REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV2013-00397 BETWEEN SHAM JAGDEO Claimant AND THE HONOURABLE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Before the Honourable Mr. Justice A. des Vignes Appearances: Mr. Kevin Ratiram for the Claimant Ms. Coreen Findley and Ms. Trisha Ramlogan instructed by Ms. Amrita Ramsook for the Defendant JUDGMENT 1. On the 13th May, 2009, the claimant was charged with the offence of possession of marijuana for the purpose of trafficking contrary section 5(4) of the Dangerous Drugs Act Chapter 11:25. On the 1st October, 2009, the claimant was released on bail which was granted by the High Court and he was subsequently discharged on the 23rd May, 2011. By Claim Form and Statement of Case dated 31st January, 2013 the claimant alleges that the charge was laid against him maliciously and without reasonable and probable cause. The claimant now claims he is entitled to damages for malicious prosecution together with aggravated and/or exemplary damages. Page 1 of 25
The Claim 2. By his Claim Form and Statement of Case the claimant sought the following items of relief: i. Damages for malicious prosecution. ii. Damages for false imprisonment. iii. Aggravated and/or exemplary damages. iv. Interest at the rate of 12% per annum pursuant to the Supreme Court of Judicature Act. v. Costs. vi. Such further and/or other order as the nature of the case requires. 3. On Tuesday 12 th May, 2009 around 5:30 a.m. the claimant was sitting on an excavator guarding for PR Contracting some of their equipment at Churuma Road, Tabaquite. While sitting there, he noticed a group of people coming towards him from 800 ft away. As it was still dusk dark, he could not identify who the people were. He thought the people could be bandits and as he was there alone, he walked up a track on the right side where there was a camp about 20 feet from the road and sat there. From the camp, he was still able observe the people coming in his direction. 4. While in that camp four persons came up to the front the camp, they pulled the sponge of the bed while the claimant was still sitting on the bed and cause him to fall to the ground and made him lie flat on his belly. They informed him they were police officers and enquired about the whereabouts of another man. The claimant informed them that he alone was working at that jobsite. 5. The claimant says the men rubbed him down, searched his pocket and relieved him of his wallet which contained his salary in the amount of $2,618.00 which he had been paid on the previous Saturday. The claimant contended that he was staying on the jobsite because his house was damaged. Page 2 of 25
6. The officers then proceeded to search the camp and took away his torchlight and some spray cans and after nothing was found they left him there with three policemen and one policewoman. 7. After the other officers left walking towards the road, two police jeeps and a car came down the hill and were driving towards the officers who were walking. Two of the four officers who were left with the claimant joined one of the jeeps. The remaining two officers informed the claimant that he had to go with them. The claimant contends that he informed the officers that he could not leave because he was responsible for all the equipment namely an excavator, a loader, a D6 tractor, a welding plant with a generator plus material for a bridge building being built on the same site. However, he was forced to leave with the officers out of an abundance of caution on the part of the officers he believed that he would tell persons coming in the area that the police were in there. 8. The claimant contends that he was placed in a police car and taken to another camp which was about half mile from his job site. 9. The claimant remained in the backseat of the car for about half an hour when he noticed that the two jeeps came and parked behind the car he was in and about ten minutes later he observed the police had another man in handcuffs who was placed in one of the jeeps. 10. The claimant contends that he also observed about eight officers coming through an open savannah with a bundle of marijuana trees which was placed in one of the open trays in the jeep and then he was taken back to his job site. 11. When the claimant was being dropped off he informed the officers he needed his wallet which had all his credentials. Upon receiving his wallet he observed that his money was missing so he enquired about his money whereupon one of the officers planasse him with a cutlass, told him like you trying to set up the fucking police or what, took back his wallet and pay slip, arrested and handcuffed him and took him to the jeep with the co- Page 3 of 25
accused, Seeberan Roodal. Both accused persons were taken to the San Fernando Task Force Office. 12. The marijuana recovered was chopped up and weighed. The accused persons were then jointly charged for possession of marijuana for the purpose of trafficking. 13. The accused persons were then taken to the Ste. Madeline Police Station where they were held for the night. 14. The claimant contends that at no time while he was detained and arrested was he told of his constitutional rights and he was remanded to prison for four and a half months with hardened criminals before obtaining bail. The prison cell was over-crowded, filthy, engulfed with offensive odors and was forced to sleep on the floor. 15. The claimant spent 138 days in jail. 16. The claimant further contends that his reputation has been harmed, he has suffered mental anguish and prevented from attending to his business and has incurred legal costs in defending himself against the charge. Defendant s case 17. In or around May 2009 PC Roger Nanan received information from an informant to the effect that one Seebaran Roodal and another individual were planting marijuana which was kept at a camp in the vicinity of Charuma Road, Tabaquite. 18. On the 12 May, 2009 around 3:00a.m. a party of officers left the Southern Division Task Force to investigate the said report. 19. The officers arrived at the location around 5:00am. Upon arrival they observed a dilapidated bridge and a tractor and other equipment alongside the road. 20. To the eastern side of the bridge the officers observed a camp in the form of a wooden shed and proceeded to approach and open the door. Page 4 of 25
21. PC Nanan and PC Agostini and PC Forde all entered the structure and observed two men inside along with a quantity of plant like material resembling marijuana. 22. The officers identified themselves and asked the men their names and addresses, to which they responded Seebaran Roodal of Dumore Trace, Brothers Road, Rio Claro and Sham Jagdeo of Tabaquite Road, Jeffers Crossings, Rio Claro. The men were asked why they were there and they responded that they were planters. 23. PC Nanan informed the claimant and the co accused that he was of the opinion that the plant like material was marijuana and that they were in possession of same for the purpose of trafficking. The men were cautioned, both remained silent and subsequently arrested and told of their constitutional rights and privileges. They made no requests, were handcuffed and placed in the back of one of the police vehicle under police guard. The plant like material was placed in the tray of one of the police vehicle. 24. PC Nanan along with some of the officers then proceeded into the forest on further enquiries and discovered a portion of land cultivated with what appeared to be marijuana plants and another camp with seedlings. The officers destroyed the camp. 25. The claimant and the co-accused were then transported to the Southern Division Task Force, San Fernando. Upon arrival around 12:00p.m. the men were searched. On searching the Claimant a black wallet containing a TT driver s permit and a black Nokia cell phone was discovered on his person. 26. The plant-like material resembling marijuana was then placed into three black bags and weighed in the presence of the Claimant and the co-accused. The bag weighed 97 Kg. and PC Nanan then placed his markings RN 12/5/09 on three pieces of masking tape and affixed it on each of the bags again in the presence of the Claimant, the co-accused and PC Forde. 27. The claimant and the co-accused were then finger- printed by PC David while PC Nanan further cautioned both the claimant and the co-accused and again informed them of their rights. 28. The Claimant requested a phone call around 1:45pm to telephone number 787-3119 which lasted for about two minutes. They were then charged with possession of marijuana for the purpose of trafficking and served with the Notices to Prisoner. Page 5 of 25
29. The Claimant and the co-accused were then taken to the San Fernando Police Station where they spent the night. 30. On the 13 May 2009 at or around 9:00am the Claimant and the co-accused appeared before a magistrate at the Rio Claro Magistrates Court where they were both denied bail and remanded to custody. 31. The Defendant denies that the Claimant was guarding any tractor when the officers arrived at the camp. The Defendant contends that the Claimant was found inside the camp along with the co-accused Seebaran Roodal. He was not placed into a police vehicle and taken to any other camp where the drugs were found. 32. The Defendant denies that any of the officers stole $2600 from the Claimant s wallet. 33. The Defendant further contends that PC Nanan at all material times had reasonable and probable cause to charge the claimant with the offence of possession of a dangerous drug for the purpose of trafficking. The Issues 34. The following issues arise for determination in this matter: i. Whether or not P.C. Nanan had reasonable and probable cause to charge the Claimant for possession of marijuana for the purpose of trafficking and to continue with the prosecution of same? ii. Whether or not in laying the charge against the Claimant P.C. Nanan was actuated by malice? iii. Did the Claimant suffer damage? iv. Whether or not in all the circumstances of the case aggravated and/or exemplary damages ought to be awarded to the Claimant? The Witnesses 35. The Claimant and his mother, Kowsilla Jagroop, gave evidence in support of the Claimant's claim while Police Constable Roger Nanan, Regimental No. 14476 and Police Inspector Michael Pierre, Regimental num. 12171 gave evidence for the Defendant. Examination of Issues Page 6 of 25
I. Whether or not P.C. Nanan had reasonable and probable cause to charge the Claimant for possession of marijuana for the purpose of trafficking and to continue with the prosecution of same? II. Whether or not in laying the charge against the Claimant P.C. Nanan was actuated by malice? The Law 36. In Cecil Kennedy v. Donna Morris & The Attorney General of Trinidad and Tobago, Civ. App. No. 87 of 2004, Sharma C.J. succinctly summarized the law with respect to the tort of malicious prosecution: [11] To succeed in action for damages for malicious prosecution a plaintiff must prove: (i) (ii) (iii) (iv) (v) the prosecution by the defendant of a criminal charge against the plaintiff before a tribunal into whose proceedings the criminal courts are competent to inquire; that the proceedings complained of terminated in the plaintiff s favour; that the defendant instituted or carried on the proceedings maliciously; that there was an absence of reasonable and probable cause for the proceedings; and that the plaintiff has suffered damage. 37. It is not in dispute between the parties that the burden of proof of these elements lies upon the Claimant. It is also undisputed that the Claimant was charged with possession of marijunana for the purpose of trafficking by P.C. Nanan and that the Claimant was discharged by Her Worship, M. B-E. Caddle, the Senior Magistrate presiding in Rio Claro on the 23rd May 2011. The substantive issues in this matter are therefore whether the Claimant has proved that (a) there was an absence of reasonable and probable cause for the proceedings; (b) P.C. Nanan instituted and carried on the proceedings maliciously; and (c) the Claimant has suffered damage. Page 7 of 25
38. In Hicks v. Faulkner (1878) 8 QBD 167 at 171, Hawkins J. defined reasonable and probable cause as an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. 39. This definition was approved by the House of Lords in Herniman v Smith (1938) 1 All ER 1, per Lord Atkin at p. 8. In Glinski v McIver [1962] 2 WLR 832 per Lord Devlin, at p. 857, put it this way: what is meant by reasonable and probable cause? It means that there must be cause for thinking that the plaintiff was probably guilty of the crime imputed: Hicks v Faulkner. This does not mean that the prosecutor has to believe in the probability of conviction: Dawson v Vandasseau. The Prosecutor has not got to test the full strength of the defence; he is concerned only with the question of whether there is a case fit to be tried. 40. The question whether or not there was reasonable and probable cause for a prosecution is one of fact. It is to be determined objectively and subjectively, that is to say: objectively, whether a reasonable man having knowledge of facts that the defendant knew at the time he instituted the prosecution, would have believed that the Claimant was guilty of the alleged crime and subjectively, whether P.C. Nanan honestly believed that the Claimant was guilty. What P.C. Nanan believed must be based upon facts known to him, at the time that he initiated the prosecution. 41. A person is not bound before instituting proceedings to see that he has such evidence as will be legally sufficient to secure a conviction. There may be reasonable and probable cause for preferring a criminal charge even though the prosecutor has before him only prima facie evidence. Viscount Simonds said in Glinski v McIver (ibid):. A question is sometimes raised whether the prosecutor has acted with too great haste or zeal and failed to ascertain by inquiries that he might have made facts that would have altered his opinion upon the guilt of the accused. Upon this matter it is not possible to generalise, but I would accept as a guiding principle what Lord Atkin said in Herniman v Smith, that it is the duty of a prosecutor to Page 8 of 25
find out not whether there is a possible defence but whether there is a reasonable and probable cause for prosecution. Nor can the risk be ignored that in the case of more complicated crimes, and particularly perhaps of conspiracies, inquiries may put one or more of the criminals on alert. 42. It is sufficient for the person who initiates criminal proceedings to do so on such information as a prudent and cautious person may reasonably accept in the ordinary affairs of life. The question will be whether the impression produced on the mind of the prosecutor by the facts before him was such as would be produced on the mind, not of a lawyer, but of a discreet and reasonable man: Lister v Perryman (1870) LR 4HL 521 43. Where the prosecutor has nothing before him but mere suspicion then it would not be justifiable to commence a prosecution and a case for lack of reasonable and probable cause may be made out. (Baptiste v The Attorney General of Trinidad and Tobago & Seepersad, HCA 36 of 2001). Malice 44. A Claimant who alleges malicious prosecution has the burden of proving not only that the prosecutor lacked reasonable and probable cause but also that he was actuated either by spite or ill-will against the Claimant or by indirect or improper motive. The absence of reasonable and probable cause is generally a good indication that the prosecutor has no proper motive but it is not conclusive evidence of malice in every case. If the prosecutor does not believe in the merits of the case that he has brought against the accused, that will be strong evidence of malice. 45. In Browne v. Hawkes (1891) 2 QB 718 at 722, Cave J. stated as follows: Now malice, its widest and vaguest sense, has been said to mean any wrong or indirect motive; and malice can be proved, either by shewing what the motive was and that it was wrong, or by shewing that the circumstances were such that the prosecution can only be accounted for by imputing some wrong or indirect motive to the prosecutor. In this case, I do not think that any particular wrong or indirect motive was proved. It is said that the defendant was hasty and intemperate. He may also have been hasty, both in his conclusion that the plaintiff was guilty and Page 9 of 25
in his proceedings; but hastiness in his conclusion as to the plaintiff s guilt, although it may account for his coming to a wrong conclusion, does not shew that presence of an indirect motive 46. However, where a Claimant fails to prove a lack of reasonable and probable cause on the part of the prosecutor, the question of malice does not arise for the consideration of the Court. In Randolph Burroughs v. AG, HC 4702/1986; HC 2418/1987, Justice Ibrahim expressly held that since the Plaintiff had failed to discharge the onus of proving that the prosecution was undertaken against him without reasonable and probable cause, it had become unnecessary to consider the question of malice. In Cecil Kennedy v. Morris & AG (ibid), the Court of Appeal endorsed this approach when they found that although the trial judge had painstakingly examined the requirements and authorities for proving malice, the question of malice did not arise since there was sufficient evidence that the appellant had been arrested with reasonable and probable cause. The Evidence 47. The Claimant has based his case on the following important facts: (i) When the officers came to the camp, he was alone and there was no marijuana in the camp. The police searched him and took away his wallet which contained $2,618; (ii) The officers took him in a police vehicle to another camp about a halfmile away. At that location, he saw the police bring out another man in handcuffs and put him in a jeep. This was the first time he saw this man. He also saw about 8 policemen come through an open savannah, each holding a bundle of marijuana trees which they placed in an open tray of the jeep. (iii) When the police officers returned to his camp to drop him off, he requested the return of his wallet. The officers returned the wallet but there was no money in it. He then protested that there was no money in the wallet and an officer 'planassed' him. He then showed the officers his payslip to prove that he had money in his wallet. The officers then took Page 10 of 25
away his wallet and his pay slip, took him to the same jeep in which the other man was seated and handcuffed him to that man. (iv) Both men were then taken to the San Fernando Task Force Office where the officers in the presence of both men chopped up the marijuana, weighed it and charged both men jointly for possession of marijuana for the purpose of trafficking. (v) He was discharged by the Magistrate on the 23rd May 2011 and he spent $10,000.00 to his lawyer, Mr. Nanan to defend him in the Magistrates Court. 48. The Defendant's witnesses, P.C. Nanan and Inspector Pierre recounted a completely different version of the circumstances in which the Claimant was arrested and charged. They say that: (i) On the 12th May 2009, P.C. Nanan, in company with 11 other police officers, went on an exercise to investigate a report that Seebaran Roodal, along with another individual, was planting marijuana which was kept in a camp in the vicinity of Charuma Road. Police Sergeant Pierre was the officer in charge of the exercise. (ii) When the officers reached the camp site, P.C. Nanan, P.C. Agostini and P.C. Forde entered the camp and found the Claimant and another man asleep on two separate bunk beds. P.C. Nanan also observed a quantity of plant-like material resembling marijuana in a pile on the ground; (iii)sergeant Pierre and the other officers entered the camp after P.C. Nanan, P.C. Agostini and P.C. Forde. (iv) P.C. Nanan woke the two men, identified himself and asked the men to identify themselves. He asked them why they were in the camp and they replied that they were planters. (v) P.C. Nanan informed the men of his suspicion that the plant-like material was marijuana and of the offence they were committing by having it in their possession. (vi) The officers conducted a search of the camp in the presence of the two men. P.C. Nanan then cautioned the men and they both remained silent. Page 11 of 25
The men were then arrested, told of their constitutional rights and privileges, handcuffed and placed in the back of one of the police vehicles. The plant-like material was then place in the tray of one of the police vehicles. (vii) Thereafter, P.C. Nanan and other officers proceeded into the forest where they discovered a portion of land cultivated with what appeared to be marijuana plants and they proceeded to destroy same; (viii) The party of officers then returned to the Southern Division Task Force office with the Claimant and Seeberan Roodal. At the station, P.C. Nanan searched the Claimant and found on him a black wallet containing a driver's permit, a black Nokia cell phone and a gold colored ring. These items were lodged with the property keeper at the station and recorded in the Charge Book which the Claimant signed; (ix) In the presence of the two men, he placed the plant-like material in three black bags, weighed them and placed his markings on them. (x) He again cautioned the Claimant and Mr. Roodal and informed them of their constitutional rights and privileges. The Claimant requested a phone call and he was allowed to make same; (xi) P.C. Nanan charged the Claimant and Mr. Roodal with the offence of possession of marijuana for the purpose of trafficking; (xii) On the 13th May 2009, the Claimant and Mr. Roodal were taken to the Rio Claro Magistrates Court where they appeared before the Magistrate and were denied bail and remanded into custody. Analysis of the Evidence 49. In my evaluation of the evidence, I am guided by the judgment of the Privy Council in Horace Reid v. Dowling Charles and Percival Bain, Privy Council Appeal No. 36 of 1987 where it was emphasized that where the Court is confronted with an acute conflict of evidence, while the impression which the evidence makes upon the trial judge is of the greatest importance, it is not the only matter to be taken into account: Page 12 of 25
"... In such a situation, where the wrong impression can be gained by the most experience of judges if he relies solely on the demeanour of the witnesses, it is important for him to check that impression against contemporary documents, where they exist, against the pleaded case and against the inherent probability or improbability of the rival contention, in the light in particular of facts and matters which are common ground or unchallenged, or disputed only as an afterthought or otherwise in a very unsatisfactory manner. Unless this approach is adopted, there is a real risk that the evidence will not be properly evaluated and the trial judge will in the result have failed to take proper advantage of having seen and heard the witnesses." The Claimant's Evidence 50. Under cross-examination, the Claimant remained unshaken in his evidence that he was alone at the camp when the police arrived and that he was there as a watchman for PR Contracting at their construction site. He also denied steadfastly that there was marijuana on the floor of the camp where he was found. He insisted that he had $2,618 in his wallet when he was searched and his wallet was taken from him at the camp. When confronted with the fact that he signed the Charge Book which referred only the wallet, the cell phone and the ring but not to any cash, his response was: "I am seeing where it says property seized. I see my signature. I see one black wallet, one Nokia cell phone and one gold color ring. They took out my pay slip and $2,618 from my wallet. By signing this, I was not saying this was all that was taken from me. I am sure they took my money and pay slip from my wallet." 51. However, the Claimant failed to adduce any evidence from his former employer, PR Contracting to corroborate his evidence that he was a watchman at the construction site and that he had been paid $2,618 three days before and had been given a pay slip. In his witness statement, the Claimant said, "I lost my job due to this wrongful arrest and my previous employers refuse to meet me even to give evidence I need about my employment to the court." When questioned about how he came to know that he had lost his job, he stated that "the guys who used to check me told me that I lost my job. I did not hear this from the boss. After I got out of jail, I never went back to my job." This evidence is Page 13 of 25
materially different from his witness statement in the sense that it demonstrates that the Claimant never attempted to return to his job and did not attempt to get his former employer to give evidence on his behalf. 52. The Claimant also failed to call his co-accused, Mr. Roodal, to corroborate his evidence that he was not in company with him at the camp when the police entered the camp and that there was no marijuana on the floor of that camp. When asked why he did not bring the co-accused to give evidence on his behalf, the Claimant said, "I never told him I was bringing case... I never tried to bring him to court." 53. The Claimant pleaded that by reason of the charge being laid against him, his reputation had been harmed, he had suffered mental anguish, he was prevented from attending to his business and had been put to expense in defending himself. He claimed that he spent $8,000.00 for legal fees in the Magistrates Court and loss of earnings of $1,400.00 per week for 20 weeks amounting to $28,000.00. These allegations were substantially repeated in his witness statement, except that the Claimant said that he spent $10,000.00 to have Mr. Nanan defend him and he did not give any evidence with respect to his loss of earnings of $1,400.00 per week. The Defendant's evidence 54. In his witness statement, P.C. Nanan gave evidence that after he opened the door to the camp he entered along with P.C. Agostini and P.C. Forde and that Sgt. Pierre and the other officers entered the camp after them. According to his witness statement, there were twelve police officers in the party which set out to investigate the report. 55. In his witness statement, Inspector Pierre also said that P.C. Nanan, P.C. Agostini and P.C. Forde entered the camp in his presence and "a short while later I then entered the camp with other officers present." 56. However, in the Defence, the Defendant pleaded that P.C. Nanan, P.C. Agostini and P.C. Forde entered the structure and there was no allegation that Sgt. Pierre was present in the camp. Further, in the Station Diary entry for the 12th May 2009, it was recorded that "P.C. Nanan, P.C. Agostini and P.C. Forde entered the camp whilst the other aforementioned Police officers covered the perimeter of the camp...". Page 14 of 25
57. P.C. Nanan also said that after he entered the camp, he identified himself and the other officers to the two men. He asked the men their names and why they were in the camp. The men responded that they were planters. However, the entry in the Station Diary for that day does not include any reference to P.C. Nanan asking the men about their purpose for being at the camp and their response that they were planters. 58. Further, although Inspector Pierre places himself in the camp where he heard and saw P.C. Nanan: a) introduce himself and the other officers; b) tell the men that he thought the plant-like material was marijuana and the offence they were committing; c) caution the men; and d) arrest the men; he does not mention that he heard P.C. Nanan ask the men why they were in the camp or heard their response that they were planters. 59. In his witness statement, at paragraph 10, P.C. Nanan said "we conducted a search of the camp in the presence of the two men" but he did not say that the men were searched at the camp. At paragraph 12, he said he searched the Claimant at the station where he found the wallet, the cell phone and the ring on his person. However, under cross-examination, P.C. Nanan said the Claimant was searched twice, once at the camp and then at the Police Station. When questioned about why he failed to mention that the Claimant was searched at the camp, he responded that he did not mention it because he did not search him at the camp. He also said that he did not see the Claimant being searched but he knew he was searched but he could not say by whom. 60. In his witness statement, Inspector Pierre also said that the camp site was searched but he did not say that the Claimant was searched at the camp. However, he said that prior to returning to the San Fernando Police Station, P.C. Nanan showed him some items he found upon conducting a search of the Claimant which included a black wallet containing a Trinidad and Tobago driver's permit, a black Nokia cell phone and a gold coloured ring. Further, he said he was not present when the search of the Claimant was conducted but he was present when P.C. Nanan made a record in the Charge Book of the items he found on the Claimant. Page 15 of 25
61. In the Defence, the Defendant did not plead that the camp was searched or that the Claimant was searched at the camp site. 1 In fact, the first mention of a search of the Claimant is at the Southern Division Task Force 2 where P.C. Nanan in the presence of P.C. Forde searched the Claimant and Mr. Roodal and a wallet containing a Trinidad and Tobago's driver's permit and a black Nokia cell phone were found on the Claimant's person. 62. Further, the Station diary entry for the 12th May 2009 does not refer to a search of the camp or the Claimant at the camp. 63. In the Defence, the Defendant denied that any of the officers stole $2,600.00 from the Claimant. Under cross-examination, P.C. Nanan stated that the police did not find $2,618 in the Claimant's wallet. However, P.C. Nanan said he did not search the Claimant or see him being searched. 64. The Defendant did not call P.C. Agostini or P.C. Forde, both of whom were present at the camp, to give evidence to corroborate the evidence of P.C. Nanan as to what transpired when the officers entered the camp on the morning of 12th May 2009. P.C. Nanan explained that when he laid the information he only cited P.C. Forde as a witness but he never made an effort to get a statement from him because sometime after in 2009 P.C. Forde abandoned his work as a police officer and left the country. 65. Under cross-examination, P.C. Nanan said he attempted to interview the Claimant and Mr. Roodal but they were uncooperative. When asked where he attempted to interview the men, he said he thought it was at the Task Force Office. However, there was no mention of any such attempt to interview the Claimant either in the Defence or in the witness statement of P.C. Nanan and there was no note in the station diary of any such attempt. 66. Inspector Pierre admitted under cross-examination that, for the purposes of preparing his witness statement in July 2013, he refreshed his memory from the station diary notes, although he was not the author of any of those notes. 1 (see paragraph 4 (vii), (viii) and (x) of the Defence) 2 (See paragraph 4 (xi) of the Defence Page 16 of 25
Findings 67. Based on this analysis, on the first two issues, I make the following findings: (i) I believe that only P.C. Nanan, P.C. Forde and P.C. Agostini entered the camp on the morning of the 12th May 2009 and that the other officers, including Inspector Pierre, remained outside the camp. If Inspector Pierre was present in the camp as he said, he would surely have been able to see the Claimant being searched in the camp and he would also have been able to say if P.C. Nanan asked the Claimant and Mr. Roodal why they were there and what was their response. (ii) I accept the Claimant's evidence that he was searched at the camp and that his wallet was taken away from him. I do not believe P.C. Nanan when he says that he did search the Claimant and that he did not see who conducted the search. He was present with P.C. Agostini and P.C. Forde in the camp and, if as he says he did not search the Claimant, he must have been in a position to observe whether P.C. Agostini or P.C. Forde searched the Claimant. (iii)i believe that P.C. Nanan was the person who searched the Claimant at the camp and found the wallet. I come to this conclusion based on the evidence of Inspector Pierre that "prior to returning to the San Fernando Police Station, P.C. Nanan showed me some items he found upon conducting a search of the Claimant which included a black wallet containing a Trinidad and Tobago driver's permit, a black Nokia cell phone and a gold coloured ring" (iv) I accept the evidence of the Claimant that he had $2,618.00 in his wallet when he was searched and his wallet was taken away, despite his failure to call his former employers to give evidence on his behalf. Taking a practical view of the facts, the Claimant had only been working with PR Contracting for two months prior to his arrest and he remained in custody for 138 days thereafter. The charges against him remained pending from May 2009 to May 2011. I consider it quite logical and credible that his employer would have terminated his employment while he remained in Page 17 of 25
custody for such a long time with such serious charges laid against him and that he would not have attempted to approach them to give evidence on his behalf in this matter which was commenced in January 2013. (v) I also accept his evidence that when his wallet was returned to him, the money was missing. In my opinion, P.C. Nanan's failure to mention in the station diary and in his witness statement that the Claimant was searched at the camp and his eventual admission that he was searched at the camp, but not by him, is a thinly veiled attempt to distance himself from the search of the Claimant at the camp site and the discovery of cash in the Claimant's wallet. His evidence that he did not mention the search at the camp because he did not conduct the search but he did not see who conducted the search is just not credible and is contradicted by the evidence of Inspector Pierre. (vi) I accept the evidence of the Claimant that it was only after he protested to the officers about the missing money from his wallet that he was 'planassed' by an officer, arrested and handcuffed to Mr. Roodal in the rear of the police vehicle. (vii) I also do not accept the evidence of P.C. Nanan or Inspector Pierre that the Claimant was found in the camp with Mr. Roodal with a heap of marijuana on the floor of the camp. I prefer to accept the evidence of the Claimant that he was alone in the camp when the officers came there. In my opinion, the arrest of the Claimant and the laying of the charge of possession of marijuana for the purposes of trafficking was a fabrication by P.C. Nanan to cover the fact that he had searched the Claimant, taken possession of his wallet and relieved him of the cash contained therein. I also do not believe P.C. Nanan when he said he asked both men why they were in the camp, they responded that they were planters or that he attempted to interview them and they were uncooperative. 68. Accordingly, I have come to the conclusion that, on the balance of probabilities, the Claimant has proved that (a) there was an absence of reasonable and probable cause for P.C. Nanan to lay the charge against him; and (b) P.C. Nanan acted maliciously in that he Page 18 of 25
was actuated by an improper motive in instituting and carrying on the proceedings against him. III. Did the Claimant suffer damage? IV. Whether or not in all the circumstances of the case aggravated and/or exemplary damages ought to be awarded to the Claimant? 69. Having found that the Claimant has proved that P.C. Nanan lacked reasonable and probable cause to lay the charge against him and that in so doing he acted maliciously, I now turn to the issue of damages. Damages in cases of malicious prosecution are awarded under three (3) heads: (i) Injury to reputation-- to character, standing and fame. (ii) Injury to feelings-- for indignity, disgrace and humiliation caused and suffered. (iii) Deprivation of liberty---by reason of arrest, detention and/or imprisonment. Injury to reputation 70. There was no evidence before me at the trial that, prior to being arrested and charged, the claimant had ever been convicted of a criminal offence. According to the decision of the Privy Council in the case of Terrence Calix v The Attorney General of Trinidad and Tobago 3, this makes him at that time a man of good character. He was prosecuted for an extremely serious offence, that is, possession of marijuana for the purpose of trafficking. Undoubtedly, for a man of good character, the laying of such a charge would cause severe damage to his reputation. Injury to feelings 71. I am of the view that to be deprived of liberty in circumstances where P.C. Nanan fabricated the charge laid against the claimant must have caused great suffering and 3 [2013] UKPC 15 Page 19 of 25
emotional hurt to the claimant. From the moment the claimant enquired about his missing money he was 'planassed' by a police officer with a cutlass. Thereafter, he spent 138 days in prison which must have been a horrendous experience for the Claimant. With respect to the prison conditions, the Court of Appeal in Thaddeus Clement v The Attorney General of Trinidad and Tobago 4 noted that the humiliation and indignity to which citizens are subjected in the Remand Yard remain a blot on our civility and humanity and on our democratic ideals. It is deplorable. Deprivation of liberty 72. The claimant in this case endured a loss of liberty of 138 days. According to Lord Kerr in Terrence Calix, the granting of bail on the 1 st October, 2009 does not relieve the prosecutor s liability and the prosecutor remains liable for the damages caused by his setting the prosecution in motion. 5 In light of the guidance provided by Chief Justice de la Bastide in the case of Millette v Mc Nicholls 6 the length of imprisonment is not the only factor this court found relevant under this head. Other relevant considerations under this head are the initial shock factor given that it was the claimant s first time in prison and the conditions of detention. In Millette v Mc Nicholls 7 Chief Justice de la Bastide advised that judges approach the assessment of damages in cases like this in the round and that judges need to be careful not to divide the award into compartments for initial shock length of imprisonment and so on, but rather to ensure that all the factors be taken into account and an appropriate figure arrived at. 73. The Claimant would have spent the night of 12th May, 2009 in prison, which constitutes his first initial shock. On 13th May 2009, he was taken to the Rio Claro Magistrates Court where bail was denied and he was remanded in custody. He then spent 138 days in custody which would have resulted in a second initial shock. 8 4 Civil Appeal No. 95 of 2010 5 [2013] UKPC 15 at para 23. 6 Civ. App. No. 14 of 2000. 7 ibid 8 Thadeus Clement v The Attorney General of Trinidad and Tobago Civil Appeal No. 95 of 2010 Page 20 of 25
Aggravating Factors 74. Over this period of incarceration, the claimant was made to languish in a prison cell that was crowded, filthy, engulfed with offensive odors and he was made to sleep on the floor. In considering what the Claimant experienced while in prison, I bear in mind that the claimant s suffering came about as a result of the fabrication by P.C. Nanan of this charge against him because he enquired about moneys missing from his wallet after he was searched at the camp. Accordingly, I am of the opinion that the Claimant should be entitled to an uplift in the award of damages to take account of these aggravating factors. Special Damages 75. The claimant has claimed special damages for loss of income for the period of 14 weeks at $1400.00 per week and for legal fees in the sum of $8000.00. The total amount of special damages being claimed is $36,000.00. 76. It is well established that the burden of proof regarding special damages is on the claimant, who is required to prove the special damages that he pleads. Documentary evidence is usually required for such claims to be allowed. Archie, J.A. (as he then was) in the case of Anand Rampersad v Willies Ice-Cream Ltd 9 stated as follows: The rule is that the plaintiff must prove his loss. The correct approach is as stated by Lord Goddard C.J in Bonham Carter v Hyde Park Hotel [1948] 64 Law Times 177: Plaintiffs must understand that if they bring actions for damages, it is for them to prove their damage, it is not enough to write down the particulars, so to speak, throw them at the head of the court saying this is what I have lost, I ask you to give me these damages. They have to prove it. 77. However, the claimant in this case has failed to produce any documentary evidence of his legal fees and loss of income. In Great Northern Insurance Company Limited v Johnson Ansola 10, the Court of Appeal concluded that an absence of documentary evidence to support claimant s viva voce evidence on special damages is not necessarily conclusive against him but rather it is one factor to consider, especially in cases where the 9 Civil Appeal 20 of 2002 10 Civ App 169 of 2008 per Mendonca J.A. at... Page 21 of 25
relevant evidence is unchallenged and which, but for supporting evidence, the Judge was prepared to accept. In these circumstances, the Court should be slow to reject the unchallenged evidence simply and only on the basis of the absence of supporting evidence. There should be some other cogent reason. 78. In the circumstances, despite the claimant s failure to produce any documentary proof of his legal expenses and monthly income, I am satisfied that the claimant incurred legal expenses. The record of the Magistrates Court proceedings expressly stated that the Claimant was represented by Mr. Nanan, Attorney-at-Law, and this evidence was not challenged on cross examination. However, there was a discrepancy between the amount claimed in the Statement of Case and the amount stated in the Claimant's witness statement. I am of the opinion that the amount of $8,000.00 was a reasonable sum for legal representation of the Claimant on such a serious charge over the period 2009 to 2011 and I am prepared to award this amount to the Claimant. 79. With respect to the claimant s claim for loss of income, however, although I accept the Claimant's evidence that on 12th May 2009 he was a watchman for PR Contracting at Charuma Road and that he had $2,618.00 in his wallet when he was searched by P.C. Nanan, he has not given any evidence whatsoever in his witness statement to support this claim. Accordingly, based on the lack of evidence to support this claim, I find that the Claimant is not entitled to recover any amount for loss of earnings. 80. Comparable Awards for general damages (i) Gerald Rampersad v The Attorney General 11 a decision of Madame Justice Dean-Armorer, delivered on the 21 st July 2014. An award of $160,000.00 in damages was made in circumstances very similar to the present case. She found that the officers involved fabricated a charge for possession of marijuana for the purposes of trafficking against the claimant and also awarded an additional $5,000.00 for exemplary damages to reflect the court s disapproval of such conduct by servants of the state. The period of detention was eight months. 11 HCA No 2009-04698 Page 22 of 25
(ii) Ted Alexis v The Attorney General of Trinidad and Tobago 12 a decision of Justice C. Kangaloo (as he then was) delivered on the 17th March 2008. The claimant was charged with possession of drugs and remained imprisoned for 2 ½ months. He was awarded $100,000.00 for false imprisonment, malicious prosecution and aggravated damages and $25,000.00 as exemplary damages. (iii)in Thaddeus Clement v The Attorney General of Trinidad and Tobago 13, delivered on 31st July 2013, an award of $160,000 was made by the Court of Appeal for malicious prosecution. The Claimant was arrested on the 23rd October 2004 who accused him of robbing someone. He was never informed of his right to retain and instruct without delay a legal adviser of his choice. No attempt was made to verify his explanation of his whereabouts at the time of the alleged robbery. He was taken from the Siparia Police Station to the San Fernando Police Station where he was forced to sign a document under threat of violence. He was then charged with robbery and taken before a Magistrate on 25th October 2004. He was then taken to the Remand Yard where he remained until 29th October 2004. During his period of detention, the conditions were cramped, unsanitary, overcrowded, smelly, and there was no provision for sleeping or privacy in relation to personal hygiene and ablutions. He attended court on 8 occasions over a two and a half year period before he was discharged. The virtual complainant did not appear on any of the dates of hearing and the prosecution was not ever ready to proceed. Award of general damages 81. In light of these decisions and considering the injury to reputation, feelings and as a consequence of the loss of liberty suffered by the Claimant, together with an additional uplift for aggravating factors, I consider an award of $90,000.00 as general damages for malicious prosecution to be appropriate in this case. Following the guidance provided by 12 HCA No 1555 of 2002 13 Civil Appeal No. 95 of 2010 Page 23 of 25
de la Bastide C.J. in Bernard v Quashie 14 a single figure is awarded for all heads of compensatory damage, including aggravated damages. Exemplary Damages 82. In Rookes v Bernard 15, Lord Devlin stated that exemplary damages may be awarded in circumstances where the conduct by servants of the government can be viewed as oppressive, arbitrary, or unconstitutional." Police officers acting in the course of their employment are deemed to be servants of the State. Accordingly, having regard to my earlier findings, I will make an award of exemplary damages of $15,000.00 to reflect the court s disapproval of police officers fabricating charges against citizens to disguise their dishonesty. Summary 83. In the circumstances, I will make the following awards of damages in favour of the Claimant: (i) Special damages of $8,000.00; (ii) General damages of $90,000.00, inclusive of aggravated damages; (iii)exemplary damages of $15,000.00 Interest 84. Section 25 of the Supreme Court of Judicature Act, Chap 4:01 gives the Court a discretion to include in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of judgment. 85. In the exercise of my discretion, I am of the opinion that the appropriate rate of interest on general damages should not be based on the rate specified in the Remedies of Creditors Act. Adopting a similar approach to that taken by this court in Sean Wallace v 14 Civ. App. No. 159 of 1992 15 [1964] AC 1119 at 1226 Page 24 of 25
The Attorney General of Trinidad and Tobago 16, I consider that the court is entitled to take into account the prime lending rate that is applicable from time to time. This Court takes judicial notice that the prime lending rate issued by the Central Bank of Trinidad and Tobago as at 14th October 2014 is 7.5%. In those circumstances I consider that an appropriate rate of interest on the general damages should be 9% which I will award from the 31st January 2013 to the date of judgment. I will also award 6 % on the special damages from the 23rd May 2011, the date of his discharge, to the date of judgment. There will be no award of interest on the award of exemplary damages. Costs 86. In my opinion, the Claimant is entitled to an award of costs determined in accordance with Rule 67.5 of Civil Proceedings Rules 1998. This Rule provides that the costs payable should be based on the value of the claim which in the case of a claimant is the amount agreed or ordered to be paid. Therefore, I will order the Defendant to pay to the Claimant the costs to be determined in accordance with Appendix B and based on the amounts awarded, inclusive of interest: Leriche v.francis Maurice 17. Dated this 15 th day of October 2014.. Judge. 16 Claim No.: CV2008-04009 17 Privy Council Appeal No 25 of 2004 Page 25 of 25