IN THE HIGH COURT OF JUSTICE. THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE Claim No CV BETWEEN MARCUS SHAW Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr. Justice Robin N. Mohammed Appearances: Mr. Lee Merry for the Claimant Ms. Cherisse Nixon instructed by Ms Shanna Lutchmansingh for the Defendant JUDGMENT I. Background: [1] On the 7 th January, 2013, the Claimant was driving his Mazda BT-50 pick-up truck in a northerly direction in the left lane of the Diego Martin Main Road near the vicinity of the Victoria Gardens exit. Whilst in the usual after work traffic, he was stopped by police officers in a marked police vehicle who directed him to the Four Roads Police Station. At the station, the Claimant was charged and issued a ticket for the offence of Page 1 of 26

2 overtaking on the shoulder. The Claimant refused to pay the penalty and chose instead to plead his case before the Magistrate. He attended Court on several occasions however, the matter was eventually dismissed due to the non-appearance of the charging officer, Police Constable ( PC ) Cupid. The Claimant now claims damages for false imprisonment and malicious prosecution. [2] The Claimant s case is that he was in the left lane of traffic when he observed a vehicle to his left, on the shoulder, attempting to squeeze in front of him. The Claimant sought to prevent the vehicle from entering his lane by blocking it with his vehicle. At that point, the Claimant first realised that the vehicle to his left was actually a marked police vehicle. The Claimant saw three officers occupying the vehicle armed with machine guns and became anxious and frightened. The driver of the police vehicle was eventually able to bring the Claimant to a stop by angling the police car in front of the Claimant s car. The Claimant was then told by one of the officers to proceed to the Four Roads Police Station where he was charged and issued a ticket for overtaking on the shoulder. [3] The Defendant s case is that on the 7 th January, 2013, PC Cupid and PC Blackman were posted on static duty on the Diego Martin Main Road and observed the Claimant illegally driving on the shoulder. The officers put on their siren and proceeded to pursue the Claimant and were eventually able to bring him to a stop. PC Blackman then directed the Claimant to the Four Roads Police Station where PC Cupid lawfully charged and ticketed the Claimant for the offence of overtaking on the shoulder. II. Issues: [3] The issues for determination by the Court are as follows: 1. Whether the Claimant is entitled to damages for wrongful arrest and/or false imprisonment? The sub-issues which arise therefrom are: i. Was the Claimant arrested and/or imprisoned? and ii. If so, was the arrest/imprisonment lawful? Page 2 of 26

3 2. Whether the Claimant is entitled to damages for malicious prosecution? The sub-issues arising therefrom are: i. Was there reasonable and probable cause for the proceedings? ii. If not, was the proceedings instituted or carried out maliciously? 3. In the event that the Court finds in favour of the Claimant, should the Claimant be entitled to aggravated and/or exemplary damages? III. Law: False Imprisonment: [6] Clerk & Lindsell on Torts 1 sets out two components for the tort of false imprisonment: False imprisonment is the unlawful imposition of constraint on another s freedom of movement from a particular place. The tort is established on proof of (i) the fact of imprisonment; and (ii) the absence of lawful authority to justify that imprisonment. For these purposes, imprisonment is a complete deprivation of liberty for any time, however short, without lawful cause. It is established that mere constraint is sufficient: a prisoner need not be placed under lock and key for the purposes of this tort. It is enough that his movements are simply constrained at the will of another. The constraint may be actual physical force amounting to a battery or merely apprehension of such force, or it may be submission to a legal process. Any restraint within defined bounds which is a restraint in fact may be an imprisonment. 1 Para Page 3 of 26

4 If the arrest is unlawful it will amount to a false imprisonment: An unlawful arrest is a false imprisonment, and if the requirements of the law as to making it clear to the arrested person that he is under lawful arrest, or taking him before the appropriate authorities within a reasonable time are not complied with, an arrest which might otherwise be justified will be unlawful, grounding an action in false imprisonment. 2 Issue 1 (i): Was the Claimant arrested and/or imprisoned? [7] Counsel for the Claimant submitted that: i. It was an undisputed fact that PC Blackman directed the Claimant to proceed directly to the Four Roads Police Station. ii. As a result, the Claimant was under a compulsion to follow the officers to the Police Station and therefore his freedom of movement was constrained. [8] The Defendant s submissions on this issue were contradictory: i. At first it was submitted that the arrest and detention of the Claimant was not in dispute 3 in which case the burden shifts to the arresting officers to justify the imprisonment. ii. It was then submitted that the Claimant was sent to the police station for convenience so as to avoid obstructing the traffic and therefore suggesting that the Claimant was not arrested. [9] The law directs that when determining whether a Claimant was arrested, the form of words used by the arresting officer is paramount. If the form of words amounts to a command which would compel the Claimant, then it would amount to an arrest notwithstanding the fact that no physical force was used. As Lord Parker C.J. stated in Alderson v Booth (1969) QBD 271 at 273: 2 Para Para 14 of the Defendant s closing submissions. Page 4 of 26

5 There may be an arrest by words, by saying I arrest you without any touching, provided of course that the accused submits and goes with the police officer. Equally it is clear, as it seems to me that an arrest is constituted when any form of words is used which, in the circumstances of the case, were calculated to bring to the accused s notice, and did bring to the accused s notice, that he was under compulsion and thereafter he submitted to that compulsion. the words used here I shall have to ask you to come to the police station for further tests were, in their clear context, words of command which one would think would bring home to an accused that he was under compulsion. [10] In the instant matter, PC Blackman never gave evidence and so the Court is not privy to the exact words used to direct the Claimant to the police station. However, the Court has before it the Claimant s evidence that he was told to go directly to the police station and that he felt that he was under a compulsion to do so 4. The Court also notes PC Cupid s evidence, that he heard PC Blackman directing the Claimant to the Four Roads Police Station 5. It is therefore an undisputed fact that PC Blackman issued a command to the Claimant to proceed to the Four Roads Police Station. [11] Therefore, the Defendant s submission, that the purpose for directing the Claimant to the Police Station was to prevent the obstruction of traffic and as a result, it was not an arrest, is not persuasive. By directing the Claimant to the station, PC Blackman constrained the Claimant s freedom of movement for a period of time, which, in law, amounts to an arrest. It is therefore the Court s finding that the Claimant was indeed arrested. 4 Para 9 of the Claimant s witness statement. 5 Para 11 of the Defendant s witness statement. Page 5 of 26

6 Issue 1 (ii): Was the Claimant s arrest lawful? [12] According to Clerk and Lindsell (supra), the arrest must be unlawful for there to be a false imprisonment. The burden therefore now rests on the Defendant to justify the arrest of the Claimant. [13] Section 3(4) of the Criminal Law Act Chapter 10:04 ( CLA ) sets out the criteria for an unlawful arrest: Where a police officer, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence. The test inherent in section 3(4) of the CLA is, therefore, subjective because the arresting police officer must have formed a genuine suspicion in his own mind that the suspect has committed an offence. It is also partly objective since reasonable grounds for the suspicion is required by the arresting officer, which must be judged at the time the power of arrest was exercised. 6 [14] The Court is required to look at the evidence of PC Cupid in some detail to determine (i) what information he possessed at the time of the Claimant s arrest that would have led him to have a reasonable suspicion (subjective) and (ii) whether he could have reasonably been led to suspect that the Claimant committed an arrestable offence 7 (objective). Evidence of PC Cupid: [15] PC Cupid stated that he observed the Claimant s vehicle proceeding in a northerly direction on the shoulder of the Main Road passing several vehicles that were in the legitimate lanes. The Claimant then filtered back into the legitimate left lane of the Main Road. The Claimant then re-entered the shoulder lane a short distance after and passed PC Cupid s vehicle before merging back into the Main Road in the vicinity of Victoria Gardens where the shoulder ended. Under cross-examination, PC Cupid 6 Justice Margaret Mohammed in Fraser v The A.G. CV Justice Pemberton in Simon Fleming v The A.G. CV Page 6 of 26

7 maintained that the Claimant s van was in the shoulder lane when it passed in front of him. 8 He further stated that as far as he was concerned, he was entitled to stop the Claimant s car because he, PC Cupid, saw the Claimant overtaking on the left. 9 [16] The Claimant opposes PC Cupid s evidence on two grounds: (i) that the story is fabricated and that the Claimant was not overtaking on the shoulder, but rather he was arrested because he refused to let PC Cupid squeeze in front of him; and (ii) PC Cupid was not authorised to arrest him for such an offence under Section 93 MVRTA. [17] It is settled law that in cases that largely concern issues of fact which are disputed between the parties, the Court has to satisfy itself which version of events is more probable in light of the evidence. To do so, the Court is obliged to check the impression of the evidence of the witnesses on it against the: (i) contemporaneous documents; (ii) the pleaded case: and (iii) the inherent probability or improbability of the rival contentions (see Horace Reid v Dowling Charles and Percival Bain 10 cited by Rajnauth Lee J (as she then was) in Mc Claren v Daniel Dickey 11 ). As I analyse each of the three limbs set out in Reid supra, I bear in mind that the burden has now shifted to the Defendant to prove that the arrest and/or imprisonment of the Claimant was lawful. From the contemporaneous documents whose case seems more credible? [18] Counsel for the Claimant made reference to the Pocket Diary and the Station Diary extract as the material contemporaneous documents in the Claimant s case against the Defendant. He submitted that PC Cupid failed to make a proper entry into the Station Diary about the incident and that the Court should draw the inference that this failure is indicative of an attempt to cover up his improper conduct. Counsel also submitted that PC Cupid admitted, under cross-examination, to failing to make any record of the incident in his Pocket Diary as is required of police officers. 8 NOE page 75, line NOE page 82, lines Privy Council Appeal No. 36 of CV Page 7 of 26

8 [19] The Station Diary: Police conduct in this jurisdiction is governed by the Police Service Act as well as the Trinidad and Tobago Police Service Standing Orders (the Standing Orders ). The Court notes that while these Standing Orders are not part of the legislation, it does seem that police officers are bound to comply with them 12. Section 5(e) and Section 6 of Standing Order No. 17 of the Standing Orders require that details of the incident be recorded in the Station Diary: 5(e). In column 5 headed Nature of Record enter the nature of the report and details of the occurrences, observation or movements. 6. It shall be the duty of a police officer to enter the following in a station diary: i. Occurrences at a police station, branch or office; ii. The name and address of the informant and time, date and place of the incident reported including a brief detail of such incident; iii. The arrival and departure of any visitor, the civilian or police, the purpose of the visit and action taken or contemplated in connection with such visit. With respect to the details of the occurrences, observations or movements required under Column 5 of Section 5 (e), the Station Diary Extract merely states that the Claimant was issued a ticket for improperly overtaking on the left. I find this level of detail to be insufficient and not in compliance with what is required of a PC. [20] The Pocket Diary: The Court notes that section 6 of Standing Order No. 16 states that: 6. The Pocket Diary is the police officer s best safeguard against allegations of dishonesty and acting in bad faith when performing their duties. Therefore the officer shall i. Record therein all activities connected with the performance of his duties; 12 Paragraph 59 of Justice Devindra Rampersad s decision in Dillon Haynes v The A.G. CV Page 8 of 26

9 ii. Record any details of all reports made to him including the name and address of person(s) observations details of any investigations made and statements (where necessary) Section 9 of the Standing Order No. 16 states: 9. Police officers attending Court Orderly Room and Court shall take with them their official pocket diaries in which there are entries relating to the specific cases in which they have to give evidence. Pocket diaries shall be regarded as exhibits and will be available for reference or production to the Court and shall be kept until the expiration of such cases. Section 11 provides that the Pocket Diary should be kept for two (2) years after the date of completion or until any matters in connection with which there are entries in such pocket diaries have been completed in Court, whichever is the latter. At the expiration of that period, they may be destroyed. Accordingly, PC Cupid s Evidence under cross-examination that he didn t bring his 2013 pocket diary and that the pocket diary had a destruction date, thereby implying that his was destroyed 13, is not a persuasive argument to this Court. The Standing Orders clearly require PC Cupid to bring his pocket diary with him to Court and that it should not be destroyed within two years of its completion or until this Court matter has finished. These omissions and/or failures of PC Cupid to follow proper procedure and/or abide by the Standing Orders put his case in a negative light. [21] The Letter to the Police Complaints Authority: In opposition, the Defendant referred to certain omissions and/or inconsistencies contained in the Claimant s letter to the Police Complaints Authority ( PCA ), which, it was submitted, made the Claimant s case less credible, such as: (i) the failure to mention that PC Cupid mistook his car for a black Hilux; (ii) the failure to mention his fear and the length of time spent at the station; and (iii) the reference to the fact that the Claimant was unsure of whether he was issued the ticket because the officer mistook his vehicle for another or because the Claimant refused to let the officer squeeze in his lane. 13 NOE Page 97, Line 13- Page 99, Line 14. Page 9 of 26

10 When weighing the effect that these inconsistencies would have on the Claimant s case, the Court also considers the following matters: i. That, as admitted by the Claimant under re-examination, the letter to the PCA was written without legal advice 14 ; ii. Whether, in a letter such as this, the purpose of which is to prompt an investigation into police misconduct, references to the Claimant s fear and/or state of mind during the incident would be relevant; iii. Whether it is reasonable to expect the same level of detail and expertise in such a letter as compared to the pleadings and witness statement drafted by legal professionals for the Court. [22] On a reading of the letter to the PCA drafted on or around the 24 th January, 2013, it is clear that the Claimant drafted the letter in an attempt to state only the sober facts of the incident, which is an understandable position for a layman to take who is not aware of the law of damages and compensation and who is not seeking such from the PCA. Therefore, the absence of any references to the Claimant s feelings of fear or anxiety is understandable. [23] I do find it strange, however, that the Claimant failed to mention the issue of the black Hilux, especially in the second to last paragraph of the letter where he discusses his uncertainty as to whether the police officers mistook his vehicle for another vehicle overtaking on the shoulder. At this point it would have been sensible and relevant to include that PC Cupid mistook his car for a black Hilux. This omission, while noteworthy, must be considered along with the fact that the Claimant did not have legal advice when drafting the letter and therefore, this Court does not expect the level of detail to be the same as in his pleadings and evidence. [24] Therefore, I find that the omissions in the letter to the PCA did not justify an adverse inference from the Court. I therefore conclude that the contemporaneous documents suggest that the Claimant s version is more probable. 14 NOE Page 48, Line 32. Page 10 of 26

11 The inconsistencies in the pleaded case make the Claimant s case more probable: [25] At the outset, the Court notes that there were facts brought out in the evidence of PC Cupid that were not pleaded in the Defence. For instance: i. The Defendant never pleaded that the Claimant had entered the shoulder lane twice before the officers stopped him. ii. The Defendant pleaded that PC Cupid attempted to cut in front of the Claimant from the left. PC Cupid s evidence 15 was that he pulled up next to the Claimant s vehicle from the left to signal him to stop but eventually the officers had to manoeuvre their vehicle to the right where he angled in front of the Claimant s vehicle. Under cross-examination, PC Cupid admitted that his witness statement contradicted his pleadings in this regard 16. iii. The Defendant pleaded that PC Blackman spoke to the Claimant and directed him to the station. PC Cupid s evidence was that PC Blackman exited the vehicle on the Diego Martin Main Road when he directed the Claimant to the station. Under cross-examination, PC Cupid stated that PC Blackman directed the Claimant to the station from inside the police vehicle and never exited the vehicle until they reached the station. He then stated that his witness statement was wrong and that PC Blackman never exited the vehicle while on the Diego Martin Main Road 17. This apparent vacillation when giving his evidence was alarming to the Court. These were facts that were crucial to how the incident unfolded and showed that PC Cupid was either mixing up his facts or was not being forthright in his pleadings and evidence, both of which are adverse to his credibility as a witness. [26] On the other hand, I found that there were only two main discrepancies in the Claimant s pleaded case: (i) the fact that he mentioned for the first time in his witness statement the presence of his brother and business partner who was allegedly a few cars behind him in the same lane on the day; and (ii) that he stated for the first time in his witness statement that there were two reasons for his apology to the officers. 15 At para 9 & 10 of PC Cupid s witness statement. 16 NOE Page 82, line NOE Page 90, Line 25 to Page 92, Line 4. Page 11 of 26

12 [27] I find that the inconsistencies in the Claimant s pleadings and evidence were not fatal to his case for the following reasons: i. Firstly, the Claimant s brother did not give evidence and the Defendant failed to convince the Court that the Claimant s brother was in a position to witness the incident to have been of any assistance to the Court. ii. Secondly, the two reasons given for the apology in the witness statement did not add much to either party s case. They were not material facts but rather, were mere expressions of the Claimant s mind-set and/or opinion, which is not persuasive on the issue of liability. The contentions of the Claimant are more inherently probable: [28] It was submitted that this is the most important limb of the Reid factors. Counsel for the Defendant, in attempting to discharge its burden, submitted that the following evidence from the Claimant made his case highly improbable: i. That he was unable to recognise the marked Nissan X-Trail police vehicle even when it pulled up alongside his: The Claimant pleaded that he only realised the police vehicle after he moved up his truck to block them from entering. 18 This argument was maintained in his evidence 19. Counsel for the Defendant attempted to question the Claimant heavily about his inability to recognise the police vehicle earlier but the Claimant was unshaken in his answers and maintained that he only saw the police vehicle at a glance and did not recognise it until he moved his vehicle forward to block it 20. There was no evidence to convince the Court that the Claimant, who was focusing on the traffic in front of him, should have been able to recognise a police vehicle trying to overtake from the shoulder from a mere glance. I do not find anything improbable about this evidence. 18 Para 4 of Statement of Case. 19 Para 7 of Claimant s witness statement. 20 NOE Page 8, Line 7 to Page 10, Line 10. Page 12 of 26

13 ii. That he was not aware that police officers use the shoulder lane as a matter of course: Under cross-examination, Counsel for the Defendant probed the Claimant on this evidence and the Claimant admitted that while he has seen police vehicles driving on the shoulder in the past, he was not aware that this was permissible 21. While it may appear improbable that a driver of some 23 years experience would not know that police vehicles are allowed to drive on the shoulder, this improbability only becomes relevant if it shows that the Claimant should have recognized the police vehicle earlier than he claims he did. However, I am not convinced that such an inference arises based on my analysis in (i) above. iii. That despite his fear and anxiety, the Claimant failed to call his brother to: (i) accompany him to the police station when he was first directed there; and to (ii) support his case in the Magistrate s Court or High Court proceedings: As stated above, the Defendant has failed to show that the Claimant s brother was in a position to witness the incident and therefore that he would have been of assistance to either the Magistrate or the trial Judge. Under cross-examination, the Claimant stated that he left his cell in the car when he was in the station building and therefore did not call his brother 22. This evidence was not challenged nor was he probed further on this issue. iii. That he failed to hire an attorney for the Magistrate s Court proceedings despite his alleged fear for his reputation and sleepless nights: Under cross-examination, the Claimant admitted that despite the fact that it was a nerve wracking experience and that he feared possible conviction, he did not hire an attorney nor did he seek legal advice for the proceedings at the Magistrate s Court 23. The Claimant was never asked why he did not hire an attorney so the Court cannot speculate on his failure to do so. Further, considering that this was a 21 NOE Page 17, Lines NOE Page 16, Lines and Page 18, Line NOE Page 34, Lines Page 13 of 26

14 fairly minor traffic offence, it is not improbable for the Claimant to represent himself at the Magistrate s Court level. Indeed, this is not an uncommon occurrence. iv. That he had an important workday related meeting on the same day that his matter was listed in the Magistrate s Court; and that the Court adjourned the matter on the day that PC Cupid was present in the Magistrate s Court: Counsel for the Defendant submitted that this evidence shows that the Claimant did not feel a sense of urgency about this matter despite his claims of anxiety, stress and mental anguish. As concluded in (iii) above, I do not find this submission persuasive. Further, this evidence relates more to the issue of damages. v. That he chose not to follow up on his complaint with the PCA: Under cross-examination, the Claimant admitted that the PCA acknowledged receipt of his letter and informed him that the PCA would be addressing the issue to the Police Complaints Division and left him two (2) numbers so that the Claimant could contact that Division to follow up. The Claimant also admitted that there is no evidence to suggest that he followed up with the Police Complaints Division. He further admitted that he felt strongly about what had occurred 24. I find that there is little that the Court can take from this in support of the Defendant s case. The Claimant was not asked whether he actually did follow up with the PCA despite the lack of evidence to prove it. Further, considering that the Claimant has spent resources to retain counsel and bring a claim before the High Court, is evidence that he does feel strongly about the incident. [29] In opposition, I find that the following evidence given under cross-examination by PC Cupid to be inherently improbable: 24 NOE Page 32, Line 25 to Page 33, Line 3. Page 14 of 26

15 i. That despite the fact that a lot of persons were reported to be driving on the shoulder in that area during peak traffic times, not one other person did so between 3:50 pm and 4:50 pm 25. ii. That the Inspector of Police would issue a directive that all offences are to be ignored except for driving on the shoulder 26. iii. That PC Cupid would operate a static duty where every time someone commits an offence the officers have to enter their vehicle, turn on their siren, give chase, issue a ticket and then return to their static duty position 27. i. That when police officers fire up their siren and pursue a vehicle and the vehicle fails to stop causing the police to have to cut in front the vehicle to get it to stop, that in those circumstances, PCs Cupid and Blackman would not feel compelled to search the Claimant s vehicle, check to see if the Claimant has an outstanding warrant for arrest 28, or charge the Claimant for failing to stop 29 ; These improbabilities lead me to conclude that: (i) PCs Cupid and Blackman were not on static duty that day; and (ii) the officers never put on their siren or pursued the Claimant. [30] Given the improbable contentions in the Defendant s case, I find that the Defendant has failed to discharge its burden to prove that the arrest was lawful. The evidence of the witnesses when compared to the contemporaneous documents, the pleaded case and the inherent probability of the rival contentions all weigh in favour of the Claimant s case being more probable. Accordingly, I find that the Claimant is entitled to damages for False Imprisonment. 25 NOE Page 67, Line NOE Page 70, Line NOE Page 76, Line NOE Page 74, Lines 33- Page 75, Line NOE Page 73, Lines 25- Page 74, Line 6. Page 15 of 26

16 Issue 2: Malicious Prosecution: The Court finds that PC Cupid lacked reasonable and probable cause for initiating the proceedings: [31] The case of Cecil Kennedy v Donna Morris & The A.G. Civ App No. 87 of 2004 sets out the criteria for the tort of malicious prosecution as follows: To succeed in an action for damages for malicious prosecution a plaintiff must prove: i. The prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the criminal courts are competent to enquire; ii. That the proceedings complained of were terminated in the plaintiff s favour; iii. That the defendant instituted or carried on the proceedings maliciously; iv. That there was an absence of reasonable and probable cause for the proceedings; and v. That the plaintiff suffered damage. [32] Hicks v Faulkner (1878) 8 QBD 167 at 171 defined reasonable and probable cause as: an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. [33] The question of whether or not there was reasonable and probable cause for a prosecution is one of fact. It is to be determined objectively and subjectively, that is Page 16 of 26

17 to say: objectively, whether a reasonable man having knowledge of facts that the defendant knew at the time he instituted the prosecution, would have believed that the Claimant was guilty of the alleged crime and subjectively, whether the defendant who laid the charge or carried on the proceedings honestly believed that the plaintiff was guilty. What the defendant believes must be based upon facts known to him, at the time that he initiated the prosecution 30. [34] Having found that the arrest of the Claimant was unlawful, the Court has found that the Defendant s case was fabricated against the Claimant based on a motive to exact revenge for the Claimant s refusal to allow the police officers to squeeze in front of him. Considering these findings, the Court concludes that PC Cupid lacked reasonable and probable cause to charge the Claimant. The Court finds that the charges were laid against the Claimant maliciously: [35] It is settled law that a claimant who alleges malicious prosecution has the burden of proving, not only that the prosecutor lacked reasonable and probable cause, but also that he was actuated either by spite or ill-will against the Claimant or by indirect or improper motive. The absence of reasonable and probable cause is generally a good indication that the prosecutor had no proper motive but it is not conclusive evidence of malice in every case. If the prosecutor does not believe in the merits of the case that he has brought against the accused that will be strong evidence of malice. [36] In Browne v. Hawkes (1891) 2 QB 718 at 722, Cave J. stated as follows: Now malice, 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 30 O Hara v. Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129 at 138; Mario Richards v. The Attorney General CV , at pp Page 17 of 26

18 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 that presence of an indirect motive [37] In Manzano v The A.G. Civ Appeal No. 151 of 2011, Mendonca JA stated that: even if a Claimant cannot affirmatively establish spite or ill-will or some other improper motive, he may still succeed in establishing malice if he can show an absence of proper motive. Mendonca JA continued at paragraph 48: for example if the Plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. It therefore should be a question of degree whether malice should be inferred from the absence of reasonable and probable cause. If the prosecution was launched on obviously insufficient material that may suffice to support the inference of malice. In coming to his decision, Mendonca JA stated at paragraph 53 that: In any event there was an absence of an honest belief in Constable Adams that there was a case fit to be tried. In my judgment this provides strong evidence of the absence of proper motive sufficient to infer malice. [38] Based on the findings above, the Court holds that the prosecution was initiated maliciously based on: (i) the fact that the charge was laid on obviously insufficient evidence; and (ii) the charge was laid out of revenge. I therefore find that the Claimant is entitled to damages for malicious prosecution. Page 18 of 26

19 Issue 3: Damages: Has the Claimant specifically proved his special damages? [39] It is trite law that special damages must be specifically pleaded and proved 31. The Claimant pleaded that he earned a monthly salary of $11, from his business and that he lost approximately 12 hours of time amounting to a loss of $ He further pleaded that he incurred travel expenses to and from Court amounting to $ In support, he adduced into evidence a copy of his pay slip which evidenced a pre-deduction monthly salary of $11, There were no other documents adduced to establish: (i) the nature of his business, i.e. whether he receives a fixed monthly salary and therefore gets paid regardless of the hours spent away from work, or if he is paid on an hourly basis or based on the amount of work done; (ii) that he indeed spent 12 hours away from work as a result of having to attend the Magistrate s Court; and (iii) evidence by way of receipts for the expenditure on gas, assuming he used his vehicle to travel to Court. Considering these gaps in evidence, I do not find that the Claimant has specifically proved his special damages. For how long was the Claimant detained? [40] The period of time for which the Claimant was detained is in dispute. The Claimant alleges it was 30 minutes while the Defendant alleges it did not exceed 10 minutes. The Defendant s case is supported by the fact that on the Fixed Penalty Notice, it states that the incident occurred at 4:50 pm and the Claimant was given the ticket at 5:00 pm 32. [41] It is settled law that the false imprisonment would have begun from the time the Claimant was directed by PC Blackman to proceed to the Four Roads Police Station up until the time the Claimant left the Station after being issued the ticket. [42] On the Defendant s version, PC Cupid s evidence was that PC Blackman exited the vehicle and directed the Claimant to the Station and that both vehicles were located 31 Halsbury s Laws of England. Damages Vol. 29 (2014). 32 See Notice of Opportunity to Pay Fixed Penalty attached to Claimant s witness statement as MS.1. Page 19 of 26

20 near to the entrance of the Four Roads Station 33. The Claimant then drove to the station followed by the police and we all entered [the building] together. The Claimant was then informed of the offence and proceeded to offer an apology. Thereafter, the Claimant got into an argument with PC Blackman. PC Cupid then asked for the Claimant s driver s permit and certificate of insurance and the Claimant retrieved and presented to PC Cupid the requested documents. PC Cupid took the documents, wrote the ticket and then returned the documents to the Claimant along with the ticket and again informed the Claimant of the offence. Afterwards, the Claimant left the station. [43] Counsel for the Claimant did not cross-question PC Cupid heavily about the time the Claimant spent in the station. However, he made heavy weather of the fact that PC Cupid failed to record the time of arrival and departure of the Claimant in the Station Diary as required by the Standing Orders. [44] Given the evidence as adduced by PC Cupid, I am of the opinion that the Claimant s false imprisonment would have lasted for more than 10 minutes on the most conservative assessment by this Court based on the following: i. PC Blackman exited his vehicle to direct the Claimant to the station which means he would have had to re-enter his vehicle before proceeding to the Four Roads Station. The Court estimates that, given the heavy traffic on the road along with the proximity of the Four Roads Station to the incident, it would have taken at least 5 minutes from the time PC Blackman exited his vehicle to direct the Claimant to the station up until they all arrived at the station. ii. The parties entered the police building together. The Court estimates at least 1 minute for the vehicles to park, the parties to exit their vehicles and then enter the building. iii. PC Cupid then informs the Claimant of the offence. The Claimant then offers an apology. The Claimant then gets into an argument with PC Blackman where he 33 Para 11 of PC Cupid s witness statement. Page 20 of 26

21 denied the offence. No evidence is given as to the length of time of this argument but the Court estimates at least another 5 minutes for the above events. iv. It is likely that the Claimant would have had to return to his vehicle to get his certificate of insurance as requested by PC Cupid especially given the fact that the Claimant was first informed of the offence inside the building. The Court estimates another 2 minutes for the Claimant to return to his vehicle, find his certificate of insurance and return to the building to give it to PC Cupid. v. PC Cupid would then have to peruse the documents, write the ticket and return the documents to the Claimant. The Court estimates at least another 5 minutes to complete this procedure. [45] The Court therefore estimates a total of at least 18 minutes of detention. [46] Counsel for the Defendant submitted the case of Mahadeo Sookhai v The A.G. CV where the Court awarded $6, for 30-minute period of detention. [47] In opposition Counsel for the Claimant submitted the case of Julio Ready v A.G. CA No. 167 of 2009 where an award of damages in the amount of $10, was given for 2 minutes detention. The Court of Appeal increased the award to $40, It is noted in Ready, that the Court of Appeal increased the damages because it found that the trial Judge did not take into account the aggravating factors, which included the fact that a young child was placed in a cage by a police officer for the purpose of being photographed by the Press in the presence of several strangers. 34 In that case, the child was merely 4 years old. In any event, Smith J.A. disagreed with the increased award given by the Court of Appeal and thought that a more appropriate award would have been $20,000.00, even factoring that it was a case involving a young child. 34 At page 2. Page 21 of 26

22 [48] I find that the facts in Mahadeo is most analogous to the instant case. Justice Moosai, (as he then was) at paragraph 53 of the judgment, noted the following in his conclusion on the issue of false imprisonment: In the instant case, the Claimant was expressly informed that he was under arrest prior to the assault. After the assault, he was told to get inside the vehicle because he was under arrest. After attempting to get into the vehicle, he was then commanded to walk to the station, but collapsed on the way. It is clear that the Claimant was completely deprived of his liberty for approximately half-an-hour without lawful cause, and that the Defendant would be liable for the tort of false imprisonment. Having regard to the passage of time since the decision in Mahadeo, a slightly higher award than the $6,000 is justified. Accordingly, I find an appropriate award for at least 18 minutes of detention to be no more than $10, in general damages inclusive of aggravated damages for false imprisonment. The matter involved a minor traffic offence but the Claimant was of good character: [49] In assessing the damages for malicious prosecution, the Court notes the learning from the Board of the Judicial Committee of the Privy Council, which examined damage to reputation in the case of Terrence Calix v The Attorney General (2013) UKPC 15. In Terrence, the Privy Council attempted to distinguish an appellant s low standing in life, or one s oddity of personality and/or eccentricity from good character by stating that the fact that a person chooses to live a certain way or occupies a low standing in life does not mean his damage to reputation should be reduced. What is of utmost importance is whether the appellant was of good character and the seriousness of the crime. At paragraph 16, the Board cited with approval the following passage from the authors of Clayton and Tomlinson on Civil Actions against the Police 3rd edition at paragraph : The seriousness of the offence for which the claimant was prosecuted should be considered. The more serious the offence the greater the damage to the claimant s reputation. Thus, for example, accusations such as Page 22 of 26

23 dishonesty or sexual misconduct will cause more damage than accusations of minor public order offences or assaults. A money figure should be placed on this reputation damage. The award should be increased if the prosecution received wide publicity. The claimant s reputation should then be considered. If he is of good character then the loss of reputation and sum should not be reduced. If, on the other hand, he has previous convictions then there will be reductions in his loss of reputation damages. In this light, the Court takes into account that the instant matter involves a very minor traffic offence and that there is no evidence that the matter attracted wide publicity. However, there is no evidence that the Claimant had previous convictions and therefore, I conclude that he was a man of good character. [50] The most suitable case submitted by Counsel for the Claimant was Imran Khan v The A.G. CV where an award of $75, for damages including aggravated damages was given where the Claimant was maliciously prosecuted for two (2) offences: (i) that the vehicle driven by the claimant was being used contrary to the insurance certificate in breach of Regulation 8 of the Motor Vehicle and Road Traffic Act; and (ii) for allowing his vehicle to stand on the road so as to cause unnecessary obstruction. I find that the first offence in Khan was more serious than in the instant case as it was alleged that the officer in Khan was attempting to use his police vehicle as a taxi. Secondly, the award given in Khan was given for two offences whereas in the instant case there was only one offence. I also find that unlike Khan, the aggravated damages in this case are minimal. I do not find that the Claimant has proven significant damage to his dignity, humiliation or the damage to his reputation and standing in the eyes of others that resulted from having to attend proceedings in the Magistrate s Court. He has given no evidence of which clientele would have seen him in Court and/or how this charge has adversely affected his reputation or his business. Page 23 of 26

24 Accordingly, I award the amount of $50, in general damages inclusive of aggravated damages for malicious prosecution. Exemplary damages: [51] I am also of the view that this is an appropriate case for the award of exemplary damages for the oppressive, arbitrary or unconstitutional action by the servants of the State. The outrageous conduct on the part of PC Cupid and Blackman is deserving of public condemnation and excoriation. The central requirement for exemplary damages has always been the presence of outrageous conduct disclosing malice, fraud, insolence, cruelty and the like 35. [52] The Claimant claimed that he is entitled to exemplary damages for the following reasons: i. The Claimant was detained on a busy roadway in full view of members of the public; ii. The police officers caused traffic on a busy roadway to come to a standstill as a result of their unlawful actions; iii. The charges against the Claimant were completely fabricated; iv. PC Cupid charged the Claimant for the very offence that PC Cupid had committed while driving a marked police vehicle and while dressed in police uniform; v. The police action outlined above was oppressive, arbitrary and unconstitutional. Considering that the Court has found that PCs Cupid and Blackman fabricated the case against the Claimant, I am of the opinion that this is a serious abuse of authority and on this ground alone, the only safeguard against such arbitrary and oppressive police behaviour is the Court s willingness to expose such behaviour and uphold the rights of citizens. As noted by the Honourable de la Bastide C.J. in Bernard v Quashie, the function of exemplary damages is not to compensate but to deter. 35 McGregor on Damages at para 447. Page 24 of 26

25 [53] Rajkumar J (as he then was) noted in the case of Mustpaha Ghanny v The A.G CV at para 114 that it is the court s duty to set an award of exemplary damages in an amount that may give pause to officers contemplating such abuse in future, and to their employers who do not take steps to hold such officers accountable. [54] I find that the facts in the case of Marvin Johnson v The A.G CV are most analogous to the instant case. In Johnson, Rampersad J, made an award for exemplary damages in the amount of $45, This case similarly concerned police officers fabricating evidence against a claimant. Justice Rampersad stated at paragraph 95: In this case, this court noted that the Claimant was, for some inexplicable reason, made the target of a deliberate attempt to fabricate evidence against him and to tarnish his reputation. This court deprecates this behaviour by the officers involved and wishes to award for exemplary damages to deter the recurrence of such behaviour. To this court, it is unacceptable for the officers to hide behind the allegations of the alleged loss of the Station Diary and of their personal diaries and to come to court and to also allege the loss of the prosecution file containing the alleged written confession and yet subject the claimant to the added burden of going through the civil case notwithstanding the fact that not one shred of real evidence could be relied upon or produced by the officer to vindicate his decision to bring the charges against the Claimant. The retention and maintenance of official records such as the diaries of officers who are under a duty to make a contemporaneous record of their activities and station diaries and prosecution files, to my mind be seen as a serious duty imposed upon the police service in order to ensure transparency and preserve public trust in the police service. When all written contemporaneous records mysteriously disappear as in this case, serious questions as to the bona fides of the parties involved arise and, to my mind, need to be investigated. (Emphasis mine) Page 25 of 26

26 In those circumstances, the court awards the sum of forty five thousand dollars as exemplary damages. Pursuant to the similarities in Johnson, I similarly award $45, in exemplary damages against the Defendant. IV. Disposition: [52] In light of the above analyses and findings, and having reviewed the authorities, I have concluded that the Claimant s arrest and detention were unjustified and that his prosecution was indeed malicious. Consequently, I hold that the Claimant is entitled to an award of damages inclusive of aggravated and exemplary damages for wrongful arrest/false imprisonment and malicious prosecution. [53] Accordingly, I give the following awards in damages to the Claimant: i. General & aggravated damages for false imprisonment: $10, ii. General & aggravated damages for malicious prosecution: $50, iii. Exemplary damages for false imprisonment and malicious prosecution: $45, iv. Costs of the Claim to be paid by the Defendant to the Claimant quantified on the prescribed scale of costs in the sum of $24, v. Stay of execution for 28 days. Dated this 7 th day of March, 2017 Robin N. Mohammed Judge Page 26 of 26