THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE SUB-REGISTRY, SAN FERNANDO No. CV 2008-01274 BETWEEN DILLON HAYNES Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Defendant Appearances: Mr. Haresh Ramnath for the Claimant Ms. Karlene Seenath instructed by Nairob Smart for the Defendant Dated the 6 th of March 2014 Before The Honourable Mr. Justice Devindra Rampersad JUDGMENT Page 1 of 26
Contents Introduction... 3 The Case... 3 Issues... 5 The Claimant s evidence... 5 Dillon Haynes... 5 Cross Examination... 7 The Defendant s evidence... 8 Wendell Manohar... 8 Cross examination... 9 Richard Smith... 9 Cross examination... 11 Marlon Mendoza... 11 Cross examination... 12 Dhanraj Malloo... 12 Cross examination... 13 Anand Bissoon... 13 Submissions... 13 Claimants submissions... 13 Defendant s submissions... 14 The law involved... 16 The Seizure and Retention of the Goods... 16 Standing Orders of the Trinidad and Tobago Police Service... 18 Standing Order 26... 18 Owner/Ownership... 20 The resolution of the case... 20 Items unaccounted for... 25 The Order:... 25 Closing comments:... 26 Page 2 of 26
Introduction 1. On 9 August 2007, police descended upon the home of the claimant and removed a number of personal items and vehicles which the police contended that they had reasonable grounds to believe were stolen items. Those items were taken and retained by the police. This action was brought by the claimant for the return of his personal items and vehicles and for damages in respect of the failure to return several items which the police have been unable to account for. 2. Some of the personal items were returned on 13 October 2009 and then some others on 14 April 2011. Seven of the items which were detained included motor vehicles, five of which were returned on the eve of the trial in this matter. 3. The parties consented to the trial being conducted on the issue of liability only in light of the great number of items which were involved and which would have caused a trial on both liability and quantum to have been exceedingly long as the claimant would have had to have called a multitude of witnesses on the issue of quantum. The Case 4. The claimant brought this action pursuant to the State Liability and Proceedings Act Chapter 8:02 of the laws of Trinidad and Tobago. The claimant, who was involved at the time in the business of money lending, claims that on 9 August 2007, several police officers from the Gran Couva Police Station and the Criminal Investigation Department of San Fernando entered his business place and home and took possession of several items. The items were comprehensively detailed in approximately 9 pages of the statement of case amounting to a total value of $888,917.00. The claimant says that as a consequence, he has lost the value of the said items and has been unable to carry on his business and has been deprived of the profits that he ordinarily would have made. Particulars of loss and damage were pleaded which included the said value of the items, and loss of earnings of $10,125.00 per week from the 9 th of August 2007 and continuing. In the alternative the claimant says that he was, and is, the owner of the items and is entitled to possession of the items. The claimant says that by letter dated 13 March 2008, he requested the return of his items and has received no response. The claimant therefore claimed for damages for trespass to goods, alternatively damages for detinue and/or conversion, aggravated and/or exemplary damages, interest and costs. 5. The defendant on the other hand admitted that on 9 August 2007 several police officers entered the claimant s premises and took possession of a number of items the items which were identified in the claimant s list in his statement of case were listed in just under half of a page of the defence suggesting that there was no consensus on the balance Page 3 of 26
of the items listed in the statement of case. The defendant averred that the police officers acted lawfully in the performance of their duties and were justified in seizing the items. The defendant said that on the date in question, one PC Manohar together with one Corporal Harrysingh, one PC Mallo and a party of officers proceeded to the home of the claimant where they executed a search warrant for stolen articles relative to a report of house breaking and larceny. During the search many items were found, including a firearm believed to be holding ammunition, and a quantity of electronic items for which the claimant had no receipt. The defendant says that claimant remained silent when he was informed that it was the opinion of the officers that the items were stolen or unlawfully obtained. According to the defendant, the search also revealed several motor vehicles for which the claimant could not provide proof of ownership. The defendant said that as a result of enquiries made, PC Manohar had reasonable cause to suspect that the questioned items did not belong to the claimant but were stolen or unlawfully obtained. Subsequent to this search, on 15 August 2007 one PC Mendoza went to the garage of one Egbert Rouse and seized two motor vehicles PBR 5502 and PBH 3548 - one of which had a chassis number that was alleged to have been tampered with. The claimant was subsequently arrested for a number of offences including possession of a firearm, possession of ammunition and receiving stolen articles. 6. The defendant on this basis denied having unlawfully converted or detained the claimant s goods or any goods lawfully owned by the claimant and denied further that the claimant was entitled to any relief sought. 7. In reply to the defence the claimant says that he informed the police officers that several persons pawned items with him as he was a moneylender and that the warrant had a list of items which were pawned during the same week. The claimant says that he handed over those listed items to the police. He claims that he informed the police that for some of the items he had promissory notes and for some he had receipts. There were also some items which the claimant said either belonged to him or which did not have receipts. The claimant says that because the promissory notes were taken by the police officer he is unable to recover monies owed on them to him by clients but these were not identified. The claimant denies that the defendant seized all of the vehicles referred to in paragraph 5(h) of the defence from his premises and instead claims that there were only two vehicles on the compound on that date in question, being PBT 9743 and TBE 2118. The other vehicles PCB 5371, PBJ 1714 AND PBG 4005 - according to the claimant, were leased and the claimant was made to call them in. The claimant insisted that he had documents relating to the ownership of these vehicles and that the police officers took some of the same documents but did not pay attention to their contents. The claimant went on to explain his manner of obtaining possession and/or his title of and in the seven vehicles. The claimant says that he was accused of bribing the Couva police and paying bandits to rob people and he denied these accusations. The claimant admits that he was arrested but says that on 1 December 2008 the receiving stolen articles cases were Page 4 of 26
Issues dismissed by Magistrate Ayers-Caesar and on 22 January 2009 the arms and ammunition charges were dismissed. 8. The parties agreed that the trial would be on liability alone. 9. An agreed statement of issues was filed on 30 April 2012. The issues for determination were listed as follows: 9.1. Whether the State is liable to pay compensation to the claimant for the items seized? 9.2. Whether the State is liable to pay compensation to the claimant for items seized on 9 August 2007 and returned on 13 October 2009 and 14 April 2011? 9.3. Whether the lists provided by the State in the undated letter from Richard Smith to Ms. Karlene Seenath and a letter dated the 20 August 2009 from Mr. Smart to Mr. Ramnath disclosed all the items seized and returned? 9.4. Whether the defendant had reasonable and probable cause to seize and detain the subject articles from the claimant? 9.5. Whether the defendant ever seized and detained the articles still claimed by the claimant in his exhibited list? The Claimant s evidence Dillon Haynes 10. The claimant filed a witness statement on 3 April 2012. He was the sole witness on liability for the claimant s case. He stated that in 2007, he was in the business of moneylending and that as part of his moneylending business he would hold items as security for loans. The values of these items were ascertained from jewelers and others. 11. On 9 August 2007, between 4:30 pm and 5:30 pm, he arrived at his business place and he was met by police officers in plain clothes. He said in particular officers Bacchus and Harrysingh asked him questions about some men who brought items for him between Monday and Tuesday of that same week. He says that he proceeded to show them the items that were delivered. In the meantime, one officer Sahadeo stopped his auto mechanic who was driving one of his B15 motor vehicles saying that the vehicle was stolen. Page 5 of 26
12. The claimant says that officer Harrysingh searched him and took his three mobile phones and informed him that anything that was seized would be written down and that he would be given a copy of the list of items taken. It is his evidence that there were more than twelve officers in plain clothes at his house at this time and that he was taken to his bedroom by officer Harrysingh who emptied the draws and took jewelry belonging to the family. The claimant says that he was then taken to the living room where he showed the police officers where he had other jewelry, cell phones, cameras and video cameras. These items were also seized. According to the claimant, at the same time, officers were taking things from the front rooms and in the garage and he overheard officer Harrysingh on his phone saying that he made a big buss (sic) in Couva and needed to transport items. He says that when requested of him, he showed officer Harrysingh the receipts that he had for certain items as well as statements, receipts and promissory notes. He says that sometime after, officer Manohar came into the living room stating that he found a gun and he was placed in handcuffs and later taken to San Fernando CID where he was placed in a cell with about eight other men. The claimant says that he was not charged nor was he allowed to call his family or lawyer. The claimant says that he was detained until 13 August 2007 and he was allowed to go to court on two charges - one for receiving of a welding machine and grinder and the other of receiving of stolen goods from Gran Couva. The gun was not mentioned until the claimant appeared before the San Fernando court. 13. The claimant claims that he appeared twelve times on the matter of the welding machines and grinder before it was dismissed on 1 December 2008. He says that appeals were also made for officer Harrysingh to come to court to answer questions about the items seized but that there was no appearance and that matter was dismissed on 26 June 2008. By letter dated 13 March 2008 to the Commissioner of Police, a request was made for the return of the items. They were not returned. 14. On 8 April 2008 the claimant initiated this action and on 13 October 2009 the police returned to him 55 items mainly tools and electronics. The electronic items, he said, were of no use, as they were not working, parts were missing and some were not repairable. A further 60 items were returned on 14 April 2011 and, of those, none of the cell phones were working and it was not economical to repair them. The claimant annexed a list of the items returned. The claimant caused another letter dated 7 th June 2011 to be sent to the defendant listing seized items which were not returned to him. He says by undated letter to Ms. Karlene Seenath, officer Smith attempted to account for the items and provided a list where he identified certain items coloured in black thereon for which there was no record. 15. The claimant says that as a result of the seizure, he was deprived of the use of his items to the value of $888,917.00, he earned $10,125.00 per week in car and equipment rentals and now only earns $4,000.00 and his business was crippled for about 6 months. Page 6 of 26
Cross Examination 16. It was established in cross examination that the claimant was not a licensed money lender at the time. In fact, no moneylender s license was ever produced for him and he admitted that he did not have a valid license at the time. 17. He made reference to a diary in which he kept the information in relation to the items which were allegedly pledged to him but he did not produce it to this court because he did not think it was important. He indicated that he was not in a position to say how many items he was holding as security on the date in question. In any event, he confirmed that none of the items which were seized were items which he was holding for security. 18. He confirmed that he was never given a list of the items which were taken by the police despite their promise to do so but that he had sight of an entry in the station diary some days later. He was shown the original station diary for the 10 th of August 2007 which set out the listing of items allegedly taken by the police. He said that he did not read it before signing it because he did not have his glasses and he just followed the lead of PC Manohar. He did not receive a copy of that entry in the station diary. 19. It is clear to this court to that the claimant was not afforded an opportunity to make a list of the items as they were being taken by the police that day. He said that that the list, which he set out in the statement of case, was compiled by him over the course of 3 months from memory and from his diary. 20. The copies of the certified copies of ownership for the vehicles which were annexed as RS 11 to the witness statement of Richard Smith were shown to the claimant and he acknowledged that none of the vehicles were registered in his name. 21. When shown the list exhibited at E of his witness statement, which was a list set out in a letter from the claimant s attorney at law addressed to attorney at law for the defendant and which was annexed to an undated letter from the defendant s witness Richard Smith identifying what had happened with the retained items, his evidence was as follows: 21.1. The items colored in pink were handed over to him; 21.2. The items at 69, 79, 86 and 93 which were allegedly retained for use in court proceedings were not returned to him despite the fact that those matters were dismissed; 21.3. He refused to accept item number 82 the Stihl 500 edge cutter - because it was run down and in bad condition; 21.4. It was suggested to him that the police had no records of the items which were not shaded as they were not seized. He did not agree that they were not seized. Page 7 of 26
The Defendant s evidence Wendell Manohar 22. Constable Manohar gave evidence on behalf of the defendant. He said that on 8 August 2007 he was on duty at the San Fernando police station where he interviewed several persons who were detained relative to reports of larceny. He received information from one of the individuals that he sold several items that were stolen or obtained illegally. On this basis he said that he conducted enquiries and as a result obtained a search warrant for the premises of the claimant. He said that around 5 pm on 9 August 2007 he went to the claimant s house and informed him that he was in possession of a search warrant to search his home for stolen items. He said that he read and showed the warrant to the claimant and cautioned him. He said that he and other officers searched the claimant s premises, including an annexed video store, and that PC Malloo informed the claimant that they were of the opinion that the items were stolen. The claimant allegedly said that he purchased the items from Kevin. He said that during the search he also found a Smith and Wesson firearm and when he enquired about the same, the claimant informed him that it was his and that he did not have a gun license as it was hard to obtain one. He said that he arrested the claimant for the offence of possession of arms and ammunition and cautioned him. 23. This witness stated that he asked the claimant whether or not he had any receipts for the large quantities of electronic items and he stated that he did not. He said that the items were seized along with jewelry, heavy duty equipment and five motor vehicles. He said that he examined the chassis number of the vehicles found and they appeared to have been tampered with and he informed the claimant of the same and cautioned him. All the items were taken to the San Fernando police station. Officer Manohar further stated that on 10 August 2007 he made notes in the station diary relating to the arrest of the claimant and the seizure of the goods in the presence of Cpl Harrysingh and he allowed the claimant to read the entire entry. According to the witness he together with Cpl Harrysingh, PC Malloo and the claimant signed several places on that entry relative to the utterances made by the claimant. The items were then handed over to Cpl Harrysingh who was the property keeper. The witness said that he caused notice to be sent out through the media to invite victims of larceny to attend the police station to assist with inquiries. He stated that several persons came to the San Fernando police station in connection with the same and identified some of the seized items as their own. 24. On 13 October 2009 this witness informed Sgt Smith that his investigations in respect to some of the items were exhausted and those items were returned to the claimant. On 7 July 2011 he says that he was instructed by Sgt Smith to submit TBE 2118 to the Forensic Science Center for examination of its chassis and engine number and he did so. Page 8 of 26
On 14 April 2011 he said that he further informed Sgt Smith that enquiries with the property were totally exhausted and further items were returned to the claimant. Cross examination 25. Mr. Manohar was referred to items mentioned at paragraph 4 of the defence and it was suggested to him that what was said there at paragraph 4 was not correct. The basis of this suggestion was the list annexed at exhibit C to the claimant s witness statement, which was a list allegedly prepared on 13 October 2009 for and on behalf of the police of items delivered to the claimant on that date. Despite the contention in the defence that the items listed at paragraph 4 thereof would be the only items identifiable from the claimant s list set out at paragraph 3 of his statement of case, it was quite evident that there were several other items referred to in the list at exhibit C which corresponded with items listed in the claimant s statement of case e.g. the items at 1, 2, 6, 21, 26, 46, 48, etc. He therefore conceded that the list at paragraph 4 of the defence was not correct. 26. According to Mr. Manohar, he was the one who had seized most of the items and he prepared the list in manuscript. He said as he moved from room to room and items were seized, the rooms were labeled and a list was prepared of the items seized from that particular room. That list cannot be found and no mention of making this list was set out in his witness statement. The list was in a desk diary and it was signed by the claimant but he does not know where the diary is. According to him, the station diary list was prepared from the manuscript list. 27. It became quite obvious in his cross examination that there were discrepancies in the list set out in the station diary when compared to the lists at WM2, WM3 and WM4, which were typewritten notes of items allegedly prepared from the manuscript in the lost desk diary. 28. It was suggested to him that the items were not advertised until 1 July 2008 which Mr. Manohar said he was not aware of. What he was aware of was that there was an advertisement by radio i.e. it was radioed to the various police stations. No evidence of this was provided and it is difficult for this court to appreciate the efficacy of this type of advertisement, if it is an advertisement at all, in relation to the public. Richard Smith 29. This witness stated that in August 2009 he was detailed to be the custodian of certain property seized from Dillon Haynes. This duty was handed over to him from Cpl Harrysingh and his function as custodian would have been to secure the said property and Page 9 of 26
account for it whilst in the police custody. Further, he stated that he had to make the necessary arrangement with the forensic science to have any exhibits submitted. The witness stated that the property was secured at the San Fernando Police Station in a strong room and the vehicles were stored on the compound of the San Fernando police station. 30. The witness said that several media releases were sent inviting person who had property stolen from them to visit the San Fernando Police Station and from time to time he had to arrange for the items to be viewed by victims who would visit the station. Mr. Smith says that on 13 October 2009 he had a conversation with PC Manohar and was informed that the investigation with respect to the items were exhausted and as a result he communicated with the claimant and returned some of the seized items to him. He says that the claimant signed a receipt and the same was exhibited. The witness says that at that time the vehicles were not returned as they had to be analyzed by the Forensic Science officer. He then detailed the dates that these same vehicles were examined. 30.1. On the 29 th of August 2007, he caused the examination of PBH 3548 by the scientific officer in respect of which he received a Certificate of Analysis report dated 9 December 2007 which stated that the chassis number of the vehicle had been found to be tampered with. He alleges that the vehicle was traced by Constable Bissoon to be PBA 7337 allegedly stolen from Kirk Anthony Rogers and the vehicle was handed back over to Mr. Rogers around 1 July 2008; 30.2. Around 13 September 2007, he caused the analysis of PBT 9743 which is the subject of a Certificate of Analysis dated 4 October 2007; 30.3. Around 5 August 2009, he caused the analysis of PBR 5502 which indicated that the chassis number was tampered with; 30.4. On 18 August 2009, he caused the Scientific Officer to examine PCB 5371 and she gave him a Certificate of Analysis dated 8 September 2009 which stated that the engine and chassis number will found to have been tampered with; 30.5. On 7 July 2011, TBE 2118 was examined and found to have the chassis number tampered with; 30.6. On or about 13 December 2011, PBG 1714 was inspected and examined and a Certificate of Analysis dated 29 December 2011 was produced showing that even though the engine number was not tampered with, the visible number stamped on the firewall was not the original chassis number and there was evidence to show that a portion of the firewall was cut out and replaced with another portion bearing the visible number; 30.7. On 13 December 2011, PBG 4005 was examined and the Certificate of Analysis revealed that the chassis number was tampered with. Page 10 of 26
31. Evidently, there were title issues with all of the vehicles which were seized in August 2007. Notwithstanding that, however, 5 of the 7 vehicles were returned to the claimant on 14 May 2013 just before this trial began. 32. Mr. Smith says that on 14 April 2011 PC Manohar told him that enquiries with the property were completely exhausted and as a result he communicated with the claimant and he returned more of the claimant s items and the claimant again signed a receipt which was exhibited. The witness said that to date all of the property that was handed over to him in August 2008 was returned to the claimant save for the seven vehicles because they were at the time of the witness statement still in the process of concluding enquiries on the same. Cross examination 33. Mr. Smith was not aware that all of the matters against the claimant had been dismissed. 34. Further, he gave evidence that he only took over custody of the property seized from the claimant in August 2009. He was not able to say if there was any record of these items in the property register and he did not make any entry in the property movement register. All he received was a list. 35. It was very interesting that Mr. Smith, for the first time, in cross examination, indicated that there was allegedly a mandate from the senior superintendent not to place the items with the property manager. That mandate was never produced nor was it ever verified by Mr. Smith. Further, when he took over custody of the items there is no mention that he verified them with the list that he was given. 36. Mr. Smith also accepted that there were errors on the lists meaning that there were items which were mentioned in the list exhibited as C to the claimant s witness statement which were not mentioned in the station diary listing. Marlon Mendoza 37. This witness stated that on 13 August 2007 he had a conversation with PC Manohar in respect of Dillon Haynes. He says that he was aware of the search that was made at the home of the claimant at that time. He said he had a further conversation with Cpl Harrysingh regarding information as to where the claimant may have other stolen vehicles. On 14 August 2007 the witness said that he obtained a search warrant to search the premises of Egbert Rouse for stolen motor vehicle parts. On 15 August 2007 at 3:05 pm the witness said that he, Cpl Harrysingh and a party of officers went to the home of Egbert Rouse where he inspected the vehicles and found that the chassis numbers on the Page 11 of 26
B15 Sentra PBR 5502 and Honda Civic PBH 3548 were tampered with. Both vehicles were seized. 38. The witness says that he interviewed Egbert Rouse at the San Fernando Police station and was informed that both cars belonged to Dillon Haynes, the claimant. The witness says that he made further enquiries and found that the Honda Civic vehicle bore a false registration number. He further states that on 29 August 2007 he was present when scientific officer Paula Waheed examined the vehicle at the San Fernando police station and confirmed that the chassis number was tampered with but the engine was original and intact. The claimant said that public announcements were made in the local media inviting persons who lost vehicles of a similar make and model to visit the police station to view the vehicles and eventually one Kirk Anthony Rogers came to the police station and after he was interviewed and identified the Honda Civic as a car stolen from him he was handed over the vehicle. The witness says that one Indarjit Rampersad was interviewed concerning the B15 motor vehicle. Mr. Rampersad bore a key that easily opened the doors and trunk of the same vehicle but was unable to give a written statement at the time he identified the vehicle and was not able to return to give the same until November 2011. The B15 vehicle is still in the possession of the police and is secured at the St. Madeline police station. Cross examination 39. Mr. Mendoza admitted that he returned PBH 3548 to Mr. Kirk Anthony Rogers despite the fact that the forensic report indicated that the engine number had not been tampered with and that it was not the same engine number for the vehicle PBA 7337 which was allegedly the correct number and registration for this vehicle. 40. With respect to the other vehicle which he had knowledge of PBR 5502 it was apparently identified by one Mr. Indarjit Rampersad who never came back to give a statement. Mr. Mendoza said that he is uncertain as to whether charges were laid against the claimant and to whom the vehicle should be returned. Dhanraj Malloo 41. Mr. Malloo is a police corporal who investigated a report of a housebreaking and larceny at the home of one Errol Ramsaroop and allegedly found in the claimant s house a highspeed blender, sewing machine, a Sharp 20 inch color television, and a green colored bed sheet set which allegedly belonged to Mr. Ramsaroop. Those items were seized and were identified by Mr. Ramsaroop as his. The items were subsequently returned to Mr. Ramsaroop. Charges were laid against the claimant and were dismissed eventually as Mr. Ramsaroop never showed up for the hearing. Page 12 of 26
Cross examination 42. This witness admitted that he never assessed the value of the items and therefore could not say if he could have proven that the claimant had received these goods knowing them to be stolen since he could not have ascertained whether they were sold to the claimant at fair market value. He also accepted that he never issued a warrant for the attendance of Mr. Ramsaroop at the hearing and that, in fact, Mr. Ramsaroop would not have had any incentive to attend that hearing since he had already received the goods. Anand Bissoon 43. This witness also gave evidence on behalf of the defendant. It was his evidence that on 24 February 2007, while he was attached to the Couva Police Station, he interviewed one Kurt Anthony Rogers who reported that he was robbed of his motor vehicle registration number PBA 7337. He said that sometime in 2008 he was contacted by Constable Mendoza and he was informed that a search warrant was executed at the garage of Egbert Rouse and the subject vehicle was recovered bearing the license plate PBH 3548. He said he went to the San Fernando police station where he saw the vehicle. He said that he contacted the victim and confirmed that the victim had positively identified the vehicle. He said that he continued enquiries and interviewed and cautioned the claimant. He later preferred a charge against the claimant at the Couva Magistrate court for receiving a stolen vehicle. The matter was subsequently dismissed. Submissions Claimant s submissions 44. The claimant submitted that there were two issues to be resolved being whether the items that have been returned was done so within a reasonable time and whether the items identified in the letter dated the 7 th day of June, 2011 were actually seized by the Police. 45. On the first issue it was submitted that items were returned on the 13 October, 2009 and these items consisted of about 96 electronic items. It was submitted that a reasonable time for the Police to have completed their investigation would have been 3 months. To have detained these items beyond 3 months would amount to a wrongful detention. The case of Jaroo v The Attorney General of Trinidad and Tobago (2002) 1AC 871 P.C. was relied upon. In that case the Court of Appeal determined that in the absence of appropriate criminal proceedings there would of necessity arise a time beyond which it would be unreasonable to continue to detain the vehicle although it was also determined that it is not possible to state what such a period would be in any given case as certain Page 13 of 26
other circumstances ought to be considered. It was submitted that the reason for the delay in returning items in this matter, according to the evidence of the State, was not that there were criminal proceedings pending but because the Police were conducting further investigation. The claimant says that the onus was on the Police to demonstrate that the continued detention was necessary and they have failed to do so. 46. The claimant submitted that since, according to the defendant, the public was made aware in 2007 of the possibility of the recovery of stolen/loss items, then there is no justification or investigation that can explain why these items were returned more than two years after. 47. The claimant submitted that with regard to the vehicles seized, in the case of Adesh Ramsubhag v- The Attorney General it was determined that one week is more than sufficient for a forensic test to be done on a vehicle. The vehicles were seized from the Claimant in 2007 and all but 2 returned in 2013. The claimant averred that this delay was unacceptable. It was submitted further that there was a clear breach of the Standing Orders made by the Commissioner of Police pursuant to power granted under section 57.1 (a) of the Police Service Regulations Chapter 15:01 as the Police failed to keep accurate records, failed to record items and, up to today s date, have failed to return certain items which they admitted that they had seized. 48. With respect to motor Vehicle registration number PBR 5502, it was submitted that unless the defendant can show that Mr. Rampersad has a better claim then this vehicle must be returned to the Claimant. The cases of Jones v- Williams (1837) 2M &W 326, Armory v-delamirie (1722) 93 ER 664, Webb v- Chief Constable of Merseyside Police, Porter v- Chief Constable of Merseyide Police (2000) 1 All ER 209 at page 225, Costello v- Chief Constable of Derbyshire Constabulary (2001) 3 All ER 150 and South Staffordshire Water Co-v- Sharman (1896) 2QB 44 at 45-46 were submitted in support of this proposition. 49. On the second issue the claimant said that the Police cannot be believed and that the Court should find in favour of the Claimant on all the items he listed. It was submitted that on a balance of probability the Claimant s evidence is more credible as the record taken by the Police of the items seized cannot be relied on because based on their own evidence they did not keep a proper record or alternatively did not record all the items that were seized. Defendant s submissions 50. The defendant first submitted on the law. In relation to trespass to goods, it was submitted that this amounted to an unlawful disturbance of the possession of goods by seizure or removal or by a direct act causing damage to the goods. The subject matter of trespass to goods must be a personal chattel which is the subject of lawful possession. Page 14 of 26
The law in relation to detinue and conversion was also discussed. It was further submitted that at common law the police are vested with the power to seize goods which they reasonably believe to be stolen and which are the fruit of crime or form material evidence to prove the commission of a crime and to reasonably detain such goods until either the completion of their investigations or the completion of the trial of those charged with the larceny of those goods. The cases of Thakur Persad Jaroo v. The Attorney General of Trinidad and Tobago P.C. Appeal No.54 of 2000, Chic Fashions (West Wales) Limited v. Jones (1968) 2 Q.B. 299, Ghani v. Jones (1970) 1. Q.B., Chief Constable of Kent v. V and another (1982) 3 AER 462 were submitted in support of this contention. Particular consideration was given to Lord Denning's dicta in Ghani v Jones wherein the requirements for seizure of good by police were set out. 51. It was submitted that the police officers, including PC Manohar, had sufficient or reasonable grounds for believing that the items found were stolen or unlawfully obtained Based on the information received by PC Manohar and having interviewed several persons detained in relation to reports of larceny, one of whom provided certain information in respect of where he sold several items that he stole or otherwise illegally obtained. It was further submitted that PC Manohar and the party of officers had reasonable grounds for believing that the items were the fruit of a crime and that it was reasonable for P.C. Manohar and the party of officers to believe that the person in possession of the items had committed or was implicated in the commission of the crime. The defendant also said that the items were kept longer than was necessary for the police to complete their investigations and that PC Manohar s actions and those of the other officers were lawful at the time. It was submitted further that the evidence of the claimant under cross examination was unreliable and inconsistent. In relation to the seven vehicles that were seized, it was submitted that the claimant provided no evidence that he was the owner of the same vehicles and that in any event the said vehicles referred to therein were returned to the Claimant. 52. With respect to the unshaded items in the document provided by the claimant, it was submitted that the Claimant has not been able to produce for the Court any evidence relative to such items, whether by way of any inventories, lists, receipts, diary entries, witness statements by any parties as to possible ownership of same, or any evidence apart from his verbal evidence. The defendant says that there is no evidence that such items were seized and taken by the police, kept in storage- in police custody and removed by any other party. 53. It was submitted that in the circumstances, the police officers acted in lawful execution of their duty at all material times, and lawfully detained the items for a period of time that was reasonable in the circumstance and that the Claimant is not entitled to any of the reliefs sought herein. Page 15 of 26
The law involved 54. The Police Service of Trinidad and Tobago, like other Police Services globally, is vested with the power to seize property in connection with an unlawful act. This power is given to the police under both the Police Service Act Chapter 15:01 of the laws of Trinidad and Tobago and the Standing Orders of the Police Service. The Seizure and Retention of the Goods 55. It is not disputed that under the common law, police officers are equipped with the authority to seize goods in connection with an unlawful act. The same was discussed in Ghani v Jones [1970] 1 QB 693. In that case Lord Denning outlined certain criteria that ought to be followed in order for goods to be lawfully seized by the police. Lord Denning stated: What is the principle underlying these instances? We have to consider, on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. Honest citizens should help the police and not hinder them in their efforts to track down criminals. Balancing these interests, I should have thought that, in order to justify the taking of an article, when no man has been arrested or charged, these requisites must be satisfied: First the police officers must have reasonable grounds for believing that a serious offence has been committed so serious that it is of the first importance that the offenders should be caught and brought to justice. Secondly. The police officers must have reasonable grounds for believing that the article in question is either the fruit of the crime (as in the case of stolen goods) or is the instrument by which the crime was committed (as in the case of the axe used by the murderer) or is material evidence to prove the commission of the crime (as in the case of the car used by a bank raider or the saucer used by a train robber). Thirdly. The police officers must have reasonable grounds to believe that the person in possession of it has himself committed the crime, or is implicated in it, or is accessory to it, or at any rate his refusal must be quite unreasonable. Fourthly. The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete their investigations or preserve it for evidence. If a copy will suffice, it should be made and the original returned. As soon as the case is over, or it is decided not to go on with it, the article should be returned. Finally. The lawfulness of the conduct of the police must be judged at the time, and not by what happens afterwards. 56. In the local Privy Council decision in Thakur Persad Jaroo v. The Attorney General of Trinidad and Tobago P.C. Appeal No.54 of 2000, Lord Hope, who followed Denning s determination in Jaroo, stated that police officers, when detaining goods, must have had Page 16 of 26
reasonable grounds when they insisted on detaining it.. Second, they had to be in a position to show that its continued detention was reasonably necessary to complete their investigations or to preserve it for evidence. He further noted the case of Malone v Metropolitan Police Comr [1979] 1 All ER 256 at 270 271 and concluded that there is no general power in the police, when they have lawfully seized property which is thereafter not the subject of any charge and is clearly shown not to have been stolen, to retain that property as against the person entitled to possession of it against some uncertain future contingency the police who wish to continue to detain the property must be able to justify their retention of it upon some ground which is clearly ascertainable. 57. It is therefore a requirement that goods which are seized by police be done so lawfully and that the retention of the same be only for a period which is reasonable. As Lord Hope concluded, police officers who wish to retain goods past a relevant period must justify the same. The question to be asked then is what is a reasonable time period? 58. Section 58 (1) of the Police Service Act, supra, is apposite. That section provides as follows: 58. (1) Where any property has come into the possession of the Police Service in connection with any criminal charge or under section 29 of the Pawnbrokers Act, a Summary Court may, on application either by a police officer or by a claimant of the property, make an order for the delivery of the property to the person appearing to the Court to be the owner of it or, if the owner cannot be ascertained, make such order with respect to the property as the Court thinks fit. (2) An order under this section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease. (3) Where property has come into the possession of the Police Service: (a) Under subsection (1); or (b) In respect of which the owner cannot be ascertained and no order has been made with respect to it by a Court, it shall be dealt with as follows: (i) If the property is a perishable article, or its custody involves unreasonable expense or inconvenience, it may be sold as soon as convenient after it has come into the possession of the Police Service; (ii) If the property consists of money, it shall be dealt with as provided in this section with regard to the proceeds of a sale after it has remained in the possession of the Police Service for three months; or (iii) In the case of any other property the same may be publicly sold at auction as soon as possible after it has remained in the possession of the Police Service for three months and has been advertised in two local daily newspapers for three consecutive days. Page 17 of 26
Standing Orders of the Trinidad and Tobago Police Service 59. The police service in Trinidad and Tobago is also governed by certain Standing Orders. According to the very introduction to these Standing Orders, they serve as blueprints for police operations and functions and these Standing Orders seek to provide a manual of general directions geared for the training and re-training of police officers in keeping with the changes attending society as a whole. Section 1 of Standing Order 2 of the Police Service Standing Orders states that the Standing Orders are general instructions issued by the Commissioner of Police from time to time and published for the efficient and effective administration of the service. It is important to note that these Standing Orders are distinct from the Police Service Regulations which is annexed to the Police Service Act as subsidiary legislation. It seems to this court that while the Standing Orders are not in and of themselves legislation, the Police Service is bound to operate within the confines of these orders for the reasons given in the introduction and set out above. 60. The court would move on to discuss the Standing Orders which operate in relation to property. Standing Order 26 61. Section 1 of Standing Orders 26 refers to property as any animal, article or thing which has come into the possession of the police, either through finding, seizure or other lawful means. 62. There is a requirement under section 6 of the same Standing Order 26 that certain registers are to be kept for the recording and lodging of property at Divisional Headquarters including Criminal Investigations Department or Police Stations. These registers include: 62.1. Found Property Register 62.2. Dangerous Drugs Register 62.3. Dangerous Drugs Movement Register 62.4. General Property 62.5. General Property Movement Register 63. Section 7 of the same states: (1) The officers in charge of Divisions and Criminal Investigations Departments shall designate a place in each station/section for safe storage and preservation of property (2) Where in extraordinary circumstances, the storage space for property in any Division becomes inadequate; it shall be the duty of the Officer-in-charge of the division Page 18 of 26
to consult with the assistant commissioner of police in charge of his area to identify a new location for the storage of property. 64. The Standing Orders further places requirements for the security of goods seized and procedure for dealing with various types of property. For the purposes of this case the court must also look at the procedure for dealing with general property. Among the procedure is section 26: 26.(1) The officer in charge of a division and criminal investigations department shall appoint a police officer not below the rank of Corporal to be Property Manager in each station/section under his command. (2) In the case of C grade stations, the second division officer in charge shall, in addition to his other duties, perform duties of property manager. 65. Section 27 defines the duties of the Property Manager. Among his duties are to lodge the property handed over to him in the General Property Register and to secure the property book and the exhibits recorded therein against loss. 66. Section 28 governs how property should be disposed of. Certain types of General Property should be disposed of by public auction which shall be held at least once per year. This included unclaimed property under section 58 (3) of the Police Service Act supra. 67. S.28(b)(1) and (2) goes on to state: (1) Where the ownership of property lodged is not in dispute, it shall be returned to the owner. (2) General property lodged as exhibits may be returned to their owners where possible before the determination of the cases. It is no longer necessary for owners to give a written undertaking to produce such property if required. However they are to be advised that they should retain such exhibits for the production in court as this will constitute the best evidence. 68. Finally, section 38 states that: General property which falls into the following categories shall be disposed of by public auction which shall be held at least once per year: - Vehicles which have come into the custody of the police in pursuance of section 108 of the Motor Vehicle and Road Traffic Act 58:50 1, shall after the expiration of thirty days be dealt with as laid down in section 109(ii) of this Act. - Unclaimed item of property referred to in section 52 of the Police Service Act 2 chap 15:01 - Forfeitures by the courts - Judicial decisions. 1 Which deals with vehicles parked in contravention to the provisions of the Act 2 This should really be s. 58 of the Police Service Act Page 19 of 26
69. A full consideration of the Standing Orders reveals a strong requirement that police officers charged with seizing goods and keeping the same in safe custody must do so diligently. The fact that such detail was placed in the drafting of these orders with respect to property shows the importance which should be placed on property or evidence in the Police Service. Owner/Ownership 70. The principles relating to owners/ownership were dealt with in the setting of a constitutional action by the Privy Council in Jaroo with special reference being made to two common law English Court of Appeal authorities which were cited with approval. Those were Webb v- Chief Constable of Merseyside Police, Porter v- Chief Constable of Merseyide Police (2000) 1 All ER 209; and Costello v- Chief Constable of Derbyshire Constabulary (2001) 3 All ER 150 which established the accepted proposition discussed in Jaroo that:. save so far as legislation otherwise provided, possession, whether obtained lawfully or not, vested in the possessor a possessory title which was good against the world save anyone setting up or claiming under a better title and that, although he at all times knew that the car was stolen, the claimant was entitled to an order for its delivery and to damages. Lightman J, with whom Keene and Robert Walker LJJ agreed, said, at p 1450D, that possession is entitled to the same legal protection whether or not it has been obtained lawfully or by theft or by other unlawful means. The decision in Webb v Chief Constable of Merseyside Police [2000] QB 427 was followed and applied. 3 71. To my mind, therefore, it is incumbent upon the police to return items taken from a person in possession of the items to that person in possession unless there was someone claiming under a better title. In such a case, where there is a question of title arising, the resolution of that question is not a function which falls upon the police but on the court under section 58 (1) of the Police Service Act. It seems beyond the remit of the cited legislation for a police officer to determine ownership where there is a conflict between the person from whom items are taken and a person claiming or setting up a better title. The resolution of the case 72. In the case before the court, the court is satisfied of the following facts after reviewing the evidence: 3 See Jaroo at paragraph 22 Page 20 of 26