Ross Russell Jr. v Police Sergeant Richardson Elvin #11449
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice R. Rahim |
| Judgment Date | 26 January 2024 |
| Neutral Citation | TT 2024 HC 30 |
| Docket Number | Claim No. CV2019-04964 |
| Court | High Court (Trinidad and Tobago) |
the Honourable Mr. Justice R. Rahim
Claim No. CV2019-04964
IN THE HIGH COURT OF JUSTICE
Claimant: C. J. Williams instructed by C. St. Louis
Defendant: S. Jaikaran instructed by A. Ramsook.
On February 16 2023, the court dismissed the claimant's claim for malicious prosecution, wrongful arrest and false imprisonment filed on December 4, 2019 and the following are the reasons for this decision. It is to be noted that the first defendant was removed as a party to the claim.
The claimant was charged by Sgt Richardson Elvin (“Elvin”) on June 17, 2016 for murder (allegedly committed on June 5, 2016) and other firearms related offences, was remanded into custody for a period of two years (2) and two months (2) before being discharged upon a no case submission at the Magistrate's Court. The allegation was that the claimant was on a hike with others including the deceased when a fight ensued and the claimant shot the deceased. The claimant was charged together with Julius Balondemu (also known as Demu) who remains on the charges.
In Ramsingh v Attorney General of Trinidad & Tobago 1, in considering the law on whether the detention of the claimant was unlawful and amounted to false imprisonment, Lord Clarke stated the relevant principles at paragraph 8;
[8] The relevant principles are not significantly in dispute and may be summarised as follows:
“ i) The detention of a person is prima facie tortious and an infringement of section 4(a) of the Constitution of Trinidad and Tobago.
ii) It is for the arrestor to justify the arrest.
iii) A police officer may arrest a person if, with reasonable cause, he suspects that the person concerned has committed an arrestable offence.
iv) Thus, the officer must subjectively suspect that that person has committed such an offence.
v) The officer's belief must have been on reasonable grounds or, as some of the cases put it, there must have been reasonable and probable cause to make the arrest.
vi) Any continued detention after arrest must also be justified by the detainer.
The tort of malicious prosecution contains five elements. In the decision in Kevin Stuart v Attorney General of Trinidad and Tobago 2, Lord Burrows said at paragraph 1;
“ The tort of malicious prosecution has five elements all of which must be proved on the balance of probabilities by a claimant: (1) that the defendant prosecuted the claimant (whether by criminal or civil proceedings); (2) that the prosecution ended in the claimant's favour; (3) that the prosecution lacked reasonable and probable cause; (4) that the defendant acted maliciously; and (5) that the claimant suffered damage. See, eg, Clerk and Lindsell on Torts (2020, 23rd edition) para 15-13; Winfield and Jolowicz on Tort (2020, 20th edition) para 20-006”.
In the decision of The Attorney General of Trinidad and Tobago v Joel Roop 3, Mendonça JA at paragraphs 47-49 considered the test of “reasonable and probable cause” in the following way;
“ 47. Reasonable and probable cause has been defined as an honest belief in the guilt of the accused based upon a full conviction founded upon reasonable grounds of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed (see Hawkins J in Hicks v. Faulkner (1878) 8 QBD 167, 171 which was approved by the House of Lords in Herniman v. Smith [1938] AC 305).
48. It is apparent from that definition that reasonable and probable cause in relation to malicious prosecution, as it is in relation to reasonable suspicion to arrest, also has subjective and objective elements. These may be summarised this way:
i) Did the officer who laid the charge have the requisite belief;
ii) Did the officer when exercising the power to lay the charge honestly believe in the existence of the objective circumstances which he relies on as the basis for that belief;
iii) Was his belief in the existence of these circumstances based on reasonable grounds; and
iv) Did these circumstances constitute reasonable grounds for the requisite belief.
49. In order to have reasonable and probable cause the defendant does not have to believe that the prosecution will succeed and that a guilty verdict will be returned. It is enough that in the material on which he acted there was a proper case to lay before the court (see Glinski v. Mc Iver [1962] AC 726 and Willers v. Joyce [2016] 3 WLR 477).”
In Kevin Stuart v Attorney General of Trinidad and Tobago, supra, Lord Burrows said at paragraph 26;
“ Nevertheless, and although nothing turns on it in this case, there is one point on the law which it is helpful to clarify. This concerns the question as to what the police officer's honest (and reasonably held) belief must be about in the context of deciding whether there is a lack of reasonable and probable cause. It has commonly been stated that the honest belief must be as to the accused's guilt in respect of the offence charged: see Hicks v Faulkner (1878) 8 QBD 167, 171, per Hawkins J, which was approved by the House of Lords in Herniman v Smith [1938] AC 305. But in the Board's view, the principled and correct approach was articulated by Lord Denning in the House of Lords in Glinski v McIver [1962] AC 726. He said at pp 758-759:
“ [T]he word ‘guilty’ is apt to be misleading. It suggests that in order to have reasonable and probable cause, a man who brings a prosecution, be he a police officer or a private individual, must, at his peril, believe in the guilt of the accused. That he must be sure of it, as a jury must, before they convict. Whereas in truth he has only to be satisfied that there is a proper case to lay before the court. … After all, he cannot judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him … So also, with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. …No, the
truth is that a police officer is only concerned to see that there is a case proper to be laid before the court.
In Matadai Roopnarine v Attorney General of Trinidad and Tobago 4, the matter was dismissed at first instance after hearing a submission of no case to answer and said decision was upheld by a majority in the Court of Appeal. The Board had to decide whether it was wrong to hold that no such case had been made out on the evidence. It was held that the appellant had failed to prove the absence of reasonable and probable cause not because of the weakness of his evidence but because he had not provided any evidence directed at the key issue of the circumstances in which the prosecution had been instituted and the nature of the information on which the prosecutors had acted. Since his case on malice depended on an inference being drawn from absence of reasonable and probable cause, it necessarily followed that malice had also not been established. The following passages are instructive;
31. A decision as to whether a prosecution has been brought without reasonable and probable cause involves a value judgment. It does not simply involve the making of primary findings of fact. As such it does not fall within the Devi v Roy practice – see Betaudier v Attorney General of Trinidad and Tobago [2021] UKPC 7 at para 16; Water and Sewerage Authority of Trinidad and Tobago v Sahadath
[2022] UKPC 56 at paras 19-26.34. As made clear in the passages cited above from Clerk & Lindsell, Abrath and Glinksi the claimant “must identify the circumstances in which the prosecution was instituted” and “show the nature of the information on which the defendant acted” – Clerk & Lindsell. This involves giving some evidence as to those circumstances and that information - Abrath. The claimant has to put before the court “the facts and information known to the prosecutor” – Glinski.
36. The appellant's witness statement and oral evidence was similarly focused on his dealings with the police rather than the nature of the information on which they were acting. It described the search of his home, his questioning on three occasions by the police, the taking of samples of his handwriting, the shame and embarrassment caused to him by his arrest at work, his charge despite protestations of innocence, the overcrowded and filthy conditions in which he was held on remand and the discontinuance of the prosecution.
37. Although no one has doubted the truthfulness of this evidence, those matters are not key to establishing his pleaded claim. The appellant knew from the respondent's pleaded defence and the evidence of the police officers at the preliminary inquiry before the Magistrates the nature of the information on which they had acted. At the malicious prosecution trial, however, no evidence was led as to these matters.
44. As both the judge and the majority held, the reason why the appellant failed to prove the absence of reasonable and probable cause was not the weakness of the appellant's evidence but rather the absence of any evidence from him directed at the key issue of the circumstances in which the prosecution was instituted and the nature of the information on which the prosecutors acted. On this issue “that evidence has not been forthcoming”, as the judge found, and there was “no prima facie case at all”, as the Court of Appeal held.
Malice can be proven not only by evidence of spite, or ill-will...
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