IN THE HIGH COURT OF JUSTICE BETWEEN AND THE ATTORNEY GENERAL

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO No. CV IN THE HIGH COURT OF JUSTICE BETWEEN DEOSARAN PALAKDHARI Claimant AND THE ATTORNEY GENERAL Before The Honourable Madam Justice Dean-Armorer Defendants Mr. Ahmed for the Claimant Ms. Jodhan for the Defendant Introduction: This was a claim for damages for malicious prosecution and wrongful arrest. The Claimant, Deosaran Palakdhari, was arrested at his home by P.C. Gadar, a Police Officer acting as agent of the State. In this case, the Court considered whether the action of the arresting officer was hasty and premature, so as to negate the presence of reasonable and probable cause for laying charges against the Claimant. Facts: 1. In May 2003, the Claimant had been employed by Mr. Dhansam Dhansook and Mr. Alvin Panalal as a watchman, to guard a drilling and seismic site in the Ecclesville Forest, Rio Claro. 2. Mr. Dhansook and Mr. Panalal had been contracted to supply labour to the Tera Seis Limited.

2 3. The Claimant was required to guard drilling equipment, which had been left by the crew overnight. He received wages of $ per night and was paid by Mr. Dhansook every Wednesday. 4. On the 14 th May, 2003, after the Claimant had been employed for a period of two months, his services were unexpectedly and unceremoniously terminated. 5. On the following day, 15 th May, 2003, the Claimant visited Mr. Dhansook in the hope of learning why his employment had been terminated. The Claimant s uncontradicted evidence was that he received no explanation from Mr. Dhansook. Instead, Mr.Dhansook questioned the Claimant about a damaged Man Pump, which had been burnt. The Claimant denied any knowledge of the damaged pump. 6. On 16 th May, 2003, the Claimant was arrested at his home by P.C. Ramnarine Gadar No and P.C. Navin Maraj. The Claimant alleged that a party of police officers pounded on his door and upon entry cursed the Claimant and his wife. P.C. Gadar denied that the pounding or the cursing ever occurred. His testimony was unshaken in cross-examination and I accept Mr. Gadar s word on this issue. 7. The Claimant s arrest was pursuant to three warrants, which were obtained by P.C. Gadar following his swearing of Informations at the Rio Claro Magistrates Court. 8. Later that night, the Claimant was charged with malicious damage to property and possession of a firearm. He was placed in custody and detained for three nights and two days until he was granted bail on 19 th May, After thirteen adjournments, all sought by the prosecution, the first offence of malicious damage was dismissed on 28 th April, 2005, after the prosecution witness failed to appear. The second charge as to possession of a firearm was Page 2 of 21

3 dismissed on 30 th June, 2005, after the prosecution informed the Court that it could not establish that the accused was in possession of a firearm within the meaning of the Firearm Act. 10. In the defence of the Attorney General, the Defendant admits that P.C. Ramnarine Gadar laid three Informations against the Claimant. The Attorney General denies however that P.C. Gadar had been actuated by malice or that he lacked reasonable and probable cause. 11. In support of the Attorney General s denial of reasonable and probable cause, P.C. Gadar, in his witness statement testified that, while on duty at the Rio Claro Police Station he received a report from Dhansam Dhansook. 12. It was the uncontradicted evidence of P.C. Gadar that after having received the report of Mr. Dhansook he left on enquiries to Ecclesville, Rio Claro. P.C. Gadar testified that he took statements from Mr. Ramnarine Singh and Mr. Bickram Ragoobar, both of whom were employed as watchmen with the Tera Seis Trinidad Limited. 13. The statements from Mr. Ramnarine and Mr. Ragoobar, which had been recorded by P.C. Gadar, were annexed to the Witness Statement of P.C. Gadar. 14. In the course of the hearing, learned Counsel Mr. Ahmed objected to the admissibility of the statements of Mr. Ramnarine and Mr. Ragoobar, on the ground that they constituted inadmissible hearsay. 15. This Court overruled the objection and held that the state of mind of the arresting officer is relevant to the issue of whether or not the officer had reasonable and probable cause to suspect that the arrested person was probably guilty of the offence in question. The statements were admissible not for the truth of the Page 3 of 21

4 contents of the statements, but for the fact that the statements were communicated to P.C. Gadar as the prosecutor. 16. P.C. Gadar testified that Mr. Ramnarine Singh, by his statement, reported that the Claimant accused him of making him (the Claimant) lose his job. Mr. Ramnarine and Mr. Ragoobar also informed P.C. Gadar that the Claimant had a cutlass. Mr. Ramnarine reported as well that they discovered the burnt and damaged equipment. P.C. Gadar testified that Mr. Singh and Mr. Ragoobar showed him the burnt equipment which included: 3 burnt water pumps, a burnt compressor, a burnt drill and a quantity of chopped water and air hoses. 17. P.C. Gadar testified that based on the report of Mr. Ramnarine Singh and Bickram Ragoobar, he walked along a line leading to the Ecclesville Forest, where he observed a tree that was scorched as well as other damaged equipment. He later observed a tractor with a carriage in tow. On the carriage he observed damaged equipment, which was identified by Mr. Singh and Mr. Ragoobar as the equipment in respect of which the report had been made. 18. P.C. Gadar deposed that he spoke to the two persons who were seated on the tractor, that is to say Jimmy Ramos and Lincoln Duntin. From these two men, P.C. Gadar received a report that the damaged equipment had been left in tact on the night of May 14, P.C. Gadar testified that he also interviewed Suresh Kissoon, who positively identified the damaged goods as belonging to Tera Seis Limited. 20. At the beginning of the trial, learned attorneys for the Attorney General sought the Court s leave to rely on a Supplemental witness statement of P.C. Gadar. Leave was sought pursuant to Part 29.8 of CPR Learned Counsel, Mr. Ahmed, objected to the admissibility of the Supplemental witness statement on the ground of the lateness of the application and the consequential prejudice that would Page 4 of 21

5 accrue to the Claimant. witness statement. The Court refused permission to use the Supplemental 21. Under cross-examination P.C. Gadar admitted that neither Suresh Kissoon nor Ramos nor Duntin made any allegation against the Claimant. P.C. Gadar admitted that neither Ramos nor Duntin linked the damage to the Claimant. 22. P.C. Gadar admitted as well that when he visited the two sites, he found no items or equipment or cutlass belonging to the Claimant. 23. P.C. Gadar admitted further that according to his witness statement the only reports, which linked the Claimant to the reported incident, were the reports of the two watchmen, Mr. Ramnarine Singh and Bickram Ragoobar. 24. P.C. Gadar testified that he visited the Claimant s home for the purpose of interviewing him, but that he was unsuccessful because he was told by a young lady that the Claimant was not at home. Under cross-examination, it was suggested to P.C. Gadar that he never visited the Claimant s home. P.C. Gadar insisted that in fact he visited the Claimant s home on 15 th May, 2003 and that he was told by a young lady that the Claimant was not at home. 25. No issue is joined on the pleadings as to P.C. Gadar s visit to the Claimant s home. However, in so far, as an issue appears to arise in cross-examination, the Court reminds itself that in an action for malicious prosecution, the burden is carried by the Claimant to prove an absence of reasonable and probable cause. In so far as there are bald assertions on either side, it fell to the Claimant to redouble his efforts to prove that P.C. Gadar never visited. This may have been achieved, for example, by calling the Claimant s daughter, who, according to P.C. Gadar, reported that the Claimant was away from home. Page 5 of 21

6 26. On the evidence before me, however, the Court is constrained to accept the testimony of P.C. Gadar as unshaken by cross-examination that in the course of his investigations he visited the Claimant s home in order to interview him, but was unable to do so because the Claimant was not at home. 27. This witness admitted that it was important to interview the Claimant, according to him for the purpose of fairness but admitted that he made only one attempt to visit him during the day on the 15 th May, 2003 and that his visit on 16 th May, 2003 was for the purpose of executing the warrants of arrest. 28. P.C. Gadar alluded to further efforts to find the Claimant. When asked in crossexamination for details of his further efforts, P.C. Gadar stated that he spoke to several unnamed persons by the Ecclesville Drive Structure. In my view, the evidence of further efforts is both tenuous and improbable. I do not accept that any further efforts were made by P.C. Gadar to interview the Claimant. His efforts came to an end with his unsuccessful visit to the Claimants home. Law: 1. In an action for malicious prosecution, the Claimant is required to show the existence of four essential ingredients: (a) that the law was set in motion against him on a charge for a criminal offence; (b) that he was acquitted of the charge or that it was otherwise determined in his favour; (c) that the prosecutor set the law in motion without reasonable and probable cause; Page 6 of 21

7 (d) that in setting the law in motion, the prosecutor was actuated by malice. See Wills v. Voisin (1963) 6 WIR 50 at 57A. 2. Reasonable and probable cause has been defined as: An honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a state of circumstances, which assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. See Hicks v. Faulkner [1881-5] A.E.R. 187 at 191 B-C. 3. The burden of proving the absence of reasonable and probable cause in actions for malicious prosecution is carried by the Claimant. See Hicks v. Faulkner. It is generally accepted that factors and considerations that go to establish reasonable and probable cause or conversely the want of it in an action for malicious prosecution are substantially the same as those which to go prove or disprove reasonable and probable cause in an action for wrongful arrest. See Irish v. Barry (1965) 8 W.I.R. 177 per Mc Shine JA at At p. 192 B-C, Hawkins J continued: The question of reasonable and probable cause depends in all cases not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of. No matter Page 7 of 21

8 whether the belief arises out of the recollection and memory of the accuser, or out of information furnished to him by another. It is not essential in any case that facts should be established proper and fit and admissible as evidence to be submitted to the jury upon an issue as to the actual guilt of the accused. The distinction between facts necessary to establish actual guilt and those required to establish a reasonable bona fide belief in guilt should never be lost sight of in considering such cases as I am now discussing. Many facts admissible to prove the latter would be wholly inadmissible to prove the former. 5. Lord Denning in the case of Glinski v. Mc Iver (1962) A.C. 726 at 758, approved the definition of Hawkins, J: In the first place, the word guilty is apt to be misleading. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he has only to be satisfied that there is a proper case to lay before the court. After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him. So also with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer. It would be a black mark against him No, the truth is that a police officer is only concerned to see that there is a case proper to be laid before the court. Next the word honestly may in some cases be misleading also. It suggests that, in order to have reasonable and probable cause, a man who brings a prosecution must bring to bear a fair and open mind before he makes the charge. If this be so, then a belief which is distorted by malice Page 8 of 21

9 or biased with an improper motive could hardly be said to be an honest belief. That is why a jury, which has found malice, will very likely find also no honest belief. To them it is the same thing. Yet we all know that malice or improper motive is never a ground for saying there is no reasonable or proper cause. In the words of Lord Mansfield: From the most express malice, the want of probable cause cannot be implied : See Johnstone v. Sutton In Dallison v. Caffery (1965) 1 Q.B. 348, Lord Denning M.R. at page 369 E-G of the judgment held that positive identification of the suspect as the perpetrator of the crime tended to prove reasonable and probable cause: The final point taken by Mr. Jukes was on the general question whether there was any evidence on which the judge could find as he did that there was reasonable and probable cause for the prosecution. He said he should have found that there was a want of reasonable and probable cause. I cannot accede to this suggestion. It seems to me that the positive identification by Miss Phillips, coupled with the statement by James Long (which I think can be taken into account, despite the fact that he afterwards retracted it) and the phantom Jock, all show that Caffery had reasonable and probable cause for the prosecution. True it is that Dallison was innocent all the time. But that is no reason for making a police officer liable when he has only done his duty in investigating the crime 7. The House of Lords in O Hara v. Chief Constable of the Royal Ulster Constabulary (1997) 1 All.E.R. 129, discussed the requirements which comprise reasonable grounds for the suspicion which the officer has formed and stated the following at page 139 B-B. Per Lord Hope: 1 1 Term Rep 493, 545. Page 9 of 21

10 This means that the point does not depend upon whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information, which was in the mind of the arresting officer. It is the arresting officer s own account of the information which he had which matter, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information, which has been given to him anonymously, or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances. Malice 8. At page 67 B of the Wills v. Voisin 2 judgment, Justice of Appeal Mc Shine stated that: malice and reasonable and probable cause must unite in order to produce liability malice, i.e., an improper motive the onus of proof of which also rests on the plaintiff-respondent Brown v Hawkes 3 9. In Brown v. Hawkes at page 722 Cave J. attempted to define malice and stated as follows: 2 (1963) 6 W.I.R (1891) 2 QB 718. Page 10 of 21

11 Now malice, in its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In this case, I do not think that any particular wrong or indirect motive was proved. It is said that the defendant was hasty and intemperate He may also have been hasty, both in his conclusion that the plaintiff was guilty and in his proceedings; but hastiness in his conclusion as to the plaintiff s guilt, although it may account for his coming to a wrong conclusion, does not shew the presence of any indirect motive 10. At page 723, Cave J. commented as follows: In this country we rely on private initiative in most cases for the punishment of crime; and while, on the one hand, it is most important firmly to restrain any attempt to make the criminal law serve the purposes of personal spite or any other wrongful motive, on the other hand it is equally important, in the interest of the public, that where a prosecutor honestly believes in the guilt of the person he accuses, he should not be mulcted in damages for acting on that belief except on clear proof, or at all events reasonable suspicion, of the existence of some other motive than a desire to bring to justice a person whom he honestly believes to be guilty. 11. At page 728, Lord Justice Kay stated as follows: As I understand the argument for the plaintiff, it was said that the evidence to prove malice was that the defendant did not make proper inquiry as to the facts of the case. If that is all, and if that evidence is sufficient, the result would be that the finding on the first question put to Page 11 of 21

12 the jury, that the defendant did not take proper care inquire into the facts of the case, would, without more, determine the action in favour of the plaintiff. That cannot be so and when I look at the evidence (as I have done with care) to find what evidence there was of a sinister motive, I can find none on which the jury could reasonably find that the defendant was actuated by malice. Cecil Kennedy v. WPC Morris and or In Kennedy v. Morris, a 2005 decision of the Court of Appeal, the Appellant had been arrested by the first and second Respondents. The Appellant was charged with assault occasioning actual bodily harm and appeared in the Tunapuna Magistrates Court, to answer these charges, at least twenty times before the charges were dismissed against him. He brought an action for malicious prosecution, which was eventually dismissed 13. At paragraph 17, of his judgment, the learned Sharma JA (as he then was) cited the case of Hicks v. Faulkner and relied on the definition of reasonable and probable cause. The learned Appellate Judge noted that the absence of reasonable and probable cause is a question to be determined by the judge. 14. At paragraph 20, Sharma JA referred to Chatfield v. Comerford (1866) 4 F&F 1008, where it was held that a prosecutor is entitled to act on reasonable hearsay evidence. The learned Justice of Appeal referred as well to Lister v. Perryman (1870) LR 4 HL 521, as providing authority for the proposition that: any omission on the part of the prosecutor to sift information which appears to be suspicious, may be evidence of the want of reasonable and probable cause 4 CA 2257/1993. Page 12 of 21

13 15. Later in his judgment, Justice of Appeal Sharma referred to Baptiste v. Seepersad HC 367 of 2001, a case in which the accused went voluntarily to the police station. He was merely told of the allegations against him. In Baptiste v. Seepersad, it was held that the Defendants did not meet the test of reasonable and probable cause. 16. The learned Justice of Appeal Sharma distinguished Baptiste v Seepersad from the case before him. In Kennedy v Morris, the arresting officer had made several unsuccessful attempts to contact the suspect before she eventually laid the charge. In dismissing the appeal, Justice of Appeal Sharma held that the first respondent, WPC. Morris had not arrested the appellant on mere suspicion. Sharma JA held: On the evidence, a report was made, the accused, after several attempts, could not be contacted and the first defendant/respondent was therefore entitled to act as she did Irish v. Barry The case of Irish v. Barry is a decision of the Court of Appeal of Trinidad and Tobago and is of considerable vintage, having been decided in The well-known facts of that case sprung from the loss of a $5.00 note by a small boy and to the subsequent arrest and prosecution of the Respondent for larceny of the $5.00. Irish v. Barry, in spite of its age, is useful for the determination of the instant matter, because it addresses the effect of hasty action on the part of an arresting and a prosecuting officer on the presence or absence of reasonable and probable cause. 19. At page 180 G of the case, Wooding C.J. stated as follows: The appellant acted on information received. He had no personal knowledge of any of the relevant facts. It is therefore to inquire what 5 (1965) 8 W.I.R. 177 Page 13 of 21

14 information he had at the time, whether it was such as justified him in giving it credit, and whether the suspicion which it aroused was a reasonable suspicion The decision whether a suspicion is such as will justify effecting an arrest is sometimes a delicate one to make since, as Lord Wright pointed out [1963] All ER at p. 613): police officers, in determining whether or not to arrest, are not finally to decide the guilt or innocence of the person arrested. Their functions are not judicial, but ministerial, and it may well be that if they hesitate too long when they have a proper and sufficient ground of suspicion against an individual, they may lose an opportunity of arresting him, because in many cases steps have to be taken at once in order to preserve evidence. I am not saying that as in any way justifying hasty or ill-advised conduct. Far from that, but once there is what appears to be a reasonable suspicion against a particular individual, the police officer is not bound, as I understand that law, to hold his hand in order to make further inquiries if all that is involved is to make assurance doubly sure. 20. In the course of his decision Wooding CJ referred to the words of Scott LJ in Dumbell v. Roberts [1944] 1 All ER 326: The principle of personal freedom that every man should be presumed innocent until proven guilty applies also to the police function of arrest in a very modified degree it is true, but at least to the extent of requiring them to be observant, receptive and open-minded, and to notice any relevant circumstance which points either way, either to innocence or to guilt. They may have to act on the spur of the moment and have no time to reflect and bound there to arrest to prevent escape, but where there is no danger of the person who has aroused their suspicion, that he is an Page 14 of 21

15 offender attempting to escape, they should make all presently practicable inquiries from persons present or immediately accessible who are likely to be able to answer their enquiries forthwith. I am not suggesting a duty on the police to try to prove their innocence but they should act on the assumption that their prime facie suspicion may be ill-founded. The duty attaches particularly where slight delay does not matter, because there is no probability in the circumstances of the arrest of the suspected person running away The duty attaches simply because of the doublesided interest of the public in the liberty of the individual as well as in the detection of crime Damages: 1. Holison Stewart v the Attorney General of Trinidad and Tobago # 12165; PC Carlos Carr: the Plaintiff claimed damages for assault, false imprisonment and malicious prosecution. He succeeded in his claim for malicious prosecution only in part. The Court awarded damages in the sum of $15, and in so doing took into account the Plaintiff s success in proving only the claim for malicious prosecution, albeit in part, and also the fact that he was deprived of his liberty for 2 days. 2. Anthony Sorzano and Steve Mitchell v The A.G and Dawson Victor HCA S. No. 46 of 1996, HCA No. 162 of Here the Court made an award for malicious prosecution in the sum of $10, The Court took into account the fact that the Plaintiff was never before arrested. The charges in this case were murder and attempted murder. 3. Henry Jangoo v Estate Constable Noel Gomez and Port Authority of Trinidad and Tobago HCA 2652 of 1978: general damages of $10, were awarded. Page 15 of 21

16 Reasoning and Decision: 1. By his Claim Form and Statement of Case, the Claimant seeks damages for wrongful arrest. It is well established as a matter of principle that an arrest is justified when it is effected pursuant to a warrant. See Ragoobar Ramkissoon v. P.C. No Ramdath & Ors. HCA No of 1976, where the Honourable Justice Edoo (as he then was) said at p. 6: The question whether Ramdath had reasonable and probable cause for the arrest of the plaintiff, does not arise in a case where a warrant has been issued Where a valid warrant has been issued by a judicial officer acting within his jurisdiction and it has been properly executed by the officer of the law to whom it was entrusted, no liability in tort can attach to such person in pursuance thereof 2. There was no dispute, in the instant case, that P.C. Gadar effected the Claimant s arrest pursuant to three warrants. I therefore hold that the arrest of the Claimant was justified by virtue of the warrants and the claim for damages for wrongful arrest is accordingly dismissed. 3. In respect of the action in malicious prosecution there is no dispute that the first two elements of the tort are present in this case, that is to say that the law had been set in motion against the Claimant and that the charge was determined in his favour. The requisite elements are present in respect of both offences for which the Claimant had been prosecuted, that is to say unlawful and malicious damage to property and possession of a firearm. 4. It therefore falls to this Court to decide whether the Claimant has successfully proved the absence of reasonable and probable cause on the part of the arresting officer and whether the arresting officer had been actuated by malice. Page 16 of 21

17 5. In so doing the Court is required to enquire whether the arresting officer held an honest belief that the Claimant was probably guilty of the offence. The Court is required to consider the information that was in the mind of the prosecuting officer at the time that the charge was laid. In discerning the information in the mind of the prosecuting officer, the Court is required to consider the officer s own account of the information which he had. See O Hara v. Chief Constable of the Royal Ulster Constabulary (1997) 1 All ER By his account, P.C. Gadar was seized of the following information: (i) That there was a report of a malicious damage to property. (ii) Having visited the work sites, P.C. Gadar was aware that equipment had been damaged and that the damaged equipment belonged to Tera Seis Limited. (iii) By virtue of reports, P.C. Gadar had reason to believe that the damage took place after the close of work on the 14 th May, 2003 and before the commencement of work on 15 th May, (iv) P.C. Gadar also had a report that the Claimant had been a watchman with Tera Seis, that his employment had been terminated on 14 th May, 2003 and that with cutlass in hand he vowed to mess up everything (v) However, P.C. Gadar had no opportunity to hear what the Claimant had to say in his own defence. 7. The Court is required to sift this information through the view of the ordinarily prudent and cautious person. The Court is required to consider whether the ordinarily prudent and cautious person would be led, by the information, to the Page 17 of 21

18 conclusion that the Claimant was probably guilty of the offence for which he was charged. 8. In so doing, the Court reminds itself that the officer who lays the charge was not required to be convinced of the guilt of the Claimant, but only that he was probably guilty. 9. In my view, the ordinarily prudent and cautious person would take into account the reported threat, which the Claimant made on the 14 th May 2003 that he would mess up everything. In my view, the ordinarily cautious and prudent person would be struck by how soon after the threat there was a discovery of damaged equipment. The conjoint effect of these two factors coupled with the absence of any other suspect would in my view lead the ordinarily prudent and cautious person to the conclusion that the Claimant was probably guilty, of the offence of unlawful and malicious damage to property. 10. There was no reason to believe that the reports were suspicious. The fact that the equipment belonging to the company had been damaged was beyond challenge. There was nothing in the evidence to suggest that the report of the Claimant s coworkers was suspicious, so as to require the officer to conduct further investigations, as required by the case of Lister v. Perryman P.C. Gadar may be faulted for omitting to renew his efforts to contact the Claimant. In this regard, the Court has to decide whether P.C. Gadar acted too hastily. In my view the words of Lord Wright in McArdle v Egan 7, are applicable: As long as there is reasonable suspicion the police officer is not bound to hold his hand if all that is involved is to make assurance doubly sure. 6 (1870) LR 4 HL [1933] All ER 611 Page 18 of 21

19 In my view, in the instant case, conducting an interview with the Claimant was as P.C. Gadar said, for the purpose of being fair to him. One would expect that the Claimant would have denied that he committed the offence and may also have been able to provide an alibi. The duties of the arresting officer are, however, ministerial and not judicial. P.C. Gadar could not decide on the guilt or innocence of the Claimant and was entitled in my view to proceed to act on reasonable suspicion. 12. Accordingly, I hold that in respect of the charge of unlawful and malicious damage to property the Claimant has failed to prove the absence of reasonable and probable cause. Where the absence of reasonable and probable cause is not proved, the question of malice does not arise See Cecil Kennedy v. AG & Other I now turn to consider whether P.C. Gadar had reasonable and probable cause to suspect that the Claimant was guilty of the offence of unlawful possession of a firearm. 14. The available evidence in respect of the second charge is altogether very different from the evidence in respect of the first charge. P.C. Gadar s witness statement, as well as the statements on which he relied were devoid of any reference to firearms. The statements of Ramnarine Singh and Bickram Ragoobar, as well as those of Suresh Kissoon, Jimmy Ramos and Lincoln Duntin contain no reference to the use or presence of firearms. 15. On the information held by P.C. Gadar, according to the evidence, the ordinarily prudent and cautious person would remark at the total absence of evidence relating to the possession of a firearm and would decide against laying such a charge. 8 CA 87/2004. Page 19 of 21

20 Accordingly, it is my view and I hold that the Claimant has established an absence of reasonable and probable cause to lay a charge for the possession of firearm. 16. From the absence of reasonable and probable cause, the Court may infer the presence of malice. 17. Learned Attorneys-at-Law for Defendant have argued in their written submissions that a prosecution which has been laid pursuant to the instructions of a superior officer cannot be infected with malice. 18. The available authorities suggest that a prosecuting officer will not be liable for the tort of malicious prosecution where he lays all the facts of his case fairly before counsel and acts bona fide on the opinion of counsel. See Ravenga v. Mac Kintosh (1871), 2 BSC 541. Similarly, the fact that the advice of the Director of Public Prosecution may have been sought is relevant but not conclusive. See Clerk and Lindsell on Tort (18 th ed.) para In my view, the effect of the authorities is that the prosecutor s reliance on the advice or instructions of a competent authority will tend to negate the presence of malice. However such reliance is not conclusive. 20. In the instant case there was no evidence whatsoever upon which P.C. Gadar could found a belief in the probability of the Claimant s guilt in respect of the offence of the unlawful possession of firearms. There was some tenuous material contained in the supplemental witness statement. The use of the supplemental statement was not permitted because of its lateness. Accordingly, the Court is unable to rely on any allegations contained therein. 21. In my view, in this situation, the Court may reasonably infer malice from the total absence of reasonable and probable cause. The Claimant has succeeded in proving Page 20 of 21

21 the presence of the four (4) ingredients of a successful claim in malicious prosecution in respect of the charge of possession of a firearm. 22. Accordingly, it is my view and I so hold that the Defendant in this action is, therefore, liable to the Claimant for malicious prosecution in respect of the offence of the possession of firearm pursuant to s. 6 (1) of the Firearm Act. Orders: 1. There will be judgment for the Claimant in respect of his claim for damages for malicious prosecution arising out of a charge for the possession of a firearm pursuant to s. 6(1) of the Firearm Act Ch. 16: The Claimant s claim for damages for false imprisonment and wrongful arrest is dismissed. 3. The Defendant to pay the Claimant General Damages in the sum of $10, and Special Damages in the sum of $10, The Defendant to pay to the Claimant one third of the costs of this action to be quantified in default of agreement. Dated the 25 th of July, Mira Dean-Armorer Judge Judicial Research Assistant: Renee McLean Page 21 of 21