THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

No. CV 2013-02670

BETWEEN

HERBERT SYLVESTER

(Wrongfully charged as Hubert Sylvester)

JOANNE DOOLAL

NELON SYLVESTER

Claimants

AND

THE HONOURABLE ATTORNEY GENERAL

OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Mr. Justice R. Rahim

Appearances:

Mr. H. Ramnath for the Claimants

Ms. K. Bello instructed by Ms. L. Thomas for the Defendant

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JUDGMENT

1. This is a claim for malicious prosecution. On January 15th, 2004 the Claimants were at the

home of the First and Second Claimants, at No. 5A Indarsingh Drive, Diamond Village,

San Fernando, when police officers conducted a search of the premises. The First and

Second Claimants share a common law relationship and are the owners of a licensed bar

called Esperance Recreation Club. The Third Claimant is the nephew of the First and

Second Claimant. The Claimants were taken to the San Fernando, Police Station where they

were charged with possession of a firearm and ammunition, they not being exempted under

Section 7 of the Firearms Act Chapter 16:01 (hereinafter referred to as “the Act”). The

charges against the Claimants were dismissed at the San Fernando Magistrate’s Court on

the August 25th, 2009.

2. Aside from the main issues of law applicable in malicious prosecution claims, there is a

dispute of fact as to whether the police officers found a firearm and ammunition within the

residence.

The Evidence

The Claimants

3. The First, Second and Third Claimants all gave evidence. It is their case that around

6:15a.m on the 15th

January, 2004, approximately twelve (12) police officers conducted a

search on the First and Second Claimant’s home without producing a search warrant. The

First Claimant testified that he had returned home shortly before the officers arrived. The

Second Claimant was at home with her two sons and the Third Claimant, who had spent the

night at the residence after working in the bar. It is the evidence that the Third Claimant

worked part-time in the bar but was employed elsewhere as a labourer at Bjoy Plumbing &

Construction Services Limited of No. 3 Phillipine Road, Palmiste, San Fernando. It is the

Claimants’ case that he was assisting in the bar the previous evening because the First

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Claimant went out at the night and left the Second and Third Claimants in charge of the bar.

The Claimants also maintain that nothing illegal was found on the premises and they were

not told of the reason for their arrest, nor were they shown a search warrant.

4. The First Claimant testified that his bedroom was searched in his presence by an Officer

named Lakey. According to the First Claimant, Lakey may not be the officer’s name but it

may in fact be what is commonly called a nickname. The Second Claimant testified that she

went into the boys’ room with Cpl Lewis and a female Officer while it was being searched.

The Second Claimant was therefore on the evidence not present during the search of the

what could be called the master bedroom. It follows that according to the case for the

Claimants, the First Claimant was not present during the search of the children’s room. The

Third Claimant was sitting on the couch with the children. The First and Second Claimants

deny that the middle room was locked and that the Second Claimant produced a key to open

the middle room. The Second Claimant testified that she was not present with PC Ghouralal

when he was searching the middle room.

5. The Claimants testified that after the officers finished conducting the search of the premises

they were told that they were being taken down to the Police Station for inquires.

6. The First and Third Claimants testified that they were not shown any firearm or

ammunition at their home and that the first time they saw a firearm was at the police station

when Officer Ghouralal came to the cell and showed it to them. The Second Claimant

testified that the first time she saw the firearm was at the Magistrate’s Court.

7. Further, it is the evidence of the Claimants that upon arrival at the Police Station, they were

placed in cells which were filthy and contaminated with human excretion. The Claimants

further testified that there were no toilet facilities and no beds. They were forced to excrete

on the floor and thereafter sleep next to the same. The court notes at this stage that there

was no cross examination of any of the Claimants in relation to these facts by the Defence

save and except the Third Claimant who maintained his evidence in large measure.

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8. Additionally, they also claim that they were denied access to drinking water and food. The

Claimants averred that they were never told of their constitutional rights nor were they told

of the reason for their arrest.

The Defendant

9. The Defendant filed two witness statements, one by the officer who laid the complaint in

the Magistrate’s Court, PC Darwin Ghouralal, and one by Corporal Davis Lewis. PC

Ghouralal was unavailable for trial but a hearsay notice dated 28th

of November, 2014 was

filed in respect of his evidence. His evidence exhibits the Notes of Evidence dated 5th

August, 2009 in respect of Case No. 362 – 63/04 PC Ghouralal v (1) Hubert Sylvester (2)

Joanne Doolal (3) Nelon Sylvester, the Certificate of Analysis and the Search Warrant.

10. The evidence of PC Ghouralal was that on the 15th

of January, 2004, he, in the company of

Police Corporal Davis Lewis, who was then a Police Constable and other officers went to

the First and Second Claimant’s home. The purpose of this visit according to PC Ghouralal

was to execute a search warrant for firearms and ammunition, which he alleges was in their

possession at the time.

11. According to PC Ghouralal’s evidence, upon his arrival at the First and Second Claimant’s

home, the First Claimant came to the door and he, Ghouralal identified himself by showing

the First Claimant his Trinidad and Tobago Police Identification Card. PC Ghouralal further

testified that he saw CPL Lewis do the same. PC Ghouralal then enquired from the First

Claimant if he, the First Claimant lived there and he replied yes. PC Ghouralal further

enquired from the First Claimant if anyone else lived at the residence; the First Claimant

replied yes, his wife and nephew. At that time PC Ghouralal testified that he saw the

Second and Third Claimant and he repeated the identification process to them. PC

Ghouralal showed and read the contents of the Search Warrant before he initiated the search

of the premises.

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12. PC Ghouralal testified he proceeded to a bedroom on the south side of the building and

enquired who was occupying the room. According to PC Ghouralal’s evidence the Third

claimant by a show of hand indicated that he was occupying the room. After such, PC

Ghouralal then moved to the middle room (storeroom), which was locked and he requested

a key to open the room. PC Ghouralal testified that the Second Claimant produced a key

and opened the door. PC Ghouralal searched this room in the presence of the Second

Claimant. PC Ghouralal upon checking a folded piece of blue tarpaulin, found a concealed

firearm and ammunition.

13. According to PC Ghouralal’s evidence he showed his findings to Cpl Lewis and the other

two Claimants who were seated on the couch. PC Ghouralal then proceeded to caution the

Claimants in accordance with Rule 3 of the Judges Rules. PC Ghouralal asked all three

Claimants if they were holders of a Firearm Users License or holders of a Firearm User’s

Certificate License or if they were exempted under the Act and they responded that they

were not.

14. PC Ghouralal testified that he told the Claimants that they were under arrest for possession

of firearm and ammunition and took them to the Police Station where they were informed

of their rights and privileges however they made no requests.

15. This court is cognizant of the fact that this witness was not presented for cross-examination

and therefore no opportunity has been afforded to the Claimants to test the veracity of this

evidence. In those circumstances this court is left with no choice but to give very little

weight to the evidence of this witness.

16. According to the evidence of Cpl. Lewis on January 15th

, 2004, he in the company of PC

Ghouralal and other officers proceeded to the First and Second Claimant’s home to execute

a search warrant for arms and ammunition obtained by PC Ghouralal. Cpl Lewis

maintained that the officers identified themselves and read the search warrant to the

occupants of the home.

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17. Cpl. Lewis testified that upon arrival at the premises, the Claimants were present along with

the two sons of the First and Second Claimant. He further testified that he identified himself

to the First and Second Claimant upon entering the premises but did not identify himself to

the Third Claimant. Cpl. Lewis testified that he was a party to the search that was

conducted on the premises and that he and a woman Police Officer, named Mrs. Chance

searched a room in the presence of the Second Claimant.

18. Additionally, during cross examination, Cpl. Lewis testified that one of the rooms on the

premises was locked and PC Ghouralal asked for it to be opened. Cpl Davis further testified

that the Second Claimant produced a key to open the room and that he and the Second

Claimant were present when PC Ghouralal was searching this room.

19. Cpl. Lewis testified that during the search of this room a firearm and ammunition were

under a blue tarpaulin and that these findings were shown to the Claimants at the premises.

The Corporal further testified that he could not recall if the Claimants were asked if they

were in possession of a Firearm Users License. He maintained that the Claimants were told

the reason for their arrest and about their rights.

Defendant’s Submissions

20. It was submitted by the Defendant that it is clear that the absence of reasonable and

probable cause is not demonstrated by showing that there were further inquiries that could

have been made before a charge was laid. See A v State New South Wales [2007] 3 LRC

693 at 748 paragraph 180. Counsel for the Defendant argued that PC Ghouralal must have

had an honest belief that on the material that was available to him at the time of the charge

there was a case fit to be tried.

21. Counsel for the Defendant submits that the Claimants and the Defendant have put forward

diametrically opposed cases and the issue of absence or presence of reasonable and

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probable cause is linked to which version of events the Court believes. In addition, Counsel

for the Defendant submitted that the Claimants’ have made very serious allegations against

servants and agents of the State and in light of the evidence elicited during cross

examination the Defendant submits that the evidence of the Claimants’ is highly

incredulous and their version of events ought not to be believed. Further Counsel submits, if

the Court finds that the Claimants’ case is sufficiently lacking in credibility, it should be the

end of this matter and the Court ought to reject their claim in its entirety.

22. The Defendant submits that the Claimants have failed to challenge the fact that the search

warrant was obtained prior to the search of the Claimants’ premises and that it is not likely

that the Officer Ghouralal would have gone through the trouble of obtaining a search

warrant and then failed or refused to show or inform the Claimants of the search warrant

when he attended their home.

23. Additionally, it was submitted that if the Claimants are to be believed, it would not only

mean that the officers acted in concert to pervert the course of justice and to prefer false

charges against the Claimants by unlawfully securing and carrying an illegal firearm and

ammunition to the Claimants’ premises but it would also mean that Police Corporal Lewis

would have actively participated in the alleged fabrication and concoction of the evidence

since he testified that he was present when Police PC Ghouralal found the firearm and

ammunition.

24. The Defendant therefore submits that having not so cross examined Police Corporal Lewis

with view to establishing that he was an active participant in the alleged fabrication and

concoction of evidence and that the servants of the State concocted or fabricated evidence,

the Claimants have tacitly accepted the truth of his evidence in chief. They are therefore not

entitled to invite the Court to disbelieve this witness in respect of his testimony that the

firearm and ammunition were found on the Claimants’ premises. At Part F

Evidence/Section F7 Cross-examination and Re-examination/Cross-examination: General

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Considerations/Effect of Failure to Cross-examine, the Learned editors of Blackstone's

Criminal Practice 2015 stated -

“In Wood Green Crown Court, ex parte Taylor [1995] Crim LR 879, the

Divisional Court approved the following principle as stated in the 1995

edition of this work: a party who fails to cross- examine a witness upon a

particular matter in respect of which it is proposed to contradict him or

impeach his credit by calling other witnesses, tacitly accepts the truth of the

witness's evidence in chief on that matter, and will not thereafter be entitled

to invite the jury to disbelieve him in that regard. The proper course is to

challenge the witness while he is in the witness-box or, at any rate, to make

it plain to him at that stage that his evidence is not accepted (Hart (1932) 23

Cr App R 202).

25. The Defendant relied on the statement of law in Re H and Re Minors [1996] 1 FCR 509 in

submitting that the Claimants’ failed on a balance of probabilities to prove that there was

any fabrication or concoction of evidence by Police Corporal Lewis, Police PC Ghouralal,

Officer Ifill or any other servants of the State in respect of the material facts of this case.

Counsel further stated where a serious allegation is in issue the standard of proof required is

higher, meaning the more improbable the event, the stronger must be the evidence that it

did occur before, on the balance of probability, its occurrence will be established. Ungoed-

Thomas, J expressed this neatly in Re Dellow's Will Trusts [1964] 1 WLR 451, 455:

"the more serious the allegation the more cogent is the evidence required

to overcome the unlikelihood of what is alleged and thus to prove it."

26. The court pauses to state from the onset that it does not and cannot agree with this particular

submission. The standard of proof remains the same regardless of the allegation and so this

court will not apply a higher standard by the mere fact that allegations of dishonesty are

made against police officers. To so do would be to go against the grain of well-known and

tested authority.

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27. Counsel for the Defendant also relied on the case of Sandra Juman v The Attorney

General Civil Appeal No. 22 of 2009, to demonstrate that the provisions of the Act

recognize that there could be more than one person in possession or control of a firearm and

that a person who is proved to have had in his possession or under his control anything in or

on which a firearm or ammunition is found is deemed to have been in possession of such

firearm or ammunition until the contrary is proved.

28. Counsel for the Defendant therefore submitted, that since the firearm was found at the

premises of the Claimants’ it was reasonable to deem that the Claimants were in possession

of the firearm and ammunition, thus there was reasonable and probable cause to charge the

Claimants.

29. It was further contended by the Defendant that the existence of malice may be inferred from

the absence of reasonable and probable cause and a Claimant who proves malice but not

want of reasonable and probable cause still fails. Glinski v. McIver [1962] 1All E.R. 696 at

page 700 Viscount Simonds also stated:

“Since Johnstone v Sutton (1786), 1 Term Rep. 510, and no doubt

earlier, it has been a rule rigidly observed in theory if not in practice that,

though from want of probable cause malice may be and often is inferred,

even from the most express malice, want of reasonable and probable

cause, of which honest belief is an ingredient, is not to be inferred.”

30. Conclusively, Counsel for the Defendant submitted that in light of the authorities cited

above and the discussion of the evidence, the Claimants have failed to prove malice on the

part of Officer Ghouralal in initiating those proceedings against them. The Defendant also

submits that Officer Ghouralal was not motivated by spite or ill will as the children on the

premises were not arrested and further Nelon Sylvester (who admits that he made no

complaints) was also arrested as he was found on the premises.

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The Claimant’s Submissions

31. Counsel in his submissions referred to the case of Manzano –v- The Attorney General of

Trinidad and Tobago Civil Appeal No.151 of 2011 which lays out the principles of law in

relation to malicious prosecution. These are well known and accepted principles of law. At

paragraph 16, the Honourable Mr. Justice of Appeal Mendonca set out what a Claimant

must prove namely:-

i. That the law was set in motion on a charge for a criminal offence by the

Defendant.

ii. That he was acquitted of the charge or that the proceedings were otherwise

determined in his favour.

iii. That in instituting and continuing the prosecution the Defendant did so

without reasonable and probable cause.

iv. That the Defendant was actuated by malice and

v. In consequence the Claimant suffered damage.

32. Both Attorneys submitted and the court agrees that there is no issue in this case with respect

to (i) and (ii) above.

33. Counsel also relied on various well known passages in Manzano supra to demonstrate the

interconnection between the fact that the Claimants were unsuccessfully prosecuted for

having in their possession a firearm and ammunition they not being the holders of the

requisite license for so doing and that malice can be inferred from the absence of reasonable

and probable cause. He submits that whilst it may be a question of degree, a prosecution

launched with insufficient material may suffice to infer malice and so to the absence on an

honest belief in the merits of the case. The court has no difficulty with this proposition of

law.

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34. It was further submitted that there was an inconsistency in the evidence as to where the

firearm was found. Counsel submitted that this inconsistency is sufficient for this court to

conclude that no such firearm and ammunition were found. This inconsistency according to

the Claimants was as follows: Officer Lewis’ evidence is that a firearm and ammunition

was found under a blue tarpaulin whereas Officer Ghouralal said he found it concealed in

the tarpaulin. The court wishes to add at this stage that it is of the view that these two pieces

of testimony are not inconsistent but are, from a common sense view, simply another way

of saying the same thing.

35. Further it was argued on the Third Claimant’s behalf that assuming the court finds that the

firearm and ammunition were found at the First and Second Claimant’s home, it is

submitted that there was no evidence that the Third Claimant was in possession or control

of the premises in which the firearm and ammunition were allegedly found.

36. Counsel for the Claimant relied on the cases James & Wong v O’Connor (unreported

Mag. App. No. 274 of 1973) and Sandra Juman supra on Section 5(2) of the Act, to show

that the prosecution must be able to prove that the Third Claimant had possession or control

of the premises and it was submitted that there is no such evidence in this case.

37. In support of this contention, Counsel further submitted that Officer Ghouralal at page 55 of

the First Trial Bundle lines 10 and 11 stated that he had no evidence that the third

Defendant knew the firearm was there on the premises.

38. Counsel submitted that the Third Defendant is in a different position from the others and his

claim ought to succeed on the basis that even if he knew he had no control.

39. Further it was submitted by Counsel for the Claimants that if as the Police stated that the

Second Claimant produced a key then it would appear that she would be the one in control

of the room and the First Claimant would be in a similar position to the Third Claimant.

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40. According to Counsel for the Claimants, Section 5 of the Act was repealed by Act No.2 of

2011 which placed the burden of proof on the accused, however, these cases were laid in

January, 2004 and the amendment was not applicable but demonstrates the change in law

and burden.

41. It was further submitted by Counsel for the Claimants that pursuant Section 5(2) of the Act,

prosecution in the context of this case means knowledge and control.

FINDINGS

REASONABLE AND PROBABLE CAUSE

Facts

42. The court finds that the evidence of Corporal Lewis to be preferred over that of the

Claimants as regards the manner in which the search of the premises occurred and the fact

that a firearm and ammunition were found under a tarpaulin in a locked room within the

house. It is clear on the evidence that the Police were armed with a search warrant. The

endorsement of execution written at the back of the warrant, commonly called the backing

of the warrant of is in the court’s view made contemporaneously or within a short proximity

after the search. The back of the warrant shows an endorsement made by PC Ghouralal on

the day of the search which supports the matters testified to by Corporal Lewis. That

backing is not of itself testimony but it is one of the items of evidence that appears to

support the testimony of the police officers that firearm and ammunition was found that day

although the warrant does not specify where in the house the firearm was found. The court

notes that the defence did not challenge the existence of the search warrant or the evidence

given in that regard.

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43. Further, the evidence of Cpl. Lewis in the court’s view remains strong in material

particular. In contrast, the evidence of the First Claimant under cross examination has

shown him not to be credible on the main issue of the finding of the firearm as he admitted

that he was taken to another room with PC Lakey to have that room searched. In those

circumstances, it is entirely plausible that while this was in progress, PC Ghouralal was

searching another room with the Second Claimant while the Third Claimant sat in the living

room. This would account for the evidence of Cpl. Lewis that Ghouralal was at the time

searching another part of the house, received keys for the locked room from the Second

Claimant and found the firearm and ammunition upon searching that room in the presence

of the Second Claimant. Were it otherwise, it would be that the Police Officers searched the

house while all the Claimants sat in the living room, found nothing, but still arrested the

Claimants and took them to the police station where they produced a firearm and

ammunition and showed it to the First Claimant only. In those circumstances it would be

that Cpl. Lewis and the female officer who was also present at the least would have been

part of a large conspiracy to set up the entire family except the children. In the court’s view

this allegation holds no merit.

44. In so saying the court is aware that the Claimants are alleging that officers would visit their

bar from time to time and make demands and that the set up was due to their refusal to give

into the demands. The court notes that the Claimants have filed complaints with the Police

Complaints Authority in this regard but these complaints are just that, an allegation made

by the Claimants. This court is unaware as to whether there has been an investigation of

these allegations and the outcome thereof. Suffice it to say that the First Claimant’s

credibility was in the court’s view affected by his insertion in his evidence of an officer

named Ifill who formed no part of the case prior to the trial. In fact nowhere is he

mentioned as a participant either in relation to the allegations of demands for bribes or as

being in the search party throughout the Statement of Case. However, the First Claimant

appears to have inserted his presence in the conspiracy.

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45. The court therefore finds that there was in fact no conspiracy between the twelve officers or

between any of the officers to frame the Claimants on that day. The allegations are baseless

and untrue in the court’s view.

Law

46. In Manzano, His Lordship Mendonca JA delivering the decision of the court set out the

both the subjective and objective element of reasonable and probable cause as follows;

“22. What is reasonable and probable cause in the context of the tort of malicious

prosecution was defined in Hicks v Faulkner (1881-1882) L.R. 8Q.B.D 167 (which

received the unanimous approval of the House of Lords in Herniman v Smith [1938] A.C.

305) as follows: “...an honest belief in the guilt of the accused based upon a full

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

which, assuming them to be true, would reasonably lead any ordinarily prudent and

cautious man placed in the position of the accuser to the conclusion that the person

charged was probably guilty of the crime imputed.”

23. It is readily apparent from that definition that reasonable and probable cause has

both a subjective element and an objective element. Reasonable and probable cause must

appear objectively from the facts but also must exist in the mind of the defendant.”

47. This is the test that this court must apply in treating with the issue of reasonable and

probable cause.

48. Section 5(2) of the Firearms Act Chap 16:01, provides that in any prosecution for an

offence under this Part....... [which applies to section 6(1)] a person who is proved to have

had in his possession or under his control anything whatsoever in or on which is found any

firearm or ammunition shall, until the contrary is proved, be deemed to have been in

possession of such firearm or ammunition. This section was subsequently amended in the

year 2011 but that amendment is not relevant to these proceedings.

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49. Section 30 (2) of the said Firearms Act reads as follows:

“Where a firearm or ammunition is found on the premises, the police officer making the

search may arrest without warrant arrest any person found on the premises or in the place

whom he has reason to believe to be guilty of an offence under this Act.”

50. At paragraph 13 of Sandra Juman v AG of Trinidad and Tobago, Civil Appeal 22 of

2009, Their Lordships of the Court of Appeal explored the import of the old section 5(2) as

follows;

“13. The Court of Appeal in the case of James & Wong v O’Connor (unreported Mag.

App. No. 274 of 1973) considered the provisions of sections 5(2) and 6(1) of the Firearms

Act and relied on the oft-cited case of Warner v Metropolitan Police Commissioner

[1969] 2 A.C. 256 (a drugs case). They considered whether Parliament intended to

exclude mens rea as an element of the offence created under section 6(1) in

circumstances where a person is deemed to be in possession under section 5(2). Hyatali

C.J. observed at page 8: “It would therefore follow that a person must have knowledge

that he has possession or control of the thing in which or on which the offending article is

found before he is deemed to have possession of that offending article; and that when he

is so deemed he could rebut that he was in possession thereof by showing that he did not

know or had no reason to know or suspect that the offending article was in or on the

thing referred to.” Emphasis supplied.”

51. It follows in this case that for there to have been reasonable and probable cause by the

police, in respect of both the subjective and objective elements of the test, PC Ghouralal

must have had an honest belief that on the material that was available to him at the time of

the charge there was a case fit to be tried. In so believing, he must have found as a pre-

requisite to laying the charge, that each Claimant would have had knowledge, that he had

possession of the room or house in which the firearm was found.

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52. Having regard to the findings of fact of the court, it is clear that PC Ghouralal would have

been of the honest belief that the First and Second Defendants were in possession and

control of the house and the room in which the firearm was found and had knowledge of

same. It also the finding of the court that the only reasonable inference that can be drawn

from the fact that the two adult husband and wife Claimants lived at those premises and ran

a bar there and at least one handed over the keys to the locked room was that they had

knowledge of the firearms and ammunition and were in possession and control of the house

and the room. As a consequence, they would have been deemed to be in possession of the

firearm and ammunition. That being the case the burden lay on them to demonstrate that the

firearm and ammunition were there without their knowledge or that they had no reason to

suspect that it was there. In this regard it is a reasonable inference that the reason for

locking the room was to hide the firearm and ammunition contained therein. So that the

Claimants have failed to prove the absence of reasonable and probable cause, both the

subjective and objective element. As a consequence the issue of malice does not arise and

their claims will be dismissed.

53. In relation to the Third Defendant however, the position is quite different. The evidence of

PC Ghouralal is that upon entry to the home he was told that the Third Defendant lived

there. This he was told by the First Claimant. He says in his witness statement that he then

identified himself to all three Claimants. The evidence of Cpl. Lewis is somewhat

materially different. Cpl. Lewis testified that he was present when PC Ghouralal identified

himself and the other officers but that they were never identified to the Third Claimant. In

fact form the evidence of this witness it appears that the Third Claimant was sitting in the

living room at the time and further, that there were also two children with him, the children

of the First and Second Claimants. This is the only evidence in relation to occupation of the

house by the Third Claimant but the evidence is unreliable for two reasons. Firstly,

Ghouralal has not been subject to cross-examination so that the court gives very little

weight to what he says in his witness statement, but more fundamentally, Cpl. Lewis gives

a completely different version of events in relation to the Third Claimant. The court

therefore does not accept the evidence that the First Claimant told PC Ghouralal that the

Third Claimant lived at those premises.

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54. There is however, no other evidence whether direct or to be inferred that the Third Claimant

had possession or control of the house or any part or room. There is no direct or other

evidence from which it can be inferred that the Third Claimant would have had knowledge

therefore of the existence of the firearm and ammunition. So that it is quite clear to the

court that applying the relevant test both subject and objective, there would have been no

reasonable and probable cause to charge the Third Claimant for any offence.

MALICE/THE THIRD CLAIMANT

55. To use the words of His Lordship Mendonca JA in the Juman case at paragraph 25;

“Malice must be proved by showing that the police officer was motivated by spite, ill-will

or indirect or improper motives. It is said that 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.”

56. This court having found that PC Ghouralal’s evidence that he introduced himself to the

Third Claimant and that he was told by the First Claimant that the Third Claimant lived at

those premises was unreliable to say the least and possibly concocted, it means that the

absence of reasonable and probable cause must in this case leads to an inference of malice.

The evidence of Cpl. Lewis is diametrically opposed to that of Ghouralal in respect of the

only bit of evidence that may have lawfully linked the Third Claimant to the firearm and

ammunition. That being said the court finds that PC Lewis was extremely honest and

forthright with the court but Lewis was not the officer who laid the charge. In the event, the

court shall award damages to the Third Defendant for malicious prosecution.

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DAMAGES

57. According to the evidence of the Third Claimant, he paid some fifteen thousand dollars

($15,000.00) for legal representation at the Magistrates’ Court. The Third Claimant claimed

he incurred a loss of earnings of three thousand, four hundred and eighty dollars ($3480.00)

for the period of imprisonment and he was fired as a consequence of being arrested and

charged. The Third Claimant attached a letter of employment from his former employees as

evidence in support of this.

58. He testified that as a consequence of the case he lost many friends as he was no longer

trusted and his reputation was damaged.

LAW

59. Damages in cases of malicious prosecution are awarded under three (3) heads:

(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.

60. To determine a just figure for malicious prosecution the following cases were considered:

Lewis v The Attorney General CV 2007-01952, a decision of Boodoosingh J,

delivered on the 2nd July, 2010. Awarded $75,000.00 for malicious prosecution and

$50,000.00 for unlawful detention (inclusive of an uplift for aggravating factors).

The claimant was arrested at 1:30 am, taken to a police station and detained for 18

hours in deplorable conditions. He was charged with using obscene language. The

charge was eventually dismissed. No award for exemplary damages was made. A

total of $125,000.00 was therefore awarded for malicious prosecution and unlawful

detention.

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Ricardo Watson v The Attorney General CV2006-01668 wherein the claimant

was charged with the offences, housebreaking and larceny and possession of

marijuana. Stollmeyer J (as he then was) on 31st July, 2008 awarded $35,000.00 as

general damages for malicious prosecution inclusive of aggravated damages.

Curtis Gabriel v The Attorney General HCAS-1452 of 2003 wherein the

Claimant was charged for armed robbery. He was acquitted but not before he had

spent 84 days in prison, 8 days prior to his appearance before a Magistrate, and 76

days thereafter after having been granted $100,000.00 in bail, due to his inability to

satisfy the conditions of bail. He alleges that he was assaulted by Officers in order to

extract a confession. He alleged that he was not promptly and with sufficient

particularity informed of the reason for his arrest or subsequent detention or false

imprisonment and that he was placed in a cell where he was subjected to filthy

conditions and assault and, in addition, was not provided with proper or adequate

food. Rajkumar J on 4th June, 2008 awarded $125,000.00 for malicious prosecution

inclusive of aggravated damages.

In Thadeus Clement v The Attorney General Civil Appeal No. 95of 2010,

Jamadar J.A., a case submitted by Counsel for the Defendant. The claimant was a

taxi driver plying the San Fernando to Siparia route for over twenty (20) years. On

the 23rd October, 2004, the claimant was changing the tyres on his motor vehicle in

the vicinity of the Siparia Market, when he was approached by four (4) uniformed

police officers who accused him of robbing someone. Despite protesting his

innocence, the claimant was handcuffed and thrown into a police vehicle and was

taken to the Siparia Police Station and then to the San Fernando Police Station. At

the Siparia Police Station, the claimant described being handcuffed for three (3)

hours without being informed of his right to retain a legal advisor. At the San

Fernando Police Station, the claimant was forced to sign a document under threat of

violence. The claimant was then charged with robbery contrary to Section 24 (1) (a)

of the Larceny Act. Subsequent to this charge, the claimant was kept in a cell at the

San Fernando Station until the 25th October, 2004. The claimant described the cell

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as being filthy and unsanitary and found the entire experience extremely

embarrassing. The claimant was awarded the sum of one hundred and sixty

thousand dollars ($160,000.00) for false imprisonment and malicious prosecution in

general damages.

61. The Third Claimant was arrested on the 15th

January 2004 and taken to the San Fernando

Police Station and placed in a cell with other prisoners. He claims that there was excretion

on the walls and that the cells were filthy. There is no direct evidence of his age at the time

but the endorsement of execution at the back of the warrant shows that he was eighteen

years old. He was taken to the Magistrate’s Court on the 16th

January 2004, some two days

after being taken into custody. Bail was then set. He however was unable to obtain the bail

so that he was taken to the Golden Grove Prison and placed in a cell with other remand

prisoners. He testified that he occupied a cell with some twenty inmates. This evidence is

quite believable as the overcrowding in our nation’s prisons, particularly at Remand yard

was even then a matter of public concern. He testified that he slept sitting at nights and the

cockroaches were so many that he had to place toilet paper in his ears and nose so that they

would not enter. After seventeen days, he was taken to the remand at the Port of Spain

Prison where conditions were worse. He was eventually released pursuant to the bail which

had been granted to him. He does not in his witness statement say when he was released.

62. However, the record of the Complaint attached to the Notes of evidence of the proceedings

at the Magistrate’s court show that on the 26th

January 2004, he was remanded bail as fixed

as opposed to remanded continuing bond. This demonstrates that he was still in the custody

of the state at that time. The matter was adjourned to the 3rd

February 2004. By that date he

had been released on bail as his lawyer tendered a medical certificate for his absence from

court. On the following occasion that the matter was called the record shows that he was

remanded continuing bond, which supports the fact that he would have been released on

bail sometime before the 3rd

February 2004. So that the court considers the period of

detention to be that of the 15th

January 2004 to the 26th January 2004 inclusive, some

twelve days.

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Aggravated Damages

63. Counsel for the defendant submitted in Thompson v Commissioner of Police of the

Metropolis [1998] QB 498 Lord Woolf MR in giving the judgment of the court said at

page 516,

“Such damages can be awarded where there are aggravating features

about the case which would result in the Plaintiff not receiving sufficient

compensation for the injury suffered if the award were restricted to a

basic award. Aggravating features can include humiliating circumstances

at the time of arrest or the prosecution which shows that they behaved in a

high handed, insulting, malicious or oppressive manner either in relation

to the arrest or imprisonment or in conducting the prosecution.”

64. Counsel further submitted that courts ought not to make any separate award for

aggravated damages it is rather an uplift of the award of general damages. Counsel

relied on the learning of de la Bastide CJ in the case of Bernard v Quashie Civil

Appeal No. 159 of 1992, where his Lordship stated:

“Under this head of what I have called “mental suffering” are included

such matters as the affront to the person’s dignity, the humiliation he has

suffered, the damage to his reputation and standing in the eyes of others

and matters of that sort. If the practice has developed of making a

separate award of aggravated damages, I think that practice should be

discontinued.”

65. Having regard to the evidence before the court and the award in similar cases the

court would therefore make an award of general damages in the sum of $125,000.00

inclusive of an uplift for aggravation.

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Exemplary Damages

66. Exemplary damages may be awarded where the case falls into one of the three

categories laid down by Lord Devlin in the case of Rookes v Barnard [1964] 1 All

ER 367. These three categories of cases are:

(i.) Cases of oppressive, arbitrary or unconstitutional action by the

servants of the Government;

(ii.) Cases where the defendant’s conduct has been calculated by him to

make a profit for himself which may well exceed the compensation

payable to the plaintiff; and

(iii.) Cases in which exemplary damages are expressly authorized by

statute.

His Lordship stated at page 1229:

“In a case in which exemplary damages are appropriate, a jury

should be directed that if, but only if, the sum which they have in

mind to award as compensation (which may of course be a sum

aggravated by the way in which the defendant has behaved to the

plaintiff) is inadequate to punish him for his outrageous conduct, to

mark their disapproval of such conduct and to deter him from

repeating it, then they can award some larger sum.”

67. Counsel also submitted that exemplary damages are only to be awarded if

compensatory damages are not sufficient and the learned authors of McGregor on

Damages 18th

edition at paragraph 11-033 the learned authors also stated:

“In so far as the object of exemplary damages is to punish, the calculation

of the amount to be awarded must clearly be based on criteria different

from those employed in the calculation of compensatory damages.”

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68. The court is of the view that this is not a suitable case for the award of exemplary damages

as the compensatory damages awarded are sufficient. Further, the court is not of the view

that the actions of Ghouralal were arbitrary, oppressive or unconstitutional.

69. As a consequence, the order of the court shall be as follows;

i. The Claims of the First and Second Claimants are dismissed.

ii. The Defendant shall pay to the Third Claimant special damages for

malicious prosecution in the sum of Eighteen Thousand, Four Hundred

and Eighty dollars ($18,480.00).

iii. The Defendant shall pay to the Third Claimant general damages for

malicious prosecution in the sum of One Hundred and Twenty-Five

Thousand dollars ($125,000.00), inclusive of an uplift for aggravation.

iv. The First and Second Claimants shall pay to the Defendant the

prescribed costs of the claim in the sum of Fourteen Thousand Dollars

($14,000.00).

v. The Defendant shall pay to the Third Claimant the prescribed costs of

the Claim in the sum of Thirty Thousand Five Hundred and Twenty-

two dollars ($30,522.00).

Dated the 2nd

day of October 2015

Ricky Rahim

Judge