Manzano v The Attorney General

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Mendonca, J.A.:
• Judgment Date: 14 July 2014
• Neutral Citation: TT 2014 CA 34
• Docket Number: Civil Appeal No. 151 of 2011
• Date: 14 July 2014

Court of Appeal

Mendonca, J.A.; Bereaux, J.A.; Rajnauth-Lee, J.A.

Civil Appeal No. 151 of 2011

Manzano

and

The Attorney General

Appearances:

Ms. C. Mohan-Cayenne appeared on behalf of the appellant.

Mr. N. Byam appeared on behalf of the respondent.

Tort - Appeal — Malicious Prosecution — Whether the trial judge was correct to find that the appellant failed to establish that the prosecution was initiated and continued without reasonable and probable cause — Reasonable and probable cause in the context of the tort of malicious prosecution — Honest belief must be based on reasonable grounds — Subjective and objective points of view establish an absence of reasonable and probable cause — Malice as meaning an improper motive — Inference of malice — Appeal allowed.

I agree with the judgment of Mendonça J.A. and have nothing to add.

N. Bereaux,

Justice of Appeal

I too agree.

M. Rajnauth-Lee,

Justice of Appeal

Mendonca, J.A.:

1 Mendonça, J.A.: This is an appeal from the dismissal by the trial judge of the appellant's claim for damages for malicious prosecution. The issues raised in this appeal are whether the trial judge was correct to find that the appellant had failed to establish that the prosecution against the appellant was initiated and continued without reasonable and probable cause and was initiated and carried on maliciously.

2 These proceedings were commenced on July 2nd 2010 against the respondent pursuant to the provisions of the State Liability and Proceedings Act claiming damages for false imprisonment and malicious prosecution. The claim for false imprisonment, however, was dismissed at a pre-trial review leaving only the claim for malicious prosecution.

3 It is not in dispute that the appellant was arrested on April 20th 2006 and on April 21st 2006 was charged by Police Constable Adams (Constable Adams) with a criminal offence, namely the larceny of a welding plant valued at $60, 000 being the property of Paramount Transport Co. Ltd. (Paramount).

4 The appellant secured bail on April 22nd 2006 and attended the Couva Magistrates' Court on five occasions in relation to the charge, the last of which was on April 26th 2007. On that date the charge against the appellant was dismissed, there being no appearance of the prosecution witnesses.

5 In the appellant's statement of case the following particulars are set out to show an absence of reasonable cause and the presence of malice:

• A. The respondent and/or its servants and/or its agents failed and/or refused and/or omitted to conduct proper investigations or at all.

• B. The respondent knew or ought to have known that there were no reasonable grounds for the arrest and prosecution of the appellant.

• C. The respondent and/or its servants and/or its agents fabricated the charge for the appellant never stole the said welding plant.

• D. The officers were actuated by improper motives as no reasonable basis for the charge existed at the time of arrest or even thereafter.

6 In his witness statement the appellant denied that there was reasonable and probable cause. He further alleged that Constable Adams did not conduct proper investigations into the alleged offence. He averred that it was alleged against him that on April 19th 2006 at 1:30am he entered the compound of Paramount at Pt. Lisas together with three men and a white truck and stole a welding plant. At that time, however, he was at home and for about two weeks before then he did not work in the Pt. Lisas area.

7 He also stated that the applicable procedure, where an employee sought to obtain equipment from Paramount's premises, was follows:

• a. firstly a request is made via walkie-talkie to the head office for the equipment;

• b. head office will indicate where to go to collect the equipment;

• c. the employee will proceed to the yard as indicated by head office; and

• d. upon arrival the employee will speak to security who will book in the date, time and name of the person driving the vehicle in which the equipment will be transported, the number of the truck and the number of the trailer, if any, and a record is made of the specific number of the equipment taken (Each piece of Paramount's equipment has an identifying number painted on it). All of this information must be recorded by the security.

The appellant averred that he was aware of this procedure because of his eleven years service with Paramount and he has experienced it himself.

8 The appellant's witness statement was ordered to stand as evidence in chief and he was cross-examined on it. There were no other witnesses on behalf of the appellant.

9 The respondent in his defence averred that Constable Adams acted with reasonable and probable cause and without malice. The averments in the defence in relation to reasonable and probable cause were supported by Constable Adams in his witness statement, the material parts of which are contained in paragraphs 3-9 and are as follows:

• “3. On 19th April 2006, whilst on duty at the Couva CID I received a telephone call about an incident of Larceny from Brandon Small. Mr. Small identified himself as a security officer working at the Paramount compound situated on the Pt. Lisas Industrial Estate. He informed me that whilst on duty at the compound some men, one of whom he knew was working with the Company and identified as the [appellant], came unto the compound in a white truck, registration number TBU 6652 or 6552 and stole a Lincoln welding plant valued at $60, 000.00. He informed me that the men put it on the truck with the help of a forklift and drove out of the compound.

• 4. Later that day I went to the Paramount Compound, Point Lisas Industrial Estate where I met with and spoke to Mr. Small. He informed me that the [appellant] did not have the authority to remove the welding plant. He also indicated that the [appellant] worked at another branch of Paramount at Marabella.

• 5. I then proceeded to Marabella where I met with and took a statement from the Supervisor. I was informed that the [appellant] was employed with the company and that the [appellant] did not have the authority to remove the welding plant. I also obtained the [appellant'sJ's home address from the Supervisor.

• 6. I was accompanied to the home of the [appellant] at Cartal Road, Gasparillo by the Supervisor and other employees of Paramount Company, but was unable to meet with him as there was no one at home

• 7. I then liaised with the Marabella Police Station, informed them of the larceny report and asked them if they could look for him later that day at Paramount Marabella or at his home address.

• 8. On 21st April 2006 I reported for duty at the Couva CID for the 6 pm shiff, I was informed that the [appellant] had been arrested by Corporal Licorish Regimental Number 10555 of the Marabella Police Station and other officers of the Crime Suppression Unit, Marabella was detained at the station.

• 9. I met with the [appellant] and informed him of the larceny report made against him. I then cautioned the [appellant] before interviewing him. I formally charged him for the offence of larceny at around 7:49 a.m. He was served a notice to prisoner, fingerprinted and handed over into custody in the charge room.”

10 The witness statement was ordered to stand as evidence in chief and Constable Adams was cross-examined on it. Reference will be made to aspects of the cross-examination later in this judgment. Constable Adams was the only witness to testify on behalf of the respondent.

11 The judge noted that the live issues in this case were (a) whether there was an absence of reasonable and probable cause on the part of Constable Adams to initiate the proceedings against the appellant; and (b) whether the appellant had proven malice on the part of Constable Adams.

12 As to reasonable and probable cause the judge did not accept the evidence of Constable Adams with respect to his involvement with the supervisor of Paramount who he allegedly met and from whom he allegedly obtained a statement. The judge stated:

“It is to be noted that the statement allegedly recorded from the supervisor has not been put before this Court. Neither has there been any explanation given for its absence. Further, without explanation, Constable Adams has referred to the supervisor on no less than three occasions without stating his or her name. Certainly, if a statement was recorded from the supervisor such a statement ought to be before the court so that the court may have a clearer picture of the information which was in the possession of the complainant. At the very least, the name of the supervisor should have been disclosed. The court therefore places no reliance on the evidence of Constable Adams in this respect.”

13 The judge however found that there was other information which Constable Adams possessed at the time he laid the charge. This information he set out as follows:

1

An employee of Paramount Transport Company Ltd. named Manzano went to the company's compound at about 1:30 am on 19 April 2006 together with other men where they took away a welding plant, placed it on the tray of a truck with the aid of a forklift and left. This was all done in the presence of security officer Brandon Small, 33 years old, of 5 Bel Air Drive, La Romain who thereafter telephoned the police. Constable Adams himself spoke with and received this information from Mr. Small. This is supported by the station diary extracts of the Couva Police Station for 19 April 2006. 2. The make and value of the welding plant was ascertained, namely a Lincoln 400 welding plant valued at $60, 000.00 3. The registration number of the truck was either TBU 6652 or TBU 6552 and its colour was white. 4. The employee named Manzana was known to Mr. Small. It is to be noted here that no identification parade was held. Constable Adams testified that he did not hold one because he thought it was...