REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE PORT OF SPAIN Claim No. CV 2011 00364 Between KRISHNA SAMMY Claimant AND THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO ASSISTANT SUPERINTENDENT OF POLICE GOPICHAN GANGA Defendants BEFORE THE HONOURABLE JUSTICE RICKY RAHIM Appearances: Mr. B. Ali for the Claimant Ms. R. Caesar instructed by Ms. Z. Haynes for the Defendant 1 P a g e
Judgment 1. This was a claim for damages for Malicious Prosecution. For the reasons that follow the judgment of the court is as follows: i. The Claim is dismissed. ii. iii. The Claimant is to pay the prescribed costs of the First Defendant in the sum of $14,000.00. The Claimant is to pay the prescribed costs of the Second Defendant in the sum of $14,000.00. 2. The uncontested facts are that following an altercation on the 10 th March 2002 between the Claimant and Dalip Sammy and Sheila Sammy the Second Defendant charged the Claimant with the offences of wounding Dalip Sammy (his brother) with intent to do him grievous bodily harm and assaulting Sheila Sammy (Dalip s wife) thereby occasioning her actual bodily harm. The Claimant was tried and committed for trial by the Magistrate. He was subsequently indicted by the Director of Public Prosecutions (DPP), tried and acquitted. 3. The Indictment upon which the Claimant stood trial contained two counts. The first was that of causing grievous bodily harm to Dalip Sammy with intent (GBH) and the other was that of assault of Sheila Sammy thereby occasioning actual bodily harm. The substitution of the charge of GBH in place of the original charge of wounding with intent for which the Claimant was committed was made presumably pursuant to the enabling statutory powers available to the DPP. 4. The Claimant avers that the Second Defendant lacked reasonable and probable cause to charge him and that the actions of the Second Defendant were motivated by malice. 2 P a g e
The Second Defendant denies these assertions and contends that at the material times he had reasonable and probable cause to arrest and charge the Claimant and further that there was no malice involved in the laying of the said charges. 5. The law in relation to Malicious Prosecution is well settled. The elements necessary to found a claim in Malicious Prosecution are (a) that the law was set in motion against the Claimant on a charge for a criminal offence; (b) that the Claimant was acquitted of the charge or that otherwise it was determined in his favour; (c) that the prosecutor set the law in motion without reasonable and probable cause; and (d) that in so setting the law in motion the prosecutor was actuated by malice (e) that the Claimant has suffered damage: see Halsbury s Laws of England Volume 97 (2010) 5 th Edn. Para 627, 636. It is incumbent on the Claimant to prove these elements. In the present case, (a) and (b) above are not in dispute. 6. The issues for the court therefore are: i. Whether the Second Defendant had reasonable and probable cause to prosecute the Claimant; ii. iii. Whether the Second Defendant was actuated by malice in the prosecution of the Claimant; If it is found that the Second Defendant lacked reasonable and probable cause and there was malice involved, whether the Claimant has suffered damage. Reasonable and Probable Cause 7. Reasonable and probable cause for a prosecution has been said to be an honest belief in the guilt of the accused founded upon reasonable grounds. It is the honest belief that 3 P a g e
that circumstances exist which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of an accuser, to the conclusion that the person charged was probably guilty of the crime imputed: see Cecil Kennedy v AG of Trinidad and Tobago Cv App 87 of 2004; Halsbury s Laws of England Volume 97 (2010) 5 th Edn. Para 641. 8. The presence of reasonable and probable cause for a prosecution does not depend upon the actual existence, but upon a reasonable belief held in good faith in the existence, of such facts as would justify a prosecution. One is not required to test every possible relevant fact before one takes action: see Hicks v Faulkner (1881) 8 QBD 167 at 173; Herniman v Smith (supra); Halsbury s Laws of England Volume 97 (2010) 5 th Edn. Para 642. 9. The question of whether there was reasonable and probable cause involves both subjective and objective tests, namely whether on the facts adduced: (i) The prosecutor had an honest belief in the guilt of the accused; (ii) The prosecutor had an honest conviction of the existence of the circumstances relied on; (iii) Whether the matters relied upon constitute reasonable and probable cause in the belief of the accused s guilt. 10. The objective element involves a consideration of whether a reasonable man having knowledge of facts that the Second Defendant knew at the time he instituted the prosecution, would have believed that the Claimant was guilty of the alleged crime. The subjective test considers whether the Second Defendant honestly believed that the plaintiff was guilty. What is clear is that the defendant s belief must be based upon facts 4 P a g e
known to him, at the time that he initiated the prosecution. As the existence of reasonable and probable cause is a question of fact, the court must consider the facts known to the Second Defendant leading to the Claimant s prosecution. 11. The Claimant s evidence was that the precursor to his prosecution was a land dispute between Dalip and Sheila and himself. The dispute which apparently involved an issue with water run-off from the Claimant s property onto the property of Dalip, culminated in the incident of the 10 th March 2002. It was the Claimant s testimony that on the afternoon of the 10 th March 2002, he observed his bother digging up the road leading to the Claimant s property with a luchette and cutlass. The Claimant then asked him why he was digging up the road, and his brother responded with profanity. After being warned by the Claimant to desist from using obscene language, Dalip Sammy proceeded to advance to the Claimant with the cutlass in a threatening manner. In an attempt to disarm his brother, the Claimant testified that he threw a stone at him which struck him on his head. Present when the incident occurred was the Claimant s wife Chandra Maingot, the Claimant s uncle Bridgelal Saddambarran and his wife Champa Saddambarran. After the altercation, Dalip returned to his home and subsequently thereafter, the Claimant observed Sheila to the front of his house where she used obscene language towards the Claimant. The Claimant later on separate occasions that same day arrested and charged both Dalip and Sheila. 12. On or about the 11 th March 2002 the Claimant was asked by the Second Defendant to produce a report on the arrests and the files pertaining to those matters. The Claimant s evidence was that he produced the report and a file containing statements of his wife, Chandra, Bridgelal and Champa. On or about the 28 th March 2002, the Claimant was charged with the offences. 13. Although the statements of Chandra, Bridgelal and Champa dated the 12 th March 2002, 12 th March 2002, and 13 th March 2002 respectively, corroborated the Claimant s version 5 P a g e
of events, it is noteworthy that the Claimant did not call any of these persons as witnesses in theses proceedings. These statements were, according to the Second Defendant, in his possession and had been read before charges were laid. However the Second Defendant admitted in cross examination that he did not read these statements before charging the Clamant. He explained that he passed the file containing the statements to his superiors before he was instructed to charge the Claimant. 14. The Second Defendant testified that he believed that there was overwhelming medical, oral and circumstantial evidence that demonstrated that the Claimant should be charged with offences in relation to an assault and battery of Dalip and Sheila. The information which the Second Defendant appeared to have had in his possession is to be found at paragraphs 10 to 19 of his witness statement. 15. The sum of the information available to the Second Defendant before laying the charge was as follows: i. On the 10 th March 2002 the Claimant threw a stone at Dalip Sammy while Dalip was digging at the boundary between his house and that of the Claimant. The Claimant reported that he threw the stone after Dalip advanced threateningly towards him with a cutlass. Dalip reported that the attack was unprovoked on his part and that the stone was thrown when he looked up from digging at the boundary. ii. Sheila reported that around 12 o clock midday on the 10 th March 2002, she had a conversation with the Claimant s wife about a drain between their properties that was blocked because of the Claimant s actions. The response was not favourable and Sheila returned home. She said that after she reported to Dalip what had occurred, he took up a fork, cutlass and tape and proceeded to the 6 P a g e
boundary where he started digging. When he commenced digging Sheila left to answer her phone. iii. Medical Reports dated the 10 th March 2002 were obtained from Couva District Health Facility relating to the injuries sustained by both Dalip and Sheila. The injury recorded in the report in relation to Dalip was a deep laceration on scalp left frontal area. Size 7 cm x 3 cm x 3cm. Sheila was found to be suffering from tenderness to side of neck, face, upper back, both thumbs and lower abdomen. iv. A further report from the San Fernando General Hospital was later obtained in favour of Dalip which stated his injury as depressed fracture frontal bone (compound, comminuted Dural tear). A further medical report was obtained from Dr. Dixon dated the 12 th March 2002 in relation to Sheila which stated her injuries as including: tenderness over the scalp, linear bruise over left anterior wrist, swelling of ring finger right hand, bruising over left elbow 2 inches x I inch and tenderness over left buttock. v. On the 20 th March 2002 the Second Defendant met with Chandra and she admitted that the Claimant did hit Dalip, but that it was Dalip who had been the aggressor in the altercation. A statement from Chandra was not given to the Second Defendant but was given to the Claimant and submitted in his report of the incident. vi. The report of the Claimant and the file containing statements by Chandra, Bridgelal and Champa, and a statement from Sheila. The witnesses Chandra, Bridgelal, Champa, and Sheila all stated that the Claimant hit Dalip when Dalip attacked him with an upraised cutlass. Although the Second Defendant did not read these statements he testified that did interview Chandra and Bridgelal on the events of the 10 th March 2002. 7 P a g e
16. Counsel for the Defendant submitted, and this court agreed, that the question which appeared to arise on the information available to the Second Defendant was whether the Claimant had a lawful excuse for the use of force against Dalip and Sheila. It was submitted on behalf of the Second Defendant that this was not a determination to be made by the Second Defendant. In this regard it was submitted that taking the surrounding circumstances of the incident, such as the high handed behaviour of the Claimant and the medical evidence into account, the Claimant ought to have been charged. 17. Counsel for the Claimant submitted that the Second Defendant lacked reasonable and probable cause for the following reasons: i. The Second Defendant was faced with conflicting versions of an incident from persons with an interest to serve; ii. iii. There was no independent objective evidence that tilted the balance of competing versions one way or the other; The Second Defendant refused to read statements of eye witnesses to the incident and whose account supported the Claimant s version and refused to treat with the requisite caution the reports that were made to him. 18. While it seems somewhat odd, to say the least, that a complainant would submit a file having not read statements which appear to give a different version of the incident, to the extent that it provides a full defence, this by itself does not necessarily mean that the complainant may not have had reasonable and probable cause to charge. 8 P a g e
19. In analyzing the information available to the Second Defendant at the time of the charge, the court notes that reasonable and probable cause does not mean that the prosecutor has to believe in the probability of conviction, nor must he test the full strength of the defence. The prosecutor is concerned only with the question of whether there is a case fit to be tried. Glinski v McIver [1962] 2 WLR 832. Further, in Bernard Baptiste v AG of Trinidad and Tobago H.C.A. Cv. 3617 of 2001, despite the Claimant s denial of the commission of the offence, the information relied on by the police to prosecute stemmed in large measure from the victim herself, Elizabeth Fontanelle. Stollmeyer J, as he then was stated: The police are therefore only required to be satisfied that the evidence available at the time is enough to commence a prosecution in respect of which there is reasonable and probable cause. In those circumstances, it might be said that the say so of Elizabeth Fontanelle was enough and that the Plaintiff's denial remained to be tested under cross examination. As, indeed, would be the evidence of Elizabeth Fontanelle. 20. This is particularly instructive. The court is of the opinion that the information in the possession of the Second Defendant before he charged the Claimant was consistent with an attack on Dalip. The court is also of the view that the medical injuries as contained in the medical reports were not inconsistent with the version of events given by the Claimant and his witnesses. What then is an investigator to do in such a case? Where the information available in relation to the issue of self defence is overwhelming, the decision whether or not to charge may be a simple one. Where the information is on the face of it equivocal the position is different. 21. Despite the submission on behalf of the Claimant that the Second Defendant did not properly weigh the conflicting versions of the incident, the court is of the view that it 9 P a g e
was not necessary for him to test and weigh every fact before he took action. In the present case the fact that there were two equivocal versions meant that it was not within the purview of the Second Defendant to perform a trial himself. 22. A finding that the Claimant was acting in lawful self defence in these particular circumstances would be one to be made by the fact finder, that is, the magistrate, jury or judge at the stage of a no case submission. This finding of fact can only be made at the least, after all the evidence on the part of the complainant and his witnesses have been lead. This is particularly so where, the medical evidence, which usually lends some scientific precision to the process, lends itself equally to either interpretation. 23. The court is fortified in its view by the dicta in the case of Lennox Phillips and others v The Director of Public Prosecutions and the Attorney General Civil Appeal No. 140 of 1990. Chief Justice Clinton Bernard (as he then was) outlined the role of the police in executing arrests and laying charges. At pages 27-28 of the dictum he held as follows: Once he entertains a reasonable suspicion that a serious infraction of the law has been committed by any person, a police officer has both the power and the duty for the preservation of the peace that is to say for the proper maintenance of law and order to apprehend suspected offenders and to bring them before the Courts. For this purpose he may effect the suspect s arrest with or without a warrant. Of course, he is not expected to act rashly; but in pursuance of his functions it is no part of his duty to determine guilt or innocence. It is, as a matter of law, no concern for him as to whether a person has a defence or plea available to him such as, for example, self-defence, provocation, accident A police officer is not normally a trained lawyer and, in any event, in his decision to charge an offender, qua police officer it is no part of his business or function to go into or determine the validity of any defence or plea. His duty is to prosecute and not, strictly speaking as I said, to determine any time prior or up to the time of arrest and 10 P a g e
charge the question of the suspect s guilt or innocence which is a matter for the Courts to decide. 24. Further, the point has not been argued before this court as it is not directly relevant to the issues to be determined, but it may well be that in a case where the medical evidence tilts the balance in favour of he who relies on self defence, a complainant, in the absence of other evidence, may not have reasonable and probable cause to lay a charge but this is far from the case here. 25. Although it is true that there were two competing versions of the incident, the fact that the competing versions emanated from persons with obvious interests to serve is not a fact that is unique to this particular matter. One may well find that caution is needed in all cases and the Claimant s submission that this circumstance called for an exercise of caution adds nothing to the Claimant s arguments. Further, although Dalip and Sheila were making allegations against a person who charged them, it was admitted by the Claimant that he did in fact administer the blow. An examination of the circumstances surrounding the blow was therefore necessary. This could only be done by the court in appropriate form. 26. In submitting that the circumstances of the case required the Second Defendant to proceed with caution before charging the Claimant, the Claimant posited that the Second Defendant appointed himself investigator without seeking instructions or advice at the time, that he did not refer the matter to the Police Complaints Authority, that he did not refer the matter to the officer in charge of the police station, nor did he invoke disciplinary proceedings. The court is of the view that there was no need for the Second Defendant to seek instructions to appoint himself simply because he is an Assistant Superintendent of Police and senior in rank. Similarly, he is under no duty to refer it to the officer in charge of the station who may in fact be of a lower rank. Whether the 11 P a g e
Second Defendant ought to have referred the matter for disciplinary proceedings is a separate issue and has no real bearing on the issue of reasonable and probable cause. 27. The Claimant has attached copies of the Minor Crimes and Serious Crimes and General Occurrence Hardcopy report to his witness statement which records a report made by Sheila that the Claimant took a cutlass and dealt Dalip and Sheila several blows about the body. The Claimant submitted that there was an inconsistency with this report and the medical reports of Dalip and Sheila. When asked in cross examination about this inconsistency, the Second Defendant testified that he had never seen the General Occurrence Hardcopy report before despite the document naming him as the author of the report. 28. The court however accepts that the report appears to conflict with what was subsequently reported by Sheila and contained in the witness statement of the Second Defendant. However, in so far as the information provided by Dalip goes, there was no inconsistency between his report and his statement. Further, it is borne out of Sheila s evidence given at the magistrate s court, that she was not actually present when the incident between Dalip and the Claimant occurred. A witness may explain an inconsistency in several ways, one of which is that having not seen the incident and having seen the injuries, she assumed that her husband had been chopped. It may also be that Sheila was lying in her report in order to bolster her case. This court has no explanation for the conflict in the evidence before it and would be in error should it presume one. The information initially given by Sheila therefore appears to have been less reliable than that given by Dalip but that does not change the quality of the evidence given by Dalip whose evidence alone could have formed the basis for a charge against the Claimant in this case. The conflict in evidence in relation to Sheila was one to be dealt with by the Court in the usual manner. 12 P a g e
29. The Claimant also argued that the Second Defendant s report dated 20 th March 2002 showed that he was biased as he chose to believe one version of events. In fact, the Second Defendant s report states that he believed the Claimant acted unlawfully. The Court agrees with the submission of the defence that this goes towards proving that the Second Defendant in fact hold an honest belief in the Claimant s guilt and cannot assist the Claimant. Further, the report not only sets out the case for Dalip but also the information provided by the Claimant s witnesses to the incident which appear prima facie to raise the issue of self defence on the part of the Claimant, so that this information was not hidden from the Second Defendant s superiors from whom he sought instructions. 30. It is the court s view that the Second Defendant held an honest belief in the guilt of the Claimant and had an honest conviction of the existence of the circumstances relied upon. Further, in the normal course of things, a reasonable man having knowledge of the facts that the Second Defendant did at the time he instituted the prosecution, would have believed that the Claimant was probably guilty of the alleged crime. 31. It is therefore the finding of this court that the claimant has failed to prove that there was an absence of reasonable and probable cause for the institution of the criminal proceedings against him. Malice 32. A Claimant in a claim for damages for malicious prosecution has to prove malice in fact indicating that the defendant was actuated either by spite or ill-will against the claimant, or by indirect or improper motives: Halsbury s Laws of England Volume 97 (2010) 5 th Edn. Para 639 13 P a g e
33. The Claimant has given evidence of a past incident occurring between himself and the Second Defendant. 34. It was his evidence that following an incident, which involved the investigation of a burglary at the Claimant s house, he raised the issue of the failure of the Second Defendant to assist him in the way he requested, with his seniors. According to the Claimant, it was after this that the Second Defendant stopped speaking to him and allegedly openly threatened the Claimant that he would buss his throat. The Claimant relies on this incident in support of his contention that the Second Defendant was motivated by ill-will against him. 35. The court notes that where lack of reasonable and probable cause is not proved, the question of malice does not arise: Cecil Kennedy v AG of Trinidad and Tobago Cv App 87 of 2004. Malice and lack of reasonable and probable cause must unite to produce liability. 36. Having ruled that the Claimant has not proven the lack of reasonable and probable cause, the issue of malice does not arise in the instant matter. 37. Notwithstanding the court s findings supra, the court is not persuaded that the Second Defendant was actuated by spite, ill-will or any improper motive in instituting the proceedings against the Claimant for the following reasons: i. The court does not agree that the Second Defendant ignored the Claimant s request following a break in at his home. The evidence is that the Second Defendant did in fact appoint someone to investigate the matter. ii. The evidence is that the Second Defendant refused the Claimant a firearm at his request as he thought it improper. The court considers that the evidence as it 14 P a g e
relates to this merely shows that the Second Defendant attempted to follow procedure. iii. The court therefore is not satisfied that the Second Defendant had a motive to do wrong against the Claimant in retaliation for the Claimant s informal report against him as the Claimant attempts to set out. iv. The court does not believe the evidence of the Claimant that the Second Defendant publicly stated he would buss his throat. There is quite simply no supporting evidence of such a public statement. v. The Second Defendant held an honest belief in the guilt of the Claimant as inferred from his recommendation at the end of his report. 38. The court finds therefore that the Second Defendant was not actuated by malice as on the evidence, he held no spite, ill-will or harboured any improper or oblique motive. INDICTMENT 39. There is one further matter which this court ought to deal with although it appears not to have been made an issue by the parties. The Claimant was indicted by the Director of Public Prosecutions acting pursuant to his independent powers by virtue of section 90 of the Constitution. 40. Additionally, the DPP would have acted under section 25(3) of the Indictable Offences (Preliminary Enquiry) Act Chap 12:01 which reads as follows; A person committed for trial may be indicted for any offence for which he was committed for trial or for any offence which, in the opinion of the Director of Public Prosecutions, is disclosed by the depositions. 15 P a g e
41. The combined effect of these provisions is to vest in the office of the DPP, an independent discretion as to the decision whether to indict based on the sworn testimony and other evidence presented at the Magistrate s Court coupled with public policy considerations in appropriate cases. This exercise of discretion by the DPP, in effect supersedes the decision made by the police officer who instituted the charge. 42. It therefore follows that proof of malice ought to encompass and extend to the exercise of that independent discretion by the DPP. There is no such evidence in this case. Nor is it remotely suggested by the Claimant that the DPP was actuated by malice. The Claimant does however appear to argue that the DPP was deprived of the benefit of the exculpatory statements given by the witnesses of the Claimant. In this regard, the court is of the opinion that this argument falls far short from contending and proving that there was malice on the part of the DPP. The non-consideration of the statements by the DPP, would not have likely made a difference to the decision to indict applying the same principles in relation to the issue of self defence discussed supra. 43. The court also notes as an aside that it was open to the Claimant to call those witnesses at the preliminary enquiry so that their sworn testimony would have formed part of the record thereby ensuring that the DPP would have had sight of them, but he elected so not to do, which was his entitlement. 44. This court is fortified in its view by the dicta of Mendonca J.A. in the decision of the Court of Appeal in Anthony Sorzano and Steve Mitchell v Attorney General of Trinidad and Tobago Civ App. No. 101 of 2002; Indeed I think it would be rare in cases where the Director of Public Prosecutions prefers an indictment for the plaintiff to succeed in an action for malicious prosecution against the police officer who initiated the charges where that action is defended. 16 P a g e
45. This court is therefore not satisfied that on its facts, this case falls to be considered as one of the rare cases referred to by Their Lordships of the Court of Appeal and would dismiss the claim in manner appearing above. Dated this 10 th day of October 2012 Ricky Rahim Judge 17 P a g e