Trevor King v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Mr. Justice Frank Seepersad |
| Judgment Date | 29 October 2019 |
| Neutral Citation | TT 2019 HC 309 |
| Docket Number | Claim No. CV2015-03383 |
| Court | High Court (Trinidad and Tobago) |
| Year | 2019 |
the Honourable Mr. Justice Frank Seepersad
Claim No. CV2015-03383
IN THE HIGH COURT OF JUSTICE
San Fernando
1. Mr. Vashist Maharaj instructed by Mr. Robert Boodoosingh Attorneys-at-law for the Claimants.
2. Ms. Laura Persad, Ms. Lianne Thomas, Ms. Coreen Findley and Ms. Kelisha Bello Attorneys-at-law for the Defendant.
Before the Court for its determination is the Claimants' claim for malicious prosecution. The Claimants were arrested during the state of emergency in 2011 on the charge that they were gang members pursuant to the provisions of the Anti-Gang Act of 2011.
The trial proceeded against the First, Second and Fifth named Claimants as the third named Claimant filed no evidence in support of his case and the fourth named Claimant whose claim continued after his death by the substitution of his mother, also adduced no evidence at the trial as the substituted Claimant elected not to attend the trial. The Court therefore dismissed the third and fourth named Claimants' claim with no order as to costs.
Before this Court the First, Second and Fifth Claimants testified and two police officers testified on behalf of the Defendant.
The primary issues which fell to be decided on the issue of liability are as follows:
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(i) Whether there was reasonable and probable cause to charge each Claimant with the offence being a gang member and
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(ii) Whether Police Corporal Bernard was motivated by malice when he elected to prosecute the Claimants?
The following definitions can be found at Section 4 of the Anti-Gang Act:
“gang” means a combination of two or more persons, whether formally or informally organized, that, through its membership or through an agent, engages in any gang related activity.
“gang member” means a person who belongs to a gang, or a person who knowingly acts in the capacity of an agent for or an accessory to, or voluntarily associates himself with any gang-related activity, whether in a preparatory, executory or concealment phase of any such activity, or a person who knowingly performs, aids, or abets any such activity.
“gang-related activity” means any criminal activity, enterprise, pursuit or undertaking in relation to any of the offences listed in the First Schedule acquiesced in, or consented or agreed to, or directed, ordered, authorized, requested or ratified by any gang member, including a gang leader.
The First Schedule lists gang related offences. Trafficking in a dangerous drug or being in possession of a dangerous drug for the purpose of trafficking is listed at Item 20 in the First Schedule.
Section 12 (1) of the Anti-Gang Act provides:
“12. (1) A police officer may arrest without a warrant a person whom he has reasonable cause to believe to be a gang member or whom he has reasonable cause to believe has committed an offence under this Act.”
Section 13 (1) of the Anti-Gang Act provides:
“13.(1) Notwithstanding any law to the contrary, a police officer may, without a warrant, detain for a period not exceeding seventy-two hours a person whom he reasonably suspects of having committed an offence under this Act without charging him for the offence.”
The essential ingredients of the tort of malicious prosecution are set out in Clerk & Lindsell on Tort 20th Edition at paragraph 16:09:
“In an action for malicious prosecution the claimant must show first that he was prosecuted by the Defendant, that is to say that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious. The onus of proving every one of these is on the claimant. Evidence of malice of whatever degree cannot be invoked to dispense with or diminish the need to establish separately each of the first three elements of the tort.
The burden of proving the elements of the tort rests on the Claimant. The failure to establish any one or more of the requirements will result in the Claimant losing his action for malicious prosecution. In the present case there is no dispute in respect of the first and second elements of the tort.
The Claimants in the Statement of Case outlined the Particulars of Malicious Prosecution upon which their respective claim was premised.
The factors and considerations that go to establishing reasonable and probable cause under the tort of false imprisonment are substantially the same as those which go to prove or disprove reasonable and probable cause in an action for malicious prosecution: Irish v Barry (1965) 8 W.I.R. 177 per Justice of Appeal Mc Shine at page 186, paragraph E.
The meaning of reasonable and probable cause for a prosecution is set out at in Halsbury Laws of England 5th Edition Vol 97 (2010) at paragraph 641 as follows:
“Reasonable and probable cause for a prosecution has been said to be an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of the circumstances 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.”
In Glinski v Mc Iver [1962] AC 727 Lord Denning suggested that the test is not suitable for the ordinary run of cases. At pages 758 to 759 Lord Denning stated,
“My Lords, in Hicks v. Faulkner [1878] (8) Q.B.D. 167 Hawkins J. put forward a definition of “reasonable and probable cause” which later received the approval of this House. He defined it as an “honest belief in the guilt of the accused” and proceeded to detail its constituent elements. The definition was appropriate enough there. It was, I suspect, tailor-made to fit the measurement of that exceptional case. It may fit other outsize measurements too. But experience has shown that it does not fit the ordinary run of cases. It is a mistake to treat it as a touchstone. It cannot serve as a substitute for the rule of law which say that, in order to succeed in an action for malicious prosecution, the plaintiff must prove to the satisfaction of the judge that, at the time when the charge was made, there was an absence of reasonable and probable cause for the prosecution. Let me give some of the reasons which show how careful the judge must be before he puts to the jury the question: “Did the “Defendant honestly believe that the accused was guilty?”
In the first place, the 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, or in the words of Lord Mansfield, that there is a probable cause “to bring the [accused] “to a fair and impartial trial”: see Johnstone v. Sutton [ 1 Term Rep. 493, 547.]. 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. Test it this way: Suppose he seeks legal advice before laying the charge. His counsel can only advise him whether the evidence is sufficient to justify a prosecution. He cannot pronounce upon guilt or innocence. Nevertheless, the advice of counsel, if honestly sought and honestly acted upon, affords a good protection: see Ravenga v. Mackintosh [ 2 B. & C. 693, 697] by Bayley J. So also with a police officer. He is concerned to bring to the trial every man who should be put on trial, but he is not concerned to convict him. He is no more concerned to convict a man than is counsel for the prosecution. He can leave that to the jury. It is for them to believe in his guilt, not for the police officer. Were it otherwise, it would mean that every acquittal would be a rebuff to the police officer. It would be a black mark against him and a hindrance to promotion. So much so that he might be tempted to “improve” the evidence so as to secure a conviction. 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.” (Emphasis added)
He further echoed at page776 that:
“The Defendant can claim to be judge not on the real facts but on those which he honestly and however erroneously believed; if he acts honestly upon fiction, he can claim to be judged on that,”
It is well settled in law that the test as to whether there is reasonable and probable cause includes both an objective and a subjective element.
In The Attorney General v Kevin Stuart Civil Appeal No. P162 of 2015 Bereaux J.A. stated in reference to the anti – gang legislation –
“[17] …. It is readily apparent from these provisions that proving gang membership in a Court of law is no slam dunk. It requires a careful compilation of the evidence showing how the gang is organised, how the gang activity is perpetrated through gang members and their respective roles in such activity. Evidence at trial must be carefully led to show the nexus between the gang, the members and the activity. In a case where the gang-related activity relates to narcotics, evidence of actual sales of the narcotics is required to prove the gang-related activity. Mere surveillance without more may not suffice. It is not enough to simply observe the accused making “interactions” with other persons. The evidence must be that narcotics were...
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