the republic of trinidad and tobago in the high court...

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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.

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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

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“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.

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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.

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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

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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

the republic of trinidad and tobago in the high court...

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