporting evidence, the Judge was prepared to accept. Indeed in such cases,
the Court should be slow to reject the unchallenged evidence simply and only
on the basis of the absence of supporting evidence. There should be some other
cogent reason.”
105. I am satisfied that the First Claimant paid Mr. El Farouk Hosein $3,000.00 for his
representation in the Magistrate’s Court. I was not so satisfied that the Second Claimant
made such payments. In my opinion, if the Claimants had misplaced the receipts they could
have obtained a letter from their respective Attorneys at law who represented them in order
to prove that the sums were paid. Therefore, I would only award the sum of $3,000.00 to
the First Claimant.
106. However, I accept that with respect to the sums claimed for travelling it would have been
unrealistic for the Claimants to produce any receipts to support this claim. I accept the
Claimants viva voce evidence with respect to the said claims and I would allow them.
21 Civil Appeal No: 121 of 2008
Page 34 of 40
General damages
107. The Claimants are only entitled to damages for their malicious prosecution claim.The
relevant heads of damages22 for the tort of malicious prosecution are as follows:
(i) injury to reputation; to character, standing and fame;
(ii) injury to feelings; for indignity, disgrace and humiliation caused and suffered;
(iii) Deprivation of liberty; by reason of arrest, detention and/or imprisonment.
108. In addition, aggravating factors that can justify an uplift in the form of an award for
aggravated damages are to be considered. In Bernard v Quashie23, it was held that a single
figure is awarded for all heads of compensatory damage, including aggravated damages.
109. In Terrance Calix v the Attorney General of Trinidad and Tobago24 the Privy Council
stated at paragraph 23 that:
“The respondent did not seek to uphold the Court of Appeal’s conclusion
that the grant of bail was a judicial act which became the cause of the
appellant’s detention. A claimant’s failure to take up a grant of bail (which
is the avowed basis on which the appellant should not recover compensation
for loss of liberty) is not a “judicial act”. In any event, although a judicial
act precludes liability in false imprisonment, it does not relieve the
prosecutor of liability in malicious prosecution: the prosecutor remains
liable for the damage caused by his setting the prosecution in motion- see
Lock v Ashton (1848) 12 QB 871 (116 ER 1097) . For the reasons given
above in relation to the judge’s error in concluding that the appellant would
have obtained bail, the Court of Appeal’s second conclusion viz that it was
the appellant’s failure to apply for a variation of his bail conditions which
endangered his liberty is also erroneous. The Board has therefore concluded
that the appellant was entitled to recover compensation for his loss of
liberty.” (Emphasis added)
22 Mc Gregor on Damages, 17th Ed., 2003, paras. 38-004 to 38-005 23 Civ App. No. 159 of 1992, at page 9 24 [2013] UKPC 15
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110. Both Claimants were prosecuted for two years. Both Claimants testified that when the
officers arrived at the house they were handcuffed and dragged outside the house where
they were held while the two officers remained in the house. The Claimants testified that
were then dragged back into the house and taken to the bed where the First Claimant slept
and this was where one of the officers bent down and pulled out a black cloth, placed it on
the bed and unwrapped it revealing a gun. Both denied ownership of the firearm. The
Claimants testifed that they were then bodily dragged from the house, roughly handcuffed,
placed in a marked police vehicle and driven to the Princes Town Police Station. They
remained in handcuffs throughout. They were removed from the vehicle and taken to a
room in the station where they were ordered to sign a statement admitting to knowledge of
the firearm. They refused and were beaten with a baton, after which they were ordered
again to sign. They refused again and were beaten once more. They were then placed in a
cell at the station. They testified that the cell was small and smelt highly of faeces. There
was no bed, only a concrete slab to either sit or lie upon. There was no toilet just a bucket
in the corner that led to a hole in the floor. The Claimants also testified that they were
horrified of the state of the cell they were placed in. They were held in the cell for all of
Saturday, Sunday and Monday. They were taken before the Magistrate on Tuesday 23rd
February 2010. At the Magistrate’s Court the police objected to bail due to the nature of
the offences. The Magistrate upheld the objections and refused bail. The police continued
to prosecute the charges against them for two years.
111. Both Claimants also testified that they lived in fear of being sent to jail for a crime they did
not commit the entire time the charges were pending. They lived with shame of being
before the Court for a crime they did not commit. They were humiliated and traumatized.
The event has scarred them and they no longer have respect or trust in the police. The First
Claimant also testified that he was a security officer and the stigma of the charges
threatened his job. There was no evidence from the Claimants of the conditions of Remand
Yard where they were until they obtained bail.
112. In determining the award of general damages to be awarded to each Claimant, in addition
to the evidence, I also considered the following judicial trends:
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(a) In Gerald Rodney Rampersad v the AG25 was a claim for malicious
prosecution arising out of the Dangerous Drugs Act where the police were
found to have fabricated the charges laid. The Court awraded the sum of
$160,000.00 in damages for malicious prosecution on the 21st April 2014.
(b) In Deryck Warner v The Assistant Superintendent Clarke and the AG26
the claim was for assault and battery, false imprisonment and malicious
prosecution. The Claimant was awarded the sum of $200,000.00 for false
imprisonment and malicious prosecution inclusive of aggravated and
exemplary damages on the 12th February 2016.
(c) In Mustapha Ghany vs PC Ramdin and The AG27 the case concerned
fabrication of evidence on the part of the police. The sum of $35,000.00 was
awarded in damages on 19th February 2016.
(d) In Marcus Shaw vs The AG28 there also an allegation of fabrication of
evidence by the police. The Claimant was awarded $50,000.00 in damages for
malicious prosecution on the 7th March 2017. This also included an element for
aggravated damages.
(e) In Onnell Dyer vs The AG29 there was also an allegation of fabrication and
the arresting officer failed to testify at the trial. The Court awarded the sum of
$40,000.00 in damages on the 20th September 2017. The Court took into
consideration that the although the Claimant pleaded that the conditions under
which he was detained was not good, the evidence which he provided was
meagre.
113. Based on the judicial trends the range appears to be between $50,000.00 to $200,000.00.
Taking into account the circumstances in this matter, I am of the opinion that an adequate
award for general damages which sum includes an uplift for aggravation is the sum of
25 CV 2009-04698 26 CV 2014-00542 27 CV 2015-01921 28 CV 2015-02596 29 CV 2015-03201
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$150,000.00. I therefore award each Claimant the sum of $150,000.00 as general damages
including an uplift for aggravating factors.
Should the Court award exemplary damages?
114. Exemplary damages may be awarded where there is the presence of outrageous conduct
disclosing malice, fraud, insolence and cruelty. In Rookes v Barnard,30 Lord Devlin stated
that exemplary damages are different from ordinary damages and will usually be applied –
(i) where there is oppressive, arbitrary or unconstitutional conduct by servants of
government;
(ii) where the defendant’s conduct had been calculated to make a profit; and
(iii) where it was statutorily authorised.
115. The function of exemplary damages is not to compensate but to punish and deter and that
such an award can appropriately be given where there is oppressive, arbitrary or
unconstitutional action by servants of the government. Lord Carswell in the Privy Council
case of Takitota v The Attorney General of Bahamas31 stated that, “[T]he awards of
exemplary damages are a common law head of damages, the object of which is to punish
the defendant for outrageous behaviour and deter him and others from repeating it ...”
116. Having accepted the Claimants’ version of events, I am of the opinion that an award for
exemplary damages is appropriate since the officers as servants or agents of the State used
their authority to concoct a story and plant evidence on the Claimants. The Claimants were
charged as a result and the officers proceeded with the prosecution which continued for
two years. In my view, such action by the officers as agents of the State was oppressive. I
therefore award exemplary damages in the sum of $20,000.00 to each Claimant.
30 [1964] AC 1129 31 P.C.A No. 71 of 2007
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Interest
117. The award of interest on damages is discretionary pursuant to section 25 of the Supreme
Court of Judicature Act32. The Court of Appeal in The Attorney General of Trinidad
and Tobago v. Fitzroy Brown et al33 reduced interest awarded for false imprisonment,
where allegations of assault were made, at the rate which is payable on money in court
placed on a short term investment account. As such, bearing in mind that monies are placed
in the Unit Trust account and since this was not a case where the commercial lending rates
was applicable the Court of Appeal reduced the interest awarded from 9% to 2.5%.
118. Therefore interest on general damages in the instant matter is awarded at the rate of 2.5%
per annum from the date of service of the Claim (in the case of the First Claimant it was 5th
February 2016 and in the case of the Second Claimant it was the 28th October 2016) to the
date of judgment and interest on special damages is awarded at 1.25% per annum from the
accrual of the cause of action to date of judgment.
Costs
119. The costs in this matter is to be determined on the prescribed scale pursuant to Part 67 of
the CPR.
Conclusion
120. The Claimants’ claims for wrongful arrest and detention and assault and battery are statutue
barred. As such, the Defendant is not liable in damages to the Claimants with respect to
those claims.
121. The Defendant did not have reasonable and probable cause for charging the Claimants for
the offences of possession of a firearm, ammunition and marijuana.
32 Chapter 4:01 33 CA 251 of 2012
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122. PC Beepat was actuated by malice in instituting proceedings against the Claimants in that
there was absence of evidence from him that he had reasonable and probable cause to
charge the Claimants, there was no basis for him to obtain any search warrant, the execution
of the alleged search warrant was improper and the manner in which the search was
conducted gave the officers ample opportunity to plant the firearm, ammunition and the
marijuana in the First Claimant’s house.
123. The First Claimant is awarded the sum of $4000.00 in special damages. The Second
Claimant is awarded the sum of $1000.00 in special damages. Interest is awarded on the
special damages at a rate of 1.25% per annum from the date of accrual of the cause of action
to date of judgment.
124. The Claimants are awarded the sum of $150,000.00 each in general damages which
includes an uplift for aggravating factors. Interest is awarded on general damages at the
rate of 2.5% per annum from the date of service of the claim to the date of judgment.
125. The Claimants are awarded the sum of $20,000.00 each in exemplary damages.
Order
126. Judgment for the Claimants.
127. The Defendant to pay the First Claimant general damages assessed in the sum of
$150,000.00 with interest at the rate of 2.5% per annum from the date of service of the
Claim Form i.e 5th February 2016 until judgment. This sum includes an uplift for
aggravated damages.
128. The Defendant to pay the First Claimant’s special damages assessed in the sum of
$4,000.00 with interest at the rate of 1.5% per annum from the date of accrual of the cause
of action until judgment.
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129. The Defendant to pay the Second Claimant’s general damages assessed in the sum of
$150,000.00 with interest at the rate of 2.5% per annum from the date of service of the
Claim Form i.e 28th October 2016 until judgment. This sum includes an uplift for
aggravated damages.
130. The Defendant to pay the Second Claimant’s special damages assessed in the sum of
$1000.00 with interest at the rate of 1.5% per annum from the date of accrual of the cause
of action until judgment.
131. I award each Claimant the sum of $20,000.00 as exemplary damages.
132. The Defendant to pay the Claimants costs in the sum of $62,999.06.
…………………………..
Margaret Y Mohammed
Judge
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