Attorney General v Stuart (a/c Kevin Stewart)
| Jurisdiction | Trinidad & Tobago |
| Judge | Bereaux, J.A.,P. Moosai,J. Jones |
| Judgment Date | 25 July 2017 |
| Neutral Citation | TT 2017 CA 39 |
| Docket Number | Civil Appeal No. P162 of 2015 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 25 July 2017 |
REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
N. Bereaux, J.A
P. Moosai, J.A
J. Jones, J.A.
Civil Appeal No. P162 of 2015
R. Martineau SC, Z. Haynes-Soo Hon, C. Finley and J. Forrester for the appellant
K. Ratiram and C. Kalloo for the respondent
Irish v. Barry [1965] 8 W.I.R 177 — McArdle v. Egan [1933] All ER 611 — Williamson v. The Attorney General of Trinidad and Tobago [2014] UKPC 29 — Gibbs v. Rea [1998] A.C 786.
Sections 4, 5, 12 and 13 of the Anti-Gang Act
Tort - Malicious prosecution — Wrongful arrest — False imprisonment — Whether the Police Constable had reasonable and probable cause to arrest the respondent — Whether the Police Constable had reasonable and probable cause to charge the respondent — Whether there was sufficient evidence of the respondent's involvement in gang-related activities — Whether the charge was maliciously laid — Whether the judge was correct in her conclusions — Whether the judge failed to properly analyse the evidence — Requirements of a police officer when exercising his powers of arrest — Requirements for proving malicious prosecution — Damages.
Delivered by Bereaux, J.A.
There are three issues in this appeal:
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(i) whether Police Constable Nicholas Phillips (PC Phillips or Phillips) had reasonable and probable cause to arrest the respondent,
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(ii) whether PC Phillips had reasonable and probable cause to charge him and
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(iii) if he had no reasonable and probable cause to charge the respondent, whether the charge was preferred maliciously.
The arrest was effected under section 12(1) of the Anti-Gang Act, No. 10 of 2011 (the Act or the Anti-Gang Act). The long title of the Act states that it is intended to provide “for the maintenance of public safety and order through discouraging membership of criminal gangs and the suppression of criminal gang activity…” Consistent with that intention a police officer who reasonably suspects that a person has committed an offence under the Act may arrest without warrant such a person and detain him or her for no more than seventy-two hours. See sections 12 and 13 of the Act. The legislation came into force on 15 th August 2011 and the respondent's arrest was effected at midnight on 27 th August 2011 during a police exercise. Prior to the coming into effect of the Act, police officers were briefed on its provisions and information on various gangs was gathered through surveillance. But proving offences in respect of gang membership and gang-related activity is by no means clear cut.
The respondent was asleep at his home, at midnight on 27 th August, 2011, when he was awakened by a party of police officers banging on his front door, shouting “Police”. I shall refer to him as the respondent or Stuart. He opened the door and policemen with guns pointed at him entered his home. PC Phillips told him that he was being arrested “for enquiries”. According to the respondent PC Phillips did not identify himself during the course of the arrest neither did PC Phillips tell him that he had information that he (Stuart) was involved in gang-related and narcotic activity. Stuart was taken to the Marabella Police Station and put in a cell. The cell contained a toilet which was clogged and emitted a stench. He was forced to sleep on the ground.
He was detained without charge (pursuant to section 13 of the Act) at the Marabella Police Station until 29 th August 2011 when PC Phillips charged him with being a member of a gang, at Union Park East, Marabella, on 27 th August 2011, contrary to section 5(1)(a) of the Act. On the same day, he appeared before a magistrate at the San Fernando Magistrates' Court and was denied bail. He was later taken to the Maximum Security Prison then transferred to the Remand Yard Prison, Arouca. On 28 th September, 2011, the Director of Public Prosecutions discontinued the proceedings against him. On 29 th September 2011, the presiding magistrate at the First Court, San Fernando Magistrates' Court discharged him and he was released at around 3:00 p.m. on that day. He had spent one month and a day in prison.
The respondent initiated these proceedings seeking damages for wrongful arrest, false imprisonment and malicious prosecution. He contends that he was not arrested “for any good/lawful reason” and that the charge was laid by PC Phillips maliciously and without reasonable and probable cause. He claims aggravated and exemplary damages. He alleges that PC Phillips' conduct was arbitrary and oppressive and that PC Phillips knew or ought to have known that he would automatically be denied bail as a result of the charge. The sole particular of malice and lack of reasonable and probable cause is that:
“At the time [PC Phillips] laid the said charge, he had no evidence before him that the [respondent] was a gang member on the 27 th day of August 2011, at Union Park East, Marabella, but still charged him”.
It is important to note that the respondent does not allege, as a particular of malice, any improper motive on the part of PC Phillips in laying the charge.
The defence of the Attorney General is that there was reasonable and probable cause to arrest and charge the respondent and that the charge was laid by PC Phillips in the bona fide execution of his duties as a police officer.
The judge found that there was no reasonable and probable cause for PC Phillips to arrest or to prosecute Stuart for the offence of being a gang member involved in the trafficking of narcotics. She held that the prosecution was malicious in that PC Phillips, together with ASP Mohammed and ACP Fredericks, was actuated by indirect or improper motives. She did not specify what these motives were. She awarded the respondent eighteen hundred dollars ($1,800.00) special damages at 3% interest from 27 th August 2011 to 30 th June 2015, general damages, including aggravated damages, in the sum of three hundred thousand dollars ($300,000.00) and exemplary damages in the sum of fifty thousand dollars ($50,000.00).
The judge found that there was no reasonable and probable cause to prosecute Stuart because:
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(i) ASP Mohammed and ACP Fredericks failed to satisfy themselves that PC Phillips had reasonable and probable cause to charge Stuart. PC Phillips had only three years' service when he was first assigned to conduct enquires about Stuart's activities. Despite his inexperience, ASP Mohammed did not see it fit to obtain a written report from PC Phillips as to the outcome of his investigations so as to review what such a very junior officer had done. This written report was necessary to determine whether there was reasonable and probable cause to arrest and charge Stuart.
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(ii) ASP Mohammed acknowledged during cross-examination that the proper approach would have been for him to have obtained a written statement from PC Phillips before issuing instructions to charge Stuart. His failure and that of ACP Fredericks (his immediate superior) to obtain a statement or file from PC Phillips before advising him to charge was a gross dereliction of duty.
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(iii) PC Phillips' evidence was riddled with contradictions and inconsistences which undermined any basis for the existence of reasonable and probable cause to charge Stuart and undermined any basis he may have had for an honest belief in Stuart's guilt.
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(iv) PC Phillips throughout his evidence attempted to “buttress, strengthen and fabricate new evidence against” the respondent. This was a strong basis for concluding that he fabricated the case against Stuart and that he had no reasonable and probable cause to charge him.
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(v) In any event PC Phillips, acting on information without more, did not satisfy the requirements of sections 12 and 13 of the Anti-Gang Act which both provide that a police officer may only arrest on reasonable suspicion that a person has committed an offence under the Act.
The judge found the prosecution to have been maliciously instituted because:
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(a) When ASP Mohammed finally carried out his duty and reviewed the file submitted by PC Phillips, he immediately realized that there was not sufficient evidence to charge Stuart. Coupled with his clear dereliction of duty in failing to receive a written report from PC Phillips, this amounted to evidence of an indirect or improper motive in charging the claimant.
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(b) Based on the many lies and inconsistencies in PC Phillips' evidence the prosecution of the respondent was malicious in that there was an indirect or improper motive for proceeding with the charge against him.
The broad question in this appeal therefore is whether the trial judge was correct in the conclusions to which she came.
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(i) The judge drew inferences from the evidence of ASP Mohammed and PC Phillips which were not justified and failed properly to analyse the evidence in its entirety. The consequence is that it falls to this court to consider the matter afresh. Having done so, we find that, as to false imprisonment, there was no reasonable and probable cause to arrest Stuart and his arrest on 27 th August 2011 was unlawful.
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(ii) As to malicious prosecution there was also no reasonable and probable cause to prosecute him. However, there was no basis for the imputation of malice or improper motive to PC Phillips in laying the charge. The finding that the prosecution was malicious was wrong.
The appeal is allowed in part. The award of damages is varied as follows: in respect of the false imprisonment claim we award the sum of fifty thousand dollars ($50,000.00) (including aggravated damages) for the thirty-three hours' imprisonment suffered by the respondent before he was charged and taken...
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