IN THE SUPREME COURT OF BELIZE, A.D. 2011

Transcription

1 IN THE SUPREME COURT OF BELIZE, A.D CLAIM NO. 485 of 2010 ROMEL PALACIO CLAIMANT AND BELIZE CITY COUNCIL DEFENDANT Hearings th May 15 th June 30 th June Claimant in person. Mr. Lionel Welch for the defendant. LEGALL J. JUDGMENT 1. The claimant was appointed on 6 th February, 2001 to the post of prosecutor by the defendant in the Municipal Court. In 2004, allegations of misconduct were made against him; and after disciplinary hearings, he was dismissed by the defendant. He brought a claim no. 175 of 2005 against the defendant for wrongful dismissal; 1

2 and the Supreme Court on 28 th April, 2006 dismissed the claim and order costs against him. 2. On the 2 nd April, 2009 at about 1:00 p.m. the claimant parked his vehicle, a Dodge Caravan BZ 6102 at Mule Park, Albert Street, Belize City. In the area where the vehicle was parked, there was a sign constructed by the defendant on two iron post with visible words that it was reserved parking for magistrates of the Municipal Court. Fenton Simon, who was employed by the defendant as a traffic officer, was on duty at the area where the vehicle was parked. He decided that the vehicle was parked in a prohibited parking area and wrote a ticket for the offence of Prohibited Parking under Regulation 125 (1) (c) of SI 25 of the Motor Vehicle Road Traffic Amendment Regulation 1992 read along with SI No. 180 of Simon says he placed the ticket under the wiper of the vehicle, as no one was present in the vehicle at the time, and he left and proceeded with his other duties. The claimant said that when he returned to his vehicle he saw Simon writing the ticket after which Simon gave the ticket to him. The claimant said he then told Simon that he had not committed any offence and that it was legal to park in the area, to which, according to the claimant, Simon replied that it was an offence to park in that area and since he had already written the ticket there was nothing he could do about it. 3. One thing that has not been proven by the claimant as incorrect is that Simon did not know the claimant before issuing the ticket. Moreover, the claimant did not allege that he knew Simon before, or Simon knew 2

3 him before the issuing of the ticket. But there is the discrepancy whether Simon issued the ticket in the presence of the claimant and made the alleged remarks above. Only two witnesses were called in this case the claimant and Simon. The burden is on the claimant to prove that the ticket was issued in his presence and the defendant Simon made the alleged above statements. I am not, on the evidence, satisfied on a balance of probabilities that the ticket was issued to the claimant in his presence and Simon made the alleged statements. 4. The claimant not having paid the fine of $25.00 within the 30 days of the issue of the ticket, was on the 13 th May, 2009, served with a summons to appear on the 9 th June, 2009 at the Municipal Court to answer a charge of Prohibited Parking contrary to the above Regulations. The claimant appeared in court on the 9 th June, 2009, pleaded not guilty, and the case was adjourned to 7 th July, 2009, on which date the prosecution withdrew the charge against the claimant, which was thereupon dismissed. The reason for the withdrawal of the charge was that the prohibited parking area, where the vehicle was parked, was not published in the gazette as a prohibited parking area, as required by the Regulations. Because of the non publication in the gazette, the prosecution felt it could not prove that a condition making the area a prohibited parking area was satisfied. 5. The claimant armed with the withdrawal of the charge, issued a claim against the defendant for malicious prosecution, and asked for damages in the amount of $25,000. The claimant s case is that Simon, an employee of the defendant, in the course of his duties with 3

4 the defendant, issued a traffic ticket to him when there was no traffic offence committed by him. He had committed no traffic offence in parking his vehicle in that area and therefore he should not have been charged and put before the court. The defendant had a duty to properly train and educate its officers as to when to properly issue a traffic ticket, and if it had done so in this case, officer Simon would have known that the area was not gazetted and therefore did not become lawfully a prohibited parking area. This shows according to the claimant, negligence and malice on the part of the defendant. Secondly, says the claimant, the defendant ought to have investigated whether or not the area was gazetted, and its failure to do so shows that the defendant was not only negligence but was malicious in prosecuting him. 6. The crux of this matter is whether the defendant acted maliciously or with malice in issuing the ticket and bringing of the charge against the claimant. The foundation of the action for damages for malicious prosecution lies where there is an abuse of the process of the court by wrongfully with malice setting the law in motion. The tort of malicious prosecution is designed to discourage the perversion of the machinery of justice for an improper purpose: see Gregory v. Portsmouth City Council 1997 EWCA Civil Division It is clear from the authorities that in order for the claimant to succeed in an action for damages for malicious prosecution it must be established that the claimant was prosecuted on a criminal charge by the defendant who instituted and carried on the proceeding maliciously and in the absence of reasonable and probable cause for the 4

5 proceedings: see Halsbury Laws of England Fourth Edition Volume 45 paragraph 1348 and 1349 and Leslie v. Olivierre W.I.R. 186 at p The issue of whether the officer had an honest belief in the truth of the charge brought by him against the claimant is also relevant in determining whether malicious prosecution is established. Where the evidence shows that the officer brought the charge while holding an honest belief in the truth of the charge, it may be difficult to prove he acted without reasonable and probable cause. In Glinski v. McIver 1962 AC 728, where the claimant brought an action for malicious prosecution against a police detective for charging him for conspiracy to defraud and obtaining goods by false pretence, from which charges the claimant was acquitted by the direction of the court, the question arose whether the detective honestly believed that the claimant was guilty of the offences when he brought the charges. Lord Radcliffe in the House of Lords said: If the prosecutor can be shown to have initiated the prosecution without himself holding an honest belief in the truth of the charge he cannot be said to have acted upon reasonable and probable cause. The question is whether the prosecutor was motivated by what presented itself to him as reasonable and probable cause, though mere belief in the truth of the charge would not protect him if the circumstances would not have led an ordinarily prudent and cautious man to conclude that the person charged was probably guilty. 5

6 8. In Hernand v. Smith 1938 AC 305 the House of Lords approved the definition of the phrase reasonable and probable cause given by Hawkins J in Hick v. Faulkner Q.B.D. 167 at p 171, 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 ordinary 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. 9. The traffic officer Simon saw the sign indicating that the area was a prohibited parking area. As a result he issued the ticket. Did he honestly believe in the truth of the charge? Would an ordinary prudent and cautious man, placed in the position of Simon come to the conclusion, on the facts, that the claimant was probably guilty of the charge? Did the defendant honestly believe in the truth of the charge. The burden is on the claimant to prove on a balance of probabilities that on the evidence, Simon when he issued the ticket did not honestly believe in the truth of the charge. I am not satisfied on the evidence that the claimant has discharged this burden. The failure to determine before the charge whether the area was gazetted may be negligence, but I do not think that means that there was no honest belief in the truth of the charge and therefore amounted to malicious prosecution. 6

7 10. It must also be mentioned that Simon and the claimant did not know each other before issuing the ticket, and the charge was withdrawn when it became clear that the area was not gazetted. 11. For the above reasons, I make the following orders: (1) The claim is dismissed. (2) The claimant and the defendant to bear his and its own costs. Oswell Legall JUDGE OF THE SUPREME COURT 30 th June,