IN THE HIGH COURT OF JUSTICE BETWEEN AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO AND BETWEEN AND

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO CV IN THE HIGH COURT OF JUSTICE BETWEEN RICHARD CAESAR Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant AND CV BETWEEN OSA CHIMA Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant (Consolidated on the 30 th October 2017 by the Honourable Madam Justice Margaret Y. Mohammed) Before the Honourable Madame Justice Margaret Y. Mohammed Dated the 7 th 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. Page 1 of 40

2 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 20 th February On the 30 th 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 1 st February 2010 from around 12:44 p.m to 6:00 p.m as well as Saturday 20 th February 2010 from around 2:30 a.m to the 23 rd February 2010 around 3:00 p.m. In relation to his arrest on the 1 st 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 8 th February The Second Claimant claimed that on Saturday 20 th February 2010 from around 2:30 a.m to the 23 rd February 2010 around 3:00p.m., he was wrongfully arrested. Page 2 of 40

3 4. The incident which gave rise to the Claimants claims occurred on Saturday 20 th 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 19 th 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 Page 3 of 40

4 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 23 rd February 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 30 th October 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, which included: (a) the cost of defence at the Magistrate s court in the sum of $15, and (b) cost of travelling in the sum of $ 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 Page 4 of 40

5 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 19 th 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 20 th 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 Page 5 of 40

6 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 23 rd February 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 Act 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 Page 6 of 40

7 improbability of the rival contentions. (Horace Reid v Dowling Charles and Percival Bain 2 cited by Rajnauth-Lee J (as she then was) in Winston Mc Laren v Daniel Dickey 3 ). 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 1 st 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 20 th February, 2010 from around 2:30 a.m. to the 23 rd 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 CV Page 7 of 40

8 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 1 st February, 2010 from around 12:44 p.m. to around 6:00 p.m. on the same day and on Saturday the 20 th February, 2010 from around 2:30 a.m. to the 23 rd February, 2010 around 3:00 p.m. The Second Claimant pleaded that he was wrongfully arrested and detained only for the period Saturday the 20 th February, 2010 from around 2:30 a.m. to the 23 rd February, 2010 around 3:00 p.m. 22. Both Claimants pleaded that they were assaulted and beaten during the period Saturday the 20 th February, 2010 from around 2:30 a.m. to the 23 rd 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 Page 8 of 40

9 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. Page 9 of 40

10 29. The essential ingredients for a malicious prosecution claim as set out in Clerk & Lindsell on Torts 4 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 Tobago 5 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 20 th ed. At page 1070, para 16:09 5 H.C.A. No of 1989 Page 10 of 40

11 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 Smith 6 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 Tobago 7 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 [2014] UKPC 29 Page 11 of 40

12 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 30 th October 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. Page 12 of 40

13 The Offences 35. Both Claimants were charged under section 6 (1) of the Firearms Act 8 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 Act 9 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 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 Page 13 of 40

14 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 information 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 Page 14 of 40

15 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 19 th 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 19 th February 2010 so he suggested to the Second Claimant to stay the night since taxis did not work late in that area. On Saturday 20 th 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 Page 15 of 40

16 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 19 th 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 20 th 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. Page 16 of 40

17 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 Garcia 11, took the position that any deviation by a Claimant from his pleaded case immediately calls his credibility into question. 51. The unshaken evidence from the Claimants was consistent with their pleaded case which was that the officers did not read or show them any search warrant. I found the Claimants evidence on this issue to be credible. 52. The Defendant s case was that based on information which the police had received from an informant, PC Beepat obtained a search warrant for the First Claimant s premises. To support this case the Defendant relied on the evidence of PC Ramdial who filed two 11 Civ. App. No. 86 of 2011 at paragraph 31 Page 17 of 40

18 witnesses statements, one on the 30 th June 2017 ( the June witness statement ) in the Second Claimant s matter and the second filed on the 27 th October 2017 ( the October witness statement ) in the First Claimant s matter. According to PC Ramdial on the 19 th 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 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 crossexamination 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 27 th October 2017 Page 18 of 40

19 in the instant matter can be distinguished from the case of Wisniewski v Central Manchester Health Authority 13 which establishes the test which the Court is to apply in drawing adverse inferences due to the failure by a party to call a witness. The Defendant submitted that based on the Defence both PC Beepat and PC Ramdial were involved in receiving the information from the informant and in the execution of the search warrant. 56. Wisniewski deals with the inferences a Court can make where there is a failure of a party to provide evidence. In Wisniewski the Court concluded the following: From this line of authority I derive the following principles in the context of the present case: (1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. (2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. (3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue. (4) If the reason for the witness's absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified. 13 [1998]Lloyd s Rep Med 223 Page 19 of 40

20 57. I agree with the Defendant s submission that based on the facts in the instant case the Court ought not to draw an adverse inference by PC Beepat s failure to attend the trial since Counsel for the Defendant indicated that PC Beepat went on vacation and he failed to return to work after vacation and that there was another witness, namely PC Ramdial, which was being relied on. I also agree with the submission by the Defendant that on public policy grounds the Defendant was not obliged to produce the police informant in matters such as this. 58. However, in this case, the Claimants asserted that no report was made to the police from any informant and that there was no search warrant. By doing so, the burden was shifted to the Defendant to prove that there was such a report and there was a search warrant. There was no duty on the Claimants to produce any witnesses such as a Justice of the Peace to prove the search warrant since their case was that there was none. The Claimants cannot prove a negative. The onus was on the Defendant to prove the positive since it was the Defendant who asserted that there was information from an informant which led to the search warrant. 59. In my opinion, based on the contradiction between the two witness statements from PC Ramdial, the credibility of his evidence that there was an informant who brought the information to the police was undermined. Therefore the evidence from the officer who the Defendant asserted received the information, namely PC Beepat, would have been critical in proving its assertion. The effect of PC Beepat s failure to give evidence at the trial meant that there was no evidence from PC Beepat to corroborate any of PC Ramdial s evidence that PC Beepat received the information from the informant and he obtained a search warrant. Further, there was no documentary evidence adduced of the alleged search warrant which he had obtained since the Defendant did not file a hearsay notice to adduce the alleged search warrant into evidence. 60. Therefore, in light of the inconsistent evidence from PC Ramdial of who received the information from the informant, the absence of any documentary evidence and the absence of any corroborating evidence from PC Beepat, there was no credible evidence from the Page 20 of 40

21 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 20 th February 2010, around 2:00 a.m he along with PC Beepat and a party of officers namely: PC Seelalsingh, PC Insanali and PC Johnson left the Princes Town Police Station in two police vehicles, for the premises of the First Claimant. When they arrived, PC Beepat knocked on the door to the house and called out to the occupants inside. The house was a wooden structure which was relatively small. The First Claimant opened the door and all of the officers identified themselves to him. PC Beepat informed and showed him the search warrant in his possession and it was then read to him. The First Claimant did not say anything. The officers entered the premises. After PC Ramdial entered the premises he asked the First Claimant whether or not there was anyone else on the premises. He responded Yes. A search was carried out on his person and nothing illegal was found on him. The officers then entered the house and they saw the Second Claimant standing at the side of the bed. 63. PC Ramdial then searched the Second Claimant to ensure that he was not concealing any weapons on him and no weapon was found on his person. PC Ramdial said he also identified himself to the Second Claimant by means of his Trinidad and Tobago Police Identification Card. The bedroom was then searched. PC Ramdial observed PC Beepat finding some marijuana on the bed head area. When he further searched the bed, he Page 21 of 40

22 removed from under a pillow on the bed a black ski mask which concealed a revolver in it as well as five cylindrical brass casings each resembling that of ammunition. 64. According to PC Ramdial, PC Beepat cautioned the Claimants and informed them of their rights and privileges but they did not respond to him. PC Ramdial said he heard them say some things to each other. Both Claimants were handcuffed behind their backs and taken to the unmarked police vehicle and placed at the back of it. The marked police vehicle was an open tray pick-up van. The Claimants were then taken to the Princes Town Police Station to be formally charged for the offences. 65. On the execution of the search warrant, PC Ramdial confirmed in cross-examination that about five police officers went to execute the search warrant with two vehicles. He admitted that the house was very small. He estimated that it was about 12 feet in width and 20 feet in length. He said that PC Beepat and one other officer went into the house. He maintained that PC Beepat showed and read the search warrant to the Claimants. He testified that a search warrant is not usually signed by the person it is being executed upon. PC Ramdial also stated that the Second Claimant did not come to the door with the First Claimant but that he was found standing on the side of the bed where the gun was found. He maintained that both Claimants were present at the time the search was conducted and PC Beepat found the items in their presence. He denied that the items which were found were placed there by himself or PC Beepat. The Claimants were cautioned by PC Beepat and none of them made any utterances. 66. In cross-examination, with respect to the questions posed to him on the station diary, PC Ramdial admitted that the station diary extract was not produced to the Court. He said that he made checks for the station diary but it was not there and that it is missing. He stated that the items which were found and the statements which were made during the execution of the search warrant would have been placed in the station diary and the station diary is usually signed by the prisoner if he makes an utterance implicating himself. Page 22 of 40

23 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 crossexamination, there were two officers inside the house with the Claimants and three officers outside. If I am to accept PC Ramdial s evidence in cross-examination it would mean that he was not inside the house and therefore he was not present when he alleged the search warrant was read to the Claimants. 69. Second, PC Ramdial stated that the house was small. In my opinion, given the small size of the house, he would have seen if someone was inside the house when the First Claimant opened the door and there would have been no need to enquire if someone was inside. 70. Thirdly, PC Ramdial attempted to place the Second Claimant close to the bed where he said that the firearm, ammunition and marijuana were found. In my opinion, if he did not state that he was the officer who went inside the house he could not have stated with certainty the location of the Second Claimant in the house. 71. Lastly, PC Ramdial stated that when the search warrant was shown and read by PC Beepat to the First Claimant he did not say anything. Even if I accept PC Ramdial s evidence that the search warrant was shown to the First Claimant, it is highly plausible that given the time the search was done the Claimants would have protested their innocence vigorously. 72. In my opinion, in the absence of any serach warrant being adduced into evidence and based on PC Ramdial s evidence I find that there was no search warrant. 73. But even if there was a valid search warrant which I have not found, I have concluded that it was still improperly exercised since based on the uncontested and uncontroverted Page 23 of 40

24 evidence of the Claimants that no warrant was ever shown to either or read out to either and they were not present when the house was searched. The evidence of PC Ramdial was not reliable and there was no documentary evidence of any search warrant adduced by the Defendant. PC Ramdial s evidence was not corroborated since the Court did not have the benefit of PC Beepat s evidence and the Defendant did not call any other officer from the party of five who were present when the alleged warrant was executed. Fabrication/planting of evidence 74. Both Claimants alleged that the officers concocted the story of the firearm, ammunition and marijuana and that they planted the said items on the premises. The Defendant denied the allegation of the concocting and the planting of the items. 75. Where there is an allegation of fabrication the onus is on the party making the allegation to provide cogent evidence to prove the allegations. Indeed, the approach the Court has taken has been that the more serious the allegation, the less likely it is that the event occurred and, hence, the stronger the evidence should be before the Court concludes that the allegation is established beyond a balance of probability. In Re H and Others (minors)(sexual abuse: standard of proof) 14 the Court explained: Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability. This is the established general principle. The balance of probability standard means that a court is satisfied that an event has occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on a balance of probability. Fraud is less likely than negligence. 14 (1996) AC 563 Page 24 of 40

25 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 wellknown 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 Tobago 16 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 Page 25 of 40