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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
No. CV 2007-1747
BETWEEN
DEOSARAN PALAKDHARI
Claimant
AND
THE ATTORNEY GENERAL
Defendants
Before The Honourable Madam Justice Dean-Armorer
Mr. Ahmed for the Claimant
Ms. Jodhan for the Defendant
Introduction:
This was a claim for damages for malicious prosecution and wrongful arrest. The
Claimant, Deosaran Palakdhari, was arrested at his home by P.C. Gadar, a Police Officer
acting as agent of the State. In this case, the Court considered whether the action of the
arresting officer was hasty and premature, so as to negate the presence of reasonable and
probable cause for laying charges against the Claimant.
Facts:
1. In May 2003, the Claimant had been employed by Mr. Dhansam Dhansook and
Mr. Alvin Panalal as a watchman, to guard a drilling and seismic site in the
Ecclesville Forest, Rio Claro.
2. Mr. Dhansook and Mr. Panalal had been contracted to supply labour to the Tera
Seis Limited.
Page 2 of 21
3. The Claimant was required to guard drilling equipment, which had been left by
the crew overnight. He received wages of $110.00 per night and was paid by Mr.
Dhansook every Wednesday.
4. On the 14th May, 2003, after the Claimant had been employed for a period of two
months, his services were unexpectedly and unceremoniously terminated.
5. On the following day, 15th May, 2003, the Claimant visited Mr. Dhansook in the
hope of learning why his employment had been terminated. The Claimant’s
uncontradicted evidence was that he received no explanation from Mr. Dhansook.
Instead, Mr.Dhansook questioned the Claimant about a damaged Man Pump,
which had been burnt. The Claimant denied any knowledge of the damaged
pump.
6. On 16th May, 2003, the Claimant was arrested at his home by P.C. Ramnarine
Gadar No. 12843 and P.C. Navin Maraj. The Claimant alleged that a party of
police officers pounded on his door and upon entry cursed the Claimant and his
wife. P.C. Gadar denied that the pounding or the cursing ever occurred. His
testimony was unshaken in cross-examination and I accept Mr. Gadar’s word on
this issue.
7. The Claimant’s arrest was pursuant to three warrants, which were obtained by
P.C. Gadar following his swearing of Informations at the Rio Claro Magistrates
Court.
8. Later that night, the Claimant was charged with malicious damage to property and
possession of a firearm. He was placed in custody and detained for three nights
and two days until he was granted bail on 19th May, 2003.
9. After thirteen adjournments, all sought by the prosecution, the first offence of
malicious damage was dismissed on 28th April, 2005, after the prosecution
witness failed to appear. The second charge as to possession of a firearm was
Page 3 of 21
dismissed on 30th June, 2005, after the prosecution informed the Court that it
could not establish that the accused was in possession of a firearm within the
meaning of the Firearm Act.
10. In the defence of the Attorney General, the Defendant admits that P.C. Ramnarine
Gadar laid three Informations against the Claimant. The Attorney General denies
however that P.C. Gadar had been actuated by malice or that he lacked reasonable
and probable cause.
11. In support of the Attorney General’s denial of reasonable and probable cause,
P.C. Gadar, in his witness statement testified that, while on duty at the Rio Claro
Police Station he received a report from Dhansam Dhansook.
12. It was the uncontradicted evidence of P.C. Gadar that after having received the
report of Mr. Dhansook he left on enquiries to Ecclesville, Rio Claro. P.C. Gadar
testified that he took statements from Mr. Ramnarine Singh and Mr. Bickram
Ragoobar, both of whom were employed as watchmen with the Tera Seis
Trinidad Limited.
13. The statements from Mr. Ramnarine and Mr. Ragoobar, which had been recorded
by P.C. Gadar, were annexed to the Witness Statement of P.C. Gadar.
14. In the course of the hearing, learned Counsel Mr. Ahmed objected to the
admissibility of the statements of Mr. Ramnarine and Mr. Ragoobar, on the
ground that they constituted inadmissible hearsay.
15. This Court overruled the objection and held that the state of mind of the arresting
officer is relevant to the issue of whether or not the officer had reasonable and
probable cause to suspect that the arrested person was probably guilty of the
offence in question. The statements were admissible not for the truth of the
Page 4 of 21
contents of the statements, but for the fact that the statements were communicated
to P.C. Gadar as the prosecutor.
16. P.C. Gadar testified that Mr. Ramnarine Singh, by his statement, reported that the
Claimant accused him of making him (the Claimant) lose his job. Mr. Ramnarine
and Mr. Ragoobar also informed P.C. Gadar that the Claimant had a cutlass. Mr.
Ramnarine reported as well that they discovered the burnt and damaged
equipment. P.C. Gadar testified that Mr. Singh and Mr. Ragoobar showed him the
burnt equipment which included: 3 burnt water pumps, a burnt compressor, a
burnt drill and a quantity of chopped water and air hoses.
17. P.C. Gadar testified that based on the report of Mr. Ramnarine Singh and Bickram
Ragoobar, he walked along a line leading to the Ecclesville Forest, where he
observed a tree that was scorched as well as other damaged equipment. He later
observed a tractor with a carriage in tow. On the carriage he observed damaged
equipment, which was identified by Mr. Singh and Mr. Ragoobar as the
equipment in respect of which the report had been made.
18. P.C. Gadar deposed that he spoke to the two persons who were seated on the
tractor, that is to say Jimmy Ramos and Lincoln Duntin. From these two men,
P.C. Gadar received a report that the damaged equipment had been left in tact on
the night of May 14, 2003.
19. P.C. Gadar testified that he also interviewed Suresh Kissoon, who positively
identified the damaged goods as belonging to Tera Seis Limited.
20. At the beginning of the trial, learned attorneys for the Attorney General sought the
Court’s leave to rely on a Supplemental witness statement of P.C. Gadar. Leave
was sought pursuant to Part 29.8 of CPR 1998. Learned Counsel, Mr. Ahmed,
objected to the admissibility of the Supplemental witness statement on the ground
of the lateness of the application and the consequential prejudice that would
Page 5 of 21
accrue to the Claimant. The Court refused permission to use the Supplemental
witness statement.
21. Under cross-examination P.C. Gadar admitted that neither Suresh Kissoon nor
Ramos nor Duntin made any allegation against the Claimant. P.C. Gadar
admitted that neither Ramos nor Duntin linked the damage to the Claimant.
22. P.C. Gadar admitted as well that when he visited the two sites, he found no items
or equipment or cutlass belonging to the Claimant.
23. P.C. Gadar admitted further that according to his witness statement the only
reports, which linked the Claimant to the reported incident, were the reports of the
two watchmen, Mr. Ramnarine Singh and Bickram Ragoobar.
24. P.C. Gadar testified that he visited the Claimant’s home for the purpose of
interviewing him, but that he was unsuccessful because he was told by a young
lady that the Claimant was not at home.
Under cross-examination, it was suggested to P.C. Gadar that he never visited the
Claimant’s home. P.C. Gadar insisted that in fact he visited the Claimant’s home
on 15th May, 2003 and that he was told by a young lady that the Claimant was not
at home.
25. No issue is joined on the pleadings as to P.C. Gadar’s visit to the Claimant’s
home. However, in so far, as an issue appears to arise in cross-examination, the
Court reminds itself that in an action for malicious prosecution, the burden is
carried by the Claimant to prove an absence of reasonable and probable cause. In
so far as there are bald assertions on either side, it fell to the Claimant to redouble
his efforts to prove that P.C. Gadar never visited.
This may have been achieved, for example, by calling the Claimant’s daughter,
who, according to P.C. Gadar, reported that the Claimant was away from home.
Page 6 of 21
26. On the evidence before me, however, the Court is constrained to accept the
testimony of P.C. Gadar as unshaken by cross-examination that in the course of
his investigations he visited the Claimant’s home in order to interview him, but
was unable to do so because the Claimant was not at home.
27. This witness admitted that it was important to interview the Claimant, according
to him for the purpose of “fairness” but admitted that he made only one attempt
to visit him during the day on the 15th May, 2003 and that his visit on 16th May,
2003 was for the purpose of executing the warrants of arrest.
28. P.C. Gadar alluded to further efforts to find the Claimant. When asked in cross-
examination for details of his further efforts, P.C. Gadar stated that he spoke to
several unnamed persons by the Ecclesville Drive Structure. In my view, the
evidence of further efforts is both tenuous and improbable. I do not accept that
any further efforts were made by P.C. Gadar to interview the Claimant. His
efforts came to an end with his unsuccessful visit to the Claimants’ home.
Law:
1. In an action for malicious prosecution, the Claimant is required to show the
existence of four essential ingredients:
(a) that the law was set in motion against him on a charge for a criminal
offence;
(b) that he was acquitted of the charge or that it was otherwise determined
in his favour;
(c) that the prosecutor set the law in motion without reasonable and
probable cause;
Page 7 of 21
(d) that in setting the law in motion, the prosecutor was actuated by
malice.
See Wills v. Voisin (1963) 6 WIR 50 at 57A.
2. Reasonable and probable cause has been defined as:
“An honest belief in the guilt of the accused based on a full conviction
founded upon reasonable grounds, of the existence of a state of
circumstances, which assuming them to be true, would reasonably lead
any ordinarily prudent and cautious man, placed in the position of the
accuser, to the conclusion that the person charged was probably guilty of
the crime imputed.”
See Hicks v. Faulkner [1881-5] A.E.R. 187 at 191 B-C.
3. The burden of proving the absence of reasonable and probable cause in actions for
malicious prosecution is carried by the Claimant. See Hicks v. Faulkner.
It is generally accepted that factors and considerations that go to establish
reasonable and probable cause or conversely the want of it in an action for
malicious prosecution are substantially the same as those which to go prove or
disprove reasonable and probable cause in an action for wrongful arrest. See
Irish v. Barry (1965) 8 W.I.R. 177 per Mc Shine JA at 186.
4. At p. 192 B-C, Hawkins J continued:
“The question of reasonable and probable cause depends in all cases not
upon the actual existence, but upon the reasonable bona fide belief in the
existence of such a state of things as would amount to a justification of the
course pursued in making the accusation complained of. No matter
Page 8 of 21
whether the belief arises out of the recollection and memory of the
accuser, or out of information furnished to him by another. It is not
essential in any case that facts should be established proper and fit and
admissible as evidence to be submitted to the jury upon an issue as to the
actual guilt of the accused. The distinction between facts necessary to
establish actual guilt and those required to establish a reasonable bona
fide belief in guilt should never be lost sight of in considering such cases
as I am now discussing. Many facts admissible to prove the latter would
be wholly inadmissible to prove the former.”
5. Lord Denning in the case of Glinski v. Mc Iver (1962) A.C. 726 at 758, approved
the definition of Hawkins, J:
“In the first place, the word “guilty” is apt to be misleading. It suggests
that, in order to have reasonable and probable cause, a man who brings a
prosecution, be he a police officer or a private individual, must, at his
peril, believe in the guilt of the accused. That he must be sure of it, as a
jury must, before they convict. Whereas in truth he has only to be
satisfied that there is a proper case to lay before the court…. After all, he
cannot judge whether the witnesses are telling the truth. He cannot know
what defences the accused may set up. Guilt or innocence is for the
tribunal and not for him…. So also with a police officer. He is concerned
to bring to trial every man who should be put on trial, but he is not
concerned to convict him…. Were it otherwise, it would mean that every
acquittal would be a rebuff to the police officer. It would be a black mark
against him … No, the truth is that a police officer is only concerned to
see that there is a case proper to be laid before the court.
Next the word “honestly” may in some cases be misleading also. It
suggests that, in order to have reasonable and probable cause, a man who
brings a prosecution must bring to bear a fair and open mind before he
makes the charge. If this be so, then a belief which is distorted by malice
Page 9 of 21
or biased with an improper motive could hardly be said to be an honest
belief. That is why a jury, which has found “malice”, will very likely find
also “no honest belief.” To them it is the same thing. Yet we all know
that malice or improper motive is never a ground for saying there is no
reasonable or proper cause. In the words of Lord Mansfield: “From the
most express malice, the want of “ probable cause cannot be implied”:
See Johnstone v. Sutton1.”
6. In Dallison v. Caffery (1965) 1 Q.B. 348, Lord Denning M.R. at page 369 E-G of
the judgment held that positive identification of the suspect as the perpetrator of
the crime tended to prove reasonable and probable cause:
“The final point taken by Mr. Jukes was on the general question whether
there was any evidence on which the judge could find as he did that there
was reasonable and probable cause for the prosecution. He said he
should have found that there was a want of reasonable and probable
cause. I cannot accede to this suggestion. It seems to me that the
positive identification by Miss Phillips, coupled with the statement by
James Long (which I think can be taken into account, despite the fact that
he afterwards retracted it) and the phantom “Jock”, all show that Caffery
had reasonable and probable cause for the prosecution. True it is that
Dallison was innocent all the time. But that is no reason for making a
police officer liable when he has only done his duty in investigating the
crime …”
7. The House of Lords in O’Hara v. Chief Constable of the Royal Ulster
Constabulary (1997) 1 All.E.R. 129, discussed the requirements which comprise
‘reasonable grounds for the suspicion which the officer has formed’ and stated the
following at page 139 B-B. Per Lord Hope:
1 1 Term Rep 493, 545.
Page 10 of 21
“This means that the point does not depend upon whether the arresting
officer himself thought at that time that they were reasonable. The
question is whether a reasonable man would be of that opinion, having
regard to the information, which was in the mind of the arresting officer.
It is the arresting officer’s own account of the information which he had
which matter, not what was observed by or known to anyone else. The
information acted on by the arresting officer need not be based on his own
observations, as he is entitled to form a suspicion based on what he has
been told. His reasonable suspicion may be based on information, which
has been given to him anonymously, or it may be based on information,
perhaps in the course of an emergency, which turns out later to be wrong.
As it is the information which is in his mind alone which is relevant
however, it is not necessary to go on to prove what was known to his
informant or that any facts on which he based his suspicion were in fact
true. The question whether it provided reasonable grounds for the
suspicion depends on the source of his information and its context, seen in
the light of the whole surrounding circumstances.”
Malice
8. At page 67 B of the Wills v. Voisin2 judgment, Justice of Appeal Mc Shine stated
that:
“… malice and reasonable and probable cause must unite in order to
produce liability … malice, i.e., an improper motive the onus of proof of
which also rests on the plaintiff-respondent …”
Brown v Hawkes3
9. In Brown v. Hawkes at page 722 Cave J. attempted to define “malice” and stated
as follows:
2 (1963) 6 W.I.R. 50 3 (1891) 2 QB 718.
Page 11 of 21
“Now malice, in its widest and vaguest sense, has been said to mean any
wrong or indirect motive; and malice can be proved, either by shewing
what the motive was and that it was wrong, or by shewing that the
circumstances were such that the prosecution can only be accounted for
by imputing some wrong or indirect motive to the prosecutor. In this
case, I do not think that any particular wrong or indirect motive was
proved. It is said that the defendant was hasty and intemperate … He
may also have been hasty, both in his conclusion that the plaintiff was
guilty and in his proceedings; but hastiness in his conclusion as to the
plaintiff’s guilt, although it may account for his coming to a wrong
conclusion, does not shew the presence of any indirect motive …”
10. At page 723, Cave J. commented as follows:
“In this country we rely on private initiative in most cases for the
punishment of crime; and while, on the one hand, it is most important
firmly to restrain any attempt to make the criminal law serve the purposes
of personal spite or any other wrongful motive, on the other hand it is
equally important, in the interest of the public, that where a prosecutor
honestly believes in the guilt of the person he accuses, he should not be
mulcted in damages for acting on that belief except on clear proof, or at
all events reasonable suspicion, of the existence of some other motive than
a desire to bring to justice a person whom he honestly believes to be
guilty.”
11. At page 728, Lord Justice Kay stated as follows:
“As I understand the argument for the plaintiff, it was said that the
evidence to prove malice was that the defendant did not make proper
inquiry as to the facts of the case. If that is all, and if that evidence is
sufficient, the result would be that the finding on the first question put to
Page 12 of 21
the jury, that the defendant did not take proper care inquire into the facts
of the case, would, without more, determine the action in favour of the
plaintiff. That cannot be so and when I look at the evidence (as I have
done with care) to find what evidence there was of a sinister motive, I can
find none on which the jury could reasonably find that the defendant was
actuated by malice.”
Cecil Kennedy v. WPC Morris and or.4
12. In Kennedy v. Morris, a 2005 decision of the Court of Appeal, the Appellant had
been arrested by the first and second Respondents. The Appellant was charged
with assault occasioning actual bodily harm and appeared in the Tunapuna
Magistrates’ Court, to answer these charges, at least twenty times before the
charges were dismissed against him. He brought an action for malicious
prosecution, which was eventually dismissed
13. At paragraph 17, of his judgment, the learned Sharma JA (as he then was) cited
the case of Hicks v. Faulkner and relied on the definition of ‘reasonable and
probable cause’. The learned Appellate Judge noted that the absence of
reasonable and probable cause is a question to be determined by the judge.
14. At paragraph 20, Sharma JA referred to Chatfield v. Comerford (1866) 4 F&F
1008, where it was held that a prosecutor is entitled to act on reasonable hearsay
evidence. The learned Justice of Appeal referred as well to Lister v. Perryman
(1870) LR 4 HL 521, as providing authority for the proposition that:
“… any omission on the part of the prosecutor to sift information which
appears to be suspicious, may be evidence of the want of reasonable and
probable cause …”
4 CA 2257/1993.
Page 13 of 21
15. Later in his judgment, Justice of Appeal Sharma referred to Baptiste v. Seepersad
HC 367 of 2001, a case in which the accused went voluntarily to the police
station. He was merely told of the allegations against him. In Baptiste v.
Seepersad, it was held that the Defendants did not meet the test of reasonable and
probable cause.
16. The learned Justice of Appeal Sharma distinguished Baptiste v Seepersad from
the case before him. In Kennedy v Morris, the arresting officer had made several
unsuccessful attempts to contact the suspect before she eventually laid the charge.
In dismissing the appeal, Justice of Appeal Sharma held that the first respondent,
WPC. Morris had not arrested the appellant on mere suspicion. Sharma JA held:
“On the evidence, a report was made, the accused, after several attempts,
could not be contacted and the first defendant/respondent was therefore
entitled to act as she did …”
Irish v. Barry5
17. The case of Irish v. Barry is a decision of the Court of Appeal of Trinidad and
Tobago and is of considerable vintage, having been decided in 1965.
18. The well-known facts of that case sprung from the loss of a $5.00 note by a small
boy and to the subsequent arrest and prosecution of the Respondent for larceny of
the $5.00. Irish v. Barry, in spite of its age, is useful for the determination of the
instant matter, because it addresses the effect of hasty action on the part of an
arresting and a prosecuting officer on the presence or absence of reasonable and
probable cause.
19. At page 180 G of the case, Wooding C.J. stated as follows:
“The appellant acted on information received. He had no personal
knowledge of any of the relevant facts. It is therefore to inquire what
5 (1965) 8 W.I.R. 177
Page 14 of 21
information he had at the time, whether it was such as justified him in
giving it credit, and whether the suspicion which it aroused was a
reasonable suspicion … The decision whether a suspicion is such as will
justify effecting an arrest is sometimes a delicate one to make since, as
Lord Wright pointed out [1963] All ER at p. 613):
‘police officers, in determining whether or not to arrest, are not
finally to decide the guilt or innocence of the person arrested.
Their functions are not judicial, but ministerial, and it may well be
that if they hesitate too long when they have a proper and sufficient
ground of suspicion against an individual, they may lose an
opportunity of arresting him, because in many cases steps have to
be taken at once in order to preserve evidence. I am not saying
that as in any way justifying hasty or ill-advised conduct. Far
from that, but once there is what appears to be a reasonable
suspicion against a particular individual, the police officer is not
bound, as I understand that law, to hold his hand in order to make
further inquiries if all that is involved is to make assurance doubly
sure’.”
20. In the course of his decision Wooding CJ referred to the words of Scott LJ in
Dumbell v. Roberts [1944] 1 All ER 326:
“The principle of personal freedom that every man should be presumed
innocent until proven guilty applies also to the police function of arrest –
in a very modified degree it is true, but at least to the extent of requiring
them to be observant, receptive and open-minded, and to notice any
relevant circumstance which points either way, either to innocence or to
guilt. They may have to act on the spur of the moment and have no time
to reflect and bound there to arrest to prevent escape, but where there is
no danger of the person who has … aroused their suspicion, that he is an
Page 15 of 21
offender attempting to escape, they should make all presently practicable
inquiries from persons present or immediately accessible who are likely to
be able to answer their enquiries forthwith. I am not suggesting a duty on
the police to try to prove their innocence … but they should act on the
assumption that their prime facie suspicion may be ill-founded. The duty
attaches particularly where slight delay does not matter, because there is
no probability in the circumstances of the arrest … of the suspected
person running away … The duty attaches simply because of the double-
sided interest of the public in the liberty of the individual as well as in the
detection of crime …”
Damages:
1. Holison Stewart v the Attorney General of Trinidad and Tobago # 12165; PC
Carlos Carr: the Plaintiff claimed damages for assault, false imprisonment and
malicious prosecution. He succeeded in his claim for malicious prosecution only –
in part. The Court awarded damages in the sum of $15,000.00 and in so doing
took into account the Plaintiff’s success in proving only the claim for malicious
prosecution, albeit in part, and also the fact that he was deprived of his liberty for
2 days.
2. Anthony Sorzano and Steve Mitchell v The A.G and Dawson Victor HCA S. No.
46 of 1996, HCA No. 162 of 1996. Here the Court made an award for malicious
prosecution in the sum of $10,000.00. The Court took into account the fact that
the Plaintiff was never before arrested. The charges in this case were murder and
attempted murder.
3. Henry Jangoo v Estate Constable Noel Gomez and Port Authority of Trinidad
and Tobago HCA 2652 of 1978: general damages of $10,500.00 were awarded.
Page 16 of 21
Reasoning and Decision:
1. By his Claim Form and Statement of Case, the Claimant seeks damages for
wrongful arrest. It is well established as a matter of principle that an arrest is
justified when it is effected pursuant to a warrant. See Ragoobar Ramkissoon v.
P.C. No. 7924 Ramdath & Ors. HCA No. 3085 of 1976, where the Honourable
Justice Edoo (as he then was) said at p. 6:
“The question whether Ramdath had reasonable and probable cause for
the arrest of the plaintiff, does not … arise in a case where a warrant has
been issued … Where a valid warrant has been issued by a judicial
officer acting within his jurisdiction and it has been properly executed by
the officer of the law to whom it was entrusted, no liability in tort can
attach to such person in pursuance thereof …”
2. There was no dispute, in the instant case, that P.C. Gadar effected the Claimant’s
arrest pursuant to three warrants. I therefore hold that the arrest of the Claimant
was justified by virtue of the warrants and the claim for damages for wrongful
arrest is accordingly dismissed.
3. In respect of the action in malicious prosecution there is no dispute that the first
two elements of the tort are present in this case, that is to say that the law had
been set in motion against the Claimant and that the charge was determined in his
favour. The requisite elements are present in respect of both offences for which
the Claimant had been prosecuted, that is to say unlawful and malicious damage
to property and possession of a firearm.
4. It therefore falls to this Court to decide whether the Claimant has successfully
proved the absence of reasonable and probable cause on the part of the arresting
officer and whether the arresting officer had been actuated by malice.
Page 17 of 21
5. In so doing the Court is required to enquire whether the arresting officer held an
honest belief that the Claimant was probably guilty of the offence. The Court is
required to consider the information that was in the mind of the prosecuting
officer at the time that the charge was laid. In discerning the information in the
mind of the prosecuting officer, the Court is required to consider the officer’s own
account of the information which he had. See O’Hara v. Chief Constable of the
Royal Ulster Constabulary (1997) 1 All ER 129.
6. By his account, P.C. Gadar was seized of the following information:
(i) That there was a report of a malicious damage to property.
(ii) Having visited the work sites, P.C. Gadar was aware that equipment
had been damaged and that the damaged equipment belonged to Tera
Seis Limited.
(iii) By virtue of reports, P.C. Gadar had reason to believe that the damage
took place after the close of work on the 14th May, 2003 and before the
commencement of work on 15th May, 2003.
(iv) P.C. Gadar also had a report that the Claimant had been a watchman
with Tera Seis, that his employment had been terminated on 14th May,
2003 and that with cutlass in hand he vowed to “mess up everything
…”
(v) However, P.C. Gadar had no opportunity to hear what the Claimant
had to say in his own defence.
7. The Court is required to sift this information through the view of the ordinarily
prudent and cautious person. The Court is required to consider whether the
ordinarily prudent and cautious person would be led, by the information, to the
Page 18 of 21
conclusion that the Claimant was probably guilty of the offence for which he was
charged.
8. In so doing, the Court reminds itself that the officer who lays the charge was not
required to be convinced of the guilt of the Claimant, but only that he was
probably guilty.
9. In my view, the ordinarily prudent and cautious person would take into account
the reported threat, which the Claimant made on the 14th May 2003 that he would
“mess up everything”. In my view, the ordinarily cautious and prudent person
would be struck by how soon after the threat there was a discovery of damaged
equipment. The conjoint effect of these two factors coupled with the absence of
any other suspect would in my view lead the ordinarily prudent and cautious
person to the conclusion that the Claimant was probably guilty, of the offence of
unlawful and malicious damage to property.
10. There was no reason to believe that the reports were suspicious. The fact that the
equipment belonging to the company had been damaged was beyond challenge.
There was nothing in the evidence to suggest that the report of the Claimant’s co-
workers was suspicious, so as to require the officer to conduct further
investigations, as required by the case of Lister v. Perryman6.
11. P.C. Gadar may be faulted for omitting to renew his efforts to contact the
Claimant. In this regard, the Court has to decide whether P.C. Gadar acted too
hastily. In my view the words of Lord Wright in McArdle v Egan7, are applicable:
“As long as there is reasonable suspicion…the police officer is not
bound…to hold his hand…if all that is involved is to make assurance
doubly sure….”
6 (1870) LR 4 HL 521 7 [1933] All ER 611
Page 19 of 21
In my view, in the instant case, conducting an interview with the Claimant was as
P.C. Gadar said, for the purpose of being fair to him. One would expect that the
Claimant would have denied that he committed the offence and may also have
been able to provide an alibi. The duties of the arresting officer are, however,
ministerial and not judicial. P.C. Gadar could not decide on the guilt or innocence
of the Claimant and was entitled in my view to proceed to act on reasonable
suspicion.
12. Accordingly, I hold that in respect of the charge of unlawful and malicious
damage to property the Claimant has failed to prove the absence of reasonable
and probable cause. Where the absence of reasonable and probable cause is not
proved, the question of malice does not arise See Cecil Kennedy v. AG & Other8.
13. I now turn to consider whether P.C. Gadar had reasonable and probable cause to
suspect that the Claimant was guilty of the offence of unlawful possession of a
firearm.
14. The available evidence in respect of the second charge is altogether very different
from the evidence in respect of the first charge. P.C. Gadar’s witness statement,
as well as the statements on which he relied were devoid of any reference to
firearms.
The statements of Ramnarine Singh and Bickram Ragoobar, as well as those of
Suresh Kissoon, Jimmy Ramos and Lincoln Duntin contain no reference to the
use or presence of firearms.
15. On the information held by P.C. Gadar, according to the evidence, the ordinarily
prudent and cautious person would remark at the total absence of evidence
relating to the possession of a firearm and would decide against laying such a
charge.
8 CA 87/2004.
Page 20 of 21
Accordingly, it is my view and I hold that the Claimant has established an
absence of reasonable and probable cause to lay a charge for the possession of
firearm.
16. From the absence of reasonable and probable cause, the Court may infer the
presence of malice.
17. Learned Attorneys-at-Law for Defendant have argued in their written submissions
that a prosecution which has been laid pursuant to the instructions of a superior
officer cannot be infected with malice.
18. The available authorities suggest that a prosecuting officer will not be liable for
the tort of malicious prosecution where he lays all the facts of his case fairly
before counsel and acts bona fide on the opinion of counsel. See Ravenga v.
Mac Kintosh (1871), 2 BSC 541. Similarly, the fact that the advice of the
Director of Public Prosecution may have been sought is relevant but not
conclusive. See Clerk and Lindsell on Tort (18th
ed.) para 16-31.
19. In my view, the effect of the authorities is that the prosecutor’s reliance on the
advice or instructions of a competent authority will tend to negate the presence of
malice. However such reliance is not conclusive.
20. In the instant case there was no evidence whatsoever upon which P.C. Gadar
could found a belief in the probability of the Claimant’s guilt in respect of the
offence of the unlawful possession of firearms. There was some tenuous
material contained in the supplemental witness statement. The use of the
supplemental statement was not permitted because of its lateness. Accordingly,
the Court is unable to rely on any allegations contained therein.
21. In my view, in this situation, the Court may reasonably infer malice from the total
absence of reasonable and probable cause. The Claimant has succeeded in proving
Page 21 of 21
the presence of the four (4) ingredients of a successful claim in malicious
prosecution in respect of the charge of possession of a firearm.
22. Accordingly, it is my view and I so hold that the Defendant in this action is,
therefore, liable to the Claimant for malicious prosecution in respect of the
offence of the possession of firearm pursuant to s. 6 (1) of the Firearm Act.
Orders:
1. There will be judgment for the Claimant in respect of his claim for damages for
malicious prosecution arising out of a charge for the possession of a firearm
pursuant to s. 6(1) of the Firearm Act Ch. 16:01.
2. The Claimant’s claim for damages for false imprisonment and wrongful arrest is
dismissed.
3. The Defendant to pay the Claimant General Damages in the sum of $10, 000.00
and Special Damages in the sum of $10, 000.00.
4. The Defendant to pay to the Claimant one third of the costs of this action to be
quantified in default of agreement.
Dated the 25th of July, 2008.
………………………………..
Mira Dean-Armorer
Judge
Judicial Research Assistant: Renee McLean