the republic of trinidad and tobago in the high court...

of 26

THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No CV2015-02596

BETWEEN

MARCUS SHAW

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Mr. Justice Robin N. Mohammed

Appearances:

Mr. Lee Merry for the Claimant

Ms. Cherisse Nixon instructed by Ms Shanna Lutchmansingh for the Defendant

JUDGMENT

I. Background:

[1] On the 7th January, 2013, the Claimant was driving his Mazda BT-50 pick-up truck in

a northerly direction in the left lane of the Diego Martin Main Road near the vicinity

of the Victoria Gardens exit. Whilst in the usual after work traffic, he was stopped by

police officers in a marked police vehicle who directed him to the Four Roads Police

Station. At the station, the Claimant was charged and issued a ticket for the offence of

of 26

“overtaking on the shoulder”. The Claimant refused to pay the penalty and chose

instead to plead his case before the Magistrate. He attended Court on several

occasions however, the matter was eventually dismissed due to the non-appearance of

the charging officer, Police Constable (“PC”) Cupid. The Claimant now claims

damages for false imprisonment and malicious prosecution.

[2] The Claimant’s case is that he was in the left lane of traffic when he observed a

vehicle to his left, on the shoulder, attempting to “squeeze” in front of him. The

Claimant sought to prevent the vehicle from entering his lane by blocking it with his

vehicle. At that point, the Claimant first realised that the vehicle to his left was

actually a marked police vehicle. The Claimant saw three officers occupying the

vehicle armed with machine guns and became anxious and frightened. The driver of

the police vehicle was eventually able to bring the Claimant to a stop by angling the

police car in front of the Claimant’s car. The Claimant was then told by one of the

officers to proceed to the Four Roads Police Station where he was charged and issued

a ticket for “overtaking on the shoulder.”

[3] The Defendant’s case is that on the 7th January, 2013, PC Cupid and PC Blackman

were posted on static duty on the Diego Martin Main Road and observed the Claimant

illegally driving on the shoulder. The officers put on their siren and proceeded to

pursue the Claimant and were eventually able to bring him to a stop. PC Blackman

then directed the Claimant to the Four Roads Police Station where PC Cupid lawfully

charged and ticketed the Claimant for the offence of “overtaking on the shoulder.”

II. Issues:

[3] The issues for determination by the Court are as follows:

1. Whether the Claimant is entitled to damages for wrongful arrest and/or

false imprisonment? The sub-issues which arise therefrom are:

i. Was the Claimant arrested and/or imprisoned? and

ii. If so, was the arrest/imprisonment lawful?

of 26

2. Whether the Claimant is entitled to damages for malicious prosecution?

The sub-issues arising therefrom are:

i. Was there reasonable and probable cause for the proceedings?

ii. If not, was the proceedings instituted or carried out maliciously?

3. In the event that the Court finds in favour of the Claimant, should the

Claimant be entitled to aggravated and/or exemplary damages?

III. Law:

False Imprisonment:

[6] Clerk & Lindsell on Torts1 sets out two components for the tort of false

imprisonment:

“False imprisonment is the unlawful imposition of constraint on

another’s freedom of movement from a particular place. The tort is

established on proof of (i) the fact of imprisonment; and (ii) the

absence of lawful authority to justify that imprisonment. For these

purposes, imprisonment is a complete deprivation of liberty for any

time, however short, without lawful cause.”

It is established that mere constraint is sufficient:

“…a prisoner need not be placed under lock and key for the purposes

of this tort. It is enough that his movements are simply constrained at

the will of another. The constraint may be actual physical force

amounting to a battery or merely apprehension of such force, or it may

be submission to a legal process.”

“Any restraint within defined bounds which is a restraint in fact may

be an imprisonment.”

1 Para 15-23

of 26

If the arrest is unlawful it will amount to a false imprisonment:

“An unlawful arrest is a false imprisonment, and if the requirements of

the law as to making it clear to the arrested person that he is under

lawful arrest, or taking him before the appropriate authorities within a

reasonable time are not complied with, an arrest which might

otherwise be justified will be unlawful, grounding an action in false

imprisonment.”2

Issue 1 (i): Was the Claimant arrested and/or imprisoned?

[7] Counsel for the Claimant submitted that:

i. It was an undisputed fact that PC Blackman directed the Claimant to proceed

directly to the Four Roads Police Station.

ii. As a result, the Claimant was under a compulsion to follow the officers to the

Police Station and therefore his freedom of movement was constrained.

[8] The Defendant’s submissions on this issue were contradictory:

i. At first it was submitted that the arrest and detention of the Claimant was not in

dispute3 in which case the burden shifts to the arresting officers to justify the

imprisonment.

ii. It was then submitted that the Claimant was sent to the police station for

convenience so as to avoid obstructing the traffic and therefore suggesting that the

Claimant was not arrested.

[9] The law directs that when determining whether a Claimant was arrested, the form of

words used by the arresting officer is paramount. If the form of words amounts to a

command which would compel the Claimant, then it would amount to an arrest

notwithstanding the fact that no physical force was used. As Lord Parker C.J. stated

in Alderson v Booth (1969) QBD 271 at 273: 2 Para 15-24 3 Para 14 of the Defendant’s closing submissions.

of 26

“There may be an arrest by words, by saying I arrest you without any

touching, provided of course that the accused submits and goes with

the police officer. Equally it is clear, as it seems to me that an arrest is

constituted when any form of words is used which, in the

circumstances of the case, were calculated to bring to the accused’s

notice, and did bring to the accused’s notice, that he was under

compulsion and thereafter he submitted to that compulsion.”

“…the words used here ‘I shall have to ask you to come to the police

station for further tests’ were, in their clear context, words of command

which one would think would bring home to an accused that he was

under compulsion.”

[10] In the instant matter, PC Blackman never gave evidence and so the Court is not privy

to the exact words used to direct the Claimant to the police station. However, the

Court has before it the Claimant’s evidence that he was told to go directly to the

police station and that he felt that he was under a compulsion to do so4. The Court

also notes PC Cupid’s evidence, that he heard PC Blackman “directing the Claimant

to the Four Roads Police Station”5. It is therefore an undisputed fact that PC

Blackman issued a command to the Claimant to proceed to the Four Roads Police

Station.

[11] Therefore, the Defendant’s submission, that the purpose for directing the Claimant to

the Police Station was to prevent the obstruction of traffic and as a result, it was not

an arrest, is not persuasive. By directing the Claimant to the station, PC Blackman

constrained the Claimant’s freedom of movement for a period of time, which, in law,

amounts to an arrest. It is therefore the Court’s finding that the Claimant was indeed

arrested.

4 Para 9 of the Claimant’s witness statement. 5 Para 11 of the Defendant’s witness statement.

of 26

Issue 1 (ii): Was the Claimant’s arrest lawful?

[12] According to Clerk and Lindsell (supra), the arrest must be unlawful for there to be

a false imprisonment. The burden therefore now rests on the Defendant to justify the

arrest of the Claimant.

[13] Section 3(4) of the Criminal Law Act Chapter 10:04 (“CLA”) sets out the criteria

for an unlawful arrest:

“Where a police officer, with reasonable cause, suspects that an

arrestable offence has been committed, he may arrest without warrant

anyone whom he, with reasonable cause, suspects to be guilty of the

offence.”

The test inherent in section 3(4) of the CLA is, therefore, subjective because the

arresting police officer must have formed a genuine suspicion in his own mind that

the suspect has committed an offence. It is also partly objective since reasonable

grounds for the suspicion is required by the arresting officer, which must be judged at

the time the power of arrest was exercised.6

[14] The Court is required to look at the evidence of PC Cupid in some detail to determine

(i) what information he possessed at the time of the Claimant’s arrest that would have

led him to have a reasonable suspicion (subjective) and (ii) whether he could have

reasonably been led to suspect that the Claimant committed an arrestable offence7

(objective).

Evidence of PC Cupid:

[15] PC Cupid stated that he observed the Claimant’s vehicle proceeding in a northerly

direction on the shoulder of the Main Road passing several vehicles that were in the

legitimate lanes. The Claimant then filtered back into the legitimate left lane of the

Main Road. The Claimant then re-entered the shoulder lane a short distance after and

passed PC Cupid’s vehicle before merging back into the Main Road in the vicinity of

Victoria Gardens where the shoulder ended. Under cross-examination, PC Cupid

6 Justice Margaret Mohammed in Fraser v The A.G. CV2014-03967. 7 Justice Pemberton in Simon Fleming v The A.G. CV2012-02652.

of 26

maintained that the Claimant’s van was in the shoulder lane when it passed in front of

him.8 He further stated that as far as he was concerned, he was entitled to stop the

Claimant’s car because he, PC Cupid, saw the Claimant overtaking on the left.9

[16] The Claimant opposes PC Cupid’s evidence on two grounds: (i) that the story is

fabricated and that the Claimant was not overtaking on the shoulder, but rather he was

arrested because he refused to let PC Cupid squeeze in front of him; and (ii) PC

Cupid was not authorised to arrest him for such an offence under Section 93

MVRTA.

[17] It is settled law that in cases that largely concern issues of fact which are disputed

between the parties, the Court has to satisfy itself which version of events is more

probable in light of the evidence. To do so, the Court is obliged to check the

impression of the evidence of the witnesses on it against the: (i) contemporaneous

documents; (ii) the pleaded case: and (iii) the inherent probability or improbability of

the rival contentions (see Horace Reid v Dowling Charles and Percival Bain10 cited

by Rajnauth–Lee J (as she then was) in Mc Claren v Daniel Dickey11).

As I analyse each of the three limbs set out in Reid supra, I bear in mind that the

burden has now shifted to the Defendant to prove that the arrest and/or imprisonment

of the Claimant was lawful.

From the contemporaneous documents whose case seems more credible?

[18] Counsel for the Claimant made reference to the Pocket Diary and the Station Diary

extract as the material contemporaneous documents in the Claimant’s case against the

Defendant. He submitted that PC Cupid failed to make a proper entry into the Station

Diary about the incident and that the Court should draw the inference that this failure

is indicative of an attempt to cover up his improper conduct. Counsel also submitted

that PC Cupid admitted, under cross-examination, to failing to make any record of the

incident in his Pocket Diary as is required of police officers.

8 NOE page 75, line 40. 9 NOE page 82, lines 17. 10 Privy Council Appeal No. 36 of 1897 11 CV 2006-01661

of 26

[19] The Station Diary: Police conduct in this jurisdiction is governed by the Police

Service Act as well as the Trinidad and Tobago Police Service Standing Orders (the

“Standing Orders”). The Court notes that while these Standing Orders are not part of

the legislation, it does seem that police officers are bound to comply with them12.

Section 5(e) and Section 6 of Standing Order No. 17 of the Standing Orders require

that details of the incident be recorded in the Station Diary:

5(e). “In column 5 headed ‘Nature of Record’—enter the nature of the report

and details of the occurrences, observation or movements.”

6. “It shall be the duty of a police officer to enter the following in a station

diary:

i. Occurrences at a police station, branch or office;

ii. The name and address of the informant and time, date and place of the

incident reported including a brief detail of such incident;

iii. The arrival and departure of any visitor, the civilian or police, the purpose

of the visit and action taken or contemplated in connection with such

visit.”

With respect to the details of the “occurrences, observations or movements” required

under Column 5 of Section 5 (e), the Station Diary Extract merely states that the

Claimant was issued a ticket “for improperly overtaking on the left”. I find this level

of detail to be insufficient and not in compliance with what is required of a PC.

[20] The Pocket Diary: The Court notes that section 6 of Standing Order No. 16 states

that:

6. “The Pocket Diary is the police officer’s best safeguard against

allegations of dishonesty and acting in bad faith when performing their duties.

Therefore the officer shall—

i. Record therein all activities connected with the performance of his duties;

12 Paragraph 59 of Justice Devindra Rampersad’s decision in Dillon Haynes v The A.G. CV 2008-01274

of 26

ii. Record any details of all reports made to him including the name and

address of person(s) observations details of any investigations made and

statements (where necessary)…”

Section 9 of the Standing Order No. 16 states:

9. “Police officers attending Court Orderly Room and Court shall take with

them their official pocket diaries in which there are entries relating to the

specific cases in which they have to give evidence.”

Pocket diaries shall be regarded as exhibits and will be available for reference or

production to the Court and shall be kept until the expiration of such cases.”

Section 11 provides that the Pocket Diary should be kept for “two (2) years after the

date of completion or until any matters in connection with which there are entries in

such pocket diaries have been completed in Court, whichever is the latter. At the

expiration of that period, they may be destroyed.”

Accordingly, PC Cupid’s Evidence under cross-examination that he didn’t bring his

2013 pocket diary and that the pocket diary had a destruction date, thereby implying

that his was destroyed13, is not a persuasive argument to this Court. The Standing

Orders clearly require PC Cupid to bring his pocket diary with him to Court and that

it should not be destroyed within two years of its completion or until this Court matter

has finished. These omissions and/or failures of PC Cupid to follow proper procedure

and/or abide by the Standing Orders put his case in a negative light.

[21] The Letter to the Police Complaints Authority: In opposition, the Defendant

referred to certain omissions and/or inconsistencies contained in the Claimant’s letter

to the Police Complaints Authority (“PCA”), which, it was submitted, made the

Claimant’s case less credible, such as: (i) the failure to mention that PC Cupid

mistook his car for a black Hilux; (ii) the failure to mention his fear and the length of

time spent at the station; and (iii) the reference to the fact that the Claimant was

unsure of whether he was issued the ticket because the officer mistook his vehicle for

another or because the Claimant refused to let the officer squeeze in his lane.

13 NOE Page 97, Line 13- Page 99, Line 14.

of 26

When weighing the effect that these inconsistencies would have on the Claimant’s

case, the Court also considers the following matters:

i. That, as admitted by the Claimant under re-examination, the letter to the PCA was

written without legal advice14;

ii. Whether, in a letter such as this, the purpose of which is to prompt an

investigation into police misconduct, references to the Claimant’s fear and/or state

of mind during the incident would be relevant;

iii. Whether it is reasonable to expect the same level of detail and expertise in such a

letter as compared to the pleadings and witness statement drafted by legal

professionals for the Court.

[22] On a reading of the letter to the PCA drafted on or around the 24th January, 2013, it is

clear that the Claimant drafted the letter in an attempt to state only the sober facts of

the incident, which is an understandable position for a layman to take who is not

aware of the law of damages and compensation and who is not seeking such from the

PCA. Therefore, the absence of any references to the Claimant’s feelings of fear or

anxiety is understandable.

[23] I do find it strange, however, that the Claimant failed to mention the issue of the black

Hilux, especially in the second to last paragraph of the letter where he discusses his

uncertainty as to whether the police officers mistook his vehicle for another vehicle

overtaking on the shoulder. At this point it would have been sensible and relevant to

include that PC Cupid mistook his car for a black Hilux. This omission, while

noteworthy, must be considered along with the fact that the Claimant did not have

legal advice when drafting the letter and therefore, this Court does not expect the

level of detail to be the same as in his pleadings and evidence.

[24] Therefore, I find that the omissions in the letter to the PCA did not justify an adverse

inference from the Court. I therefore conclude that the contemporaneous documents

suggest that the Claimant’s version is more probable.

14 NOE Page 48, Line 32.

of 26

The inconsistencies in the pleaded case make the Claimant’s case more probable:

[25] At the outset, the Court notes that there were facts brought out in the evidence of PC

Cupid that were not pleaded in the Defence. For instance:

i. The Defendant never pleaded that the Claimant had entered the shoulder lane

twice before the officers stopped him.

ii. The Defendant pleaded that PC Cupid attempted to cut in front of the Claimant

from the left. PC Cupid’s evidence15 was that he pulled up next to the Claimant’s

vehicle from the left to signal him to stop but eventually the officers had to

manoeuvre their vehicle to the right where he angled in front of the Claimant’s

vehicle. Under cross-examination, PC Cupid admitted that his witness statement

contradicted his pleadings in this regard16.

iii. The Defendant pleaded that PC Blackman spoke to the Claimant and directed him

to the station. PC Cupid’s evidence was that PC Blackman exited the vehicle on

the Diego Martin Main Road when he directed the Claimant to the station. Under

cross-examination, PC Cupid stated that PC Blackman directed the Claimant to

the station from inside the police vehicle and never exited the vehicle until they

reached the station. He then stated that his witness statement was wrong and that

PC Blackman never exited the vehicle while on the Diego Martin Main Road17.

This apparent vacillation when giving his evidence was alarming to the Court. These

were facts that were crucial to how the incident unfolded and showed that PC Cupid

was either mixing up his facts or was not being forthright in his pleadings and

evidence, both of which are adverse to his credibility as a witness.

[26] On the other hand, I found that there were only two main discrepancies in the

Claimant’s pleaded case: (i) the fact that he mentioned for the first time in his witness

statement the presence of his brother and business partner who was allegedly a few

cars behind him in the same lane on the day; and (ii) that he stated for the first time in

his witness statement that there were two reasons for his apology to the officers. 15 At para 9 & 10 of PC Cupid’s witness statement. 16 NOE Page 82, line 8. 17 NOE Page 90, Line 25 to Page 92, Line 4.

of 26

[27] I find that the inconsistencies in the Claimant’s pleadings and evidence were not fatal

to his case for the following reasons:

i. Firstly, the Claimant’s brother did not give evidence and the Defendant failed to

convince the Court that the Claimant’s brother was in a position to witness the

incident to have been of any assistance to the Court.

ii. Secondly, the two reasons given for the apology in the witness statement did not

add much to either party’s case. They were not material facts but rather, were

mere expressions of the Claimant’s mind-set and/or opinion, which is not

persuasive on the issue of liability.

The contentions of the Claimant are more inherently probable:

[28] It was submitted that this is the most important limb of the Reid factors. Counsel for

the Defendant, in attempting to discharge its burden, submitted that the following

evidence from the Claimant made his case highly improbable:

i. That he was unable to recognise the marked Nissan X-Trail police vehicle even

when it pulled up alongside his:

The Claimant pleaded that he only realised the police vehicle after he moved up

his truck to block them from entering.18 This argument was maintained in his

evidence19. Counsel for the Defendant attempted to question the Claimant heavily

about his inability to recognise the police vehicle earlier but the Claimant was

unshaken in his answers and maintained that he only saw the police vehicle at a

glance and did not recognise it until he moved his vehicle forward to block it20.

There was no evidence to convince the Court that the Claimant, who was

focusing on the traffic in front of him, should have been able to recognise a police

vehicle trying to overtake from the shoulder from a mere glance.

I do not find anything improbable about this evidence.

18 Para 4 of Statement of Case. 19 Para 7 of Claimant’s witness statement. 20 NOE Page 8, Line 7 to Page 10, Line 10.

of 26

ii. That he was not aware that police officers use the shoulder lane as a matter of

course:

Under cross-examination, Counsel for the Defendant probed the Claimant on this

evidence and the Claimant admitted that while he has seen police vehicles driving

on the shoulder in the past, he was not aware that this was permissible21.

While it may appear improbable that a driver of some 23 years’ experience would

not know that police vehicles are allowed to drive on the shoulder, this

improbability only becomes relevant if it shows that the Claimant should have

recognized the police vehicle earlier than he claims he did. However, I am not

convinced that such an inference arises based on my analysis in (i) above.

iii. That despite his fear and anxiety, the Claimant failed to call his brother to: (i)

accompany him to the police station when he was first directed there; and to (ii)

support his case in the Magistrate’s Court or High Court proceedings:

As stated above, the Defendant has failed to show that the Claimant’s brother was

in a position to witness the incident and therefore that he would have been of

assistance to either the Magistrate or the trial Judge.

Under cross-examination, the Claimant stated that he left his cell in the car when

he was in the station building and therefore did not call his brother22. This

evidence was not challenged nor was he probed further on this issue.

iii. That he failed to hire an attorney for the Magistrate’s Court proceedings despite

his alleged fear for his reputation and sleepless nights:

Under cross-examination, the Claimant admitted that despite the fact that it was a

nerve wracking experience and that he feared possible conviction, he did not hire

an attorney nor did he seek legal advice for the proceedings at the Magistrate’s

Court23. The Claimant was never asked why he did not hire an attorney so the

Court cannot speculate on his failure to do so. Further, considering that this was a

21 NOE Page 17, Lines 25- 36. 22 NOE Page 16, Lines 16- 29 and Page 18, Line 22. 23 NOE Page 34, Lines 13- 23.

of 26

fairly minor traffic offence, it is not improbable for the Claimant to represent

himself at the Magistrate’s Court level. Indeed, this is not an uncommon

occurrence.

iv. That he had an important workday related meeting on the same day that his matter

was listed in the Magistrate’s Court; and that the Court adjourned the matter on

the day that PC Cupid was present in the Magistrate’s Court:

Counsel for the Defendant submitted that this evidence shows that the Claimant

did not feel a sense of urgency about this matter despite his claims of anxiety,

stress and mental anguish. As concluded in (iii) above, I do not find this

submission persuasive. Further, this evidence relates more to the issue of

damages.

v. That he chose not to follow up on his complaint with the PCA:

Under cross-examination, the Claimant admitted that the PCA acknowledged

receipt of his letter and informed him that the PCA would be addressing the issue

to the Police Complaints Division and left him two (2) numbers so that the

Claimant could contact that Division to follow up. The Claimant also admitted

that “there is no evidence to suggest that he followed up with the Police

Complaints Division”. He further admitted that he felt strongly about what had

occurred24. I find that there is little that the Court can take from this in support of

the Defendant’s case. The Claimant was not asked whether he actually did follow

up with the PCA despite the lack of evidence to prove it. Further, considering that

the Claimant has spent resources to retain counsel and bring a claim before the

High Court, is evidence that he does feel strongly about the incident.

[29] In opposition, I find that the following evidence given under cross-examination by PC

Cupid to be inherently improbable:

24 NOE Page 32, Line 25 to Page 33, Line 3.

of 26

i. That despite the fact that a lot of persons were reported to be driving on the

shoulder in that area during peak traffic times, not one other person did so

between 3:50 pm and 4:50 pm25.

ii. That the Inspector of Police would issue a directive that all offences are to be

ignored except for driving on the shoulder26.

iii. That PC Cupid would operate a static duty where every time someone commits an

offence the officers have to enter their vehicle, turn on their siren, give chase,

issue a ticket and then return to their static duty position27.

i. That when police officers fire up their siren and pursue a vehicle and the vehicle

fails to stop causing the police to have to cut in front the vehicle to get it to stop,

that in those circumstances, PCs Cupid and Blackman would not feel compelled

to search the Claimant’s vehicle, check to see if the Claimant has an outstanding

warrant for arrest28, or charge the Claimant for failing to stop29;

These improbabilities lead me to conclude that: (i) PCs Cupid and Blackman were not

on static duty that day; and (ii) the officers never put on their siren or pursued the

Claimant.

[30] Given the improbable contentions in the Defendant’s case, I find that the Defendant

has failed to discharge its burden to prove that the arrest was lawful. The evidence of

the witnesses when compared to the contemporaneous documents, the pleaded case

and the inherent probability of the rival contentions all weigh in favour of the

Claimant’s case being more probable.

Accordingly, I find that the Claimant is entitled to damages for False Imprisonment.

25 NOE Page 67, Line 46. 26 NOE Page 70, Line 36. 27 NOE Page 76, Line 22. 28 NOE Page 74, Lines 33- Page 75, Line 24. 29 NOE Page 73, Lines 25- Page 74, Line 6.

of 26

Issue 2: Malicious Prosecution:

The Court finds that PC Cupid lacked reasonable and probable cause for initiating the

proceedings:

[31] The case of Cecil Kennedy v Donna Morris & The A.G. Civ App No. 87 of 2004

sets out the criteria for the tort of malicious prosecution as follows:

“To succeed in an action for damages for malicious prosecution a plaintiff

must prove:

i. The prosecution by the defendant of a criminal charge against the

plaintiff before a tribunal into whose proceedings the criminal

courts are competent to enquire;

ii. That the proceedings complained of were terminated in the

plaintiff’s favour;

iii. That the defendant instituted or carried on the proceedings

maliciously;

iv. That there was an absence of reasonable and probable cause for the

proceedings; and

v. That the plaintiff suffered damage.”

[32] Hicks v Faulkner (1878) 8 QBD 167 at 171 defined reasonable and probable cause

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.”

[33] The question of whether or not there was reasonable and probable cause for a

prosecution is one of fact. It is to be determined objectively and subjectively, that is

of 26

to say: objectively, whether a reasonable man having knowledge of facts that the

defendant knew at the time he instituted the prosecution, would have believed that the

Claimant was guilty of the alleged crime and subjectively, whether the defendant who

laid the charge or carried on the proceedings honestly believed that the plaintiff was

guilty. What the defendant believes must be based upon facts known to him, at the

time that he initiated the prosecution30.

[34] Having found that the arrest of the Claimant was unlawful, the Court has found that

the Defendant’s case was fabricated against the Claimant based on a motive to exact

revenge for the Claimant’s refusal to allow the police officers to “squeeze” in front of

him. Considering these findings, the Court concludes that PC Cupid lacked

reasonable and probable cause to charge the Claimant.

The Court finds that the charges were laid against the Claimant maliciously:

[35] It is settled law that a claimant who alleges malicious prosecution has the burden of

proving, not only that the prosecutor lacked reasonable and probable cause, but also

that he was actuated either by spite or ill-will against the Claimant or by indirect or

improper motive. The absence of reasonable and probable cause is generally a good

indication that the prosecutor had no proper motive but it is not conclusive evidence

of malice in every case. If the prosecutor does not believe in the merits of the case

that he has brought against the accused that will be strong evidence of malice.

[36] In Browne v. Hawkes (1891) 2 QB 718 at 722, Cave J. stated as follows:

“Now malice, its widest and vaguest sense, has been said to mean any

wrong or indirect motive; and malice can be proved, either by shewing

what the motive was and that it was wrong, or by shewing that the

circumstances were such that the prosecution can only be accounted for by

imputing some wrong or indirect motive to the prosecutor. In this case, I do

not think that any particular wrong or indirect motive was proved. It is said

that the defendant was hasty and intemperate…. He may also have been

30O’Hara v. Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129 at 138; Mario Richards v.

The Attorney General CV 2006-02973, at pp. 14-15.

of 26

hasty, both in his conclusion that the plaintiff was guilty and in his

proceedings; but hastiness in his conclusion as to the plaintiff’s guilt,

although it may account for his coming to a wrong conclusion, does not

shew that presence of an indirect motive…”

[37] In Manzano v The A.G. Civ Appeal No. 151 of 2011, Mendonca JA stated that:

“…even if a Claimant cannot affirmatively establish spite or ill-will or some

other improper motive, he may still succeed in establishing malice if he

can show an absence of proper motive.”

Mendonca JA continued at paragraph 48:

“…for example if the Plaintiff demonstrates that a prosecution was

launched on obviously insufficient material, the insufficiency of the

material may support an inference of malice as well as demonstrate the

absence of reasonable and probable cause.”

“It therefore should be a question of degree whether malice should be

inferred from the absence of reasonable and probable cause. If the

prosecution was launched on obviously insufficient material that may

suffice to support the inference of malice.”

In coming to his decision, Mendonca JA stated at paragraph 53 that:

“In any event there was an absence of an honest belief in Constable Adams

that there was a case fit to be tried. In my judgment this provides strong

evidence of the absence of proper motive sufficient to infer malice.”

[38] Based on the findings above, the Court holds that the prosecution was initiated

maliciously based on: (i) the fact that the charge was laid on obviously insufficient

evidence; and (ii) the charge was laid out of revenge.

I therefore find that the Claimant is entitled to damages for malicious prosecution.

of 26

Issue 3: Damages:

Has the Claimant specifically proved his special damages?

[39] It is trite law that special damages must be specifically pleaded and proved31. The

Claimant pleaded that he earned a monthly salary of $11,800.00 from his business

and that he lost approximately 12 hours of time amounting to a loss of $885.00. He

further pleaded that he incurred travel expenses to and from Court amounting to

$100.00. In support, he adduced into evidence a copy of his pay slip which evidenced

a pre-deduction monthly salary of $11,800.00. There were no other documents

adduced to establish: (i) the nature of his business, i.e. whether he receives a fixed

monthly salary and therefore gets paid regardless of the hours spent away from work,

or if he is paid on an hourly basis or based on the amount of work done; (ii) that he

indeed spent 12 hours away from work as a result of having to attend the Magistrate’s

Court; and (iii) evidence by way of receipts for the expenditure on gas, assuming he

used his vehicle to travel to Court.

Considering these gaps in evidence, I do not find that the Claimant has specifically

proved his special damages.

For how long was the Claimant detained?

[40] The period of time for which the Claimant was detained is in dispute. The Claimant

alleges it was 30 minutes while the Defendant alleges it did not exceed 10 minutes.

The Defendant’s case is supported by the fact that on the Fixed Penalty Notice, it

states that the incident occurred at 4:50 pm and the Claimant was given the ticket at

5:00 pm32.

[41] It is settled law that the false imprisonment would have begun from the time the

Claimant was directed by PC Blackman to proceed to the Four Roads Police Station

up until the time the Claimant left the Station after being issued the ticket.

[42] On the Defendant’s version, PC Cupid’s evidence was that PC Blackman exited the

vehicle and directed the Claimant to the Station and that both vehicles were located

31 Halsbury’s Laws of England. Damages Vol. 29 (2014). 32 See Notice of Opportunity to Pay Fixed Penalty attached to Claimant’s witness statement as “MS.1.”

of 26

near to the entrance of the Four Roads Station33. The Claimant then drove to the

station followed by the police and “…we all entered [the building] together.” The

Claimant was then informed of the offence and proceeded to offer an apology.

Thereafter, the Claimant got into an argument with PC Blackman. PC Cupid then

asked for the Claimant’s driver’s permit and certificate of insurance and the Claimant

retrieved and presented to PC Cupid the requested documents. PC Cupid took the

documents, wrote the ticket and then returned the documents to the Claimant along

with the ticket and again informed the Claimant of the offence. Afterwards, the

Claimant left the station.

[43] Counsel for the Claimant did not cross-question PC Cupid heavily about the time the

Claimant spent in the station. However, he made heavy weather of the fact that PC

Cupid failed to record the time of arrival and departure of the Claimant in the Station

Diary as required by the Standing Orders.

[44] Given the evidence as adduced by PC Cupid, I am of the opinion that the Claimant’s

false imprisonment would have lasted for more than 10 minutes on the most

conservative assessment by this Court based on the following:

i. PC Blackman exited his vehicle to direct the Claimant to the station which means

he would have had to re-enter his vehicle before proceeding to the Four Roads

Station. The Court estimates that, given the heavy traffic on the road along with

the proximity of the Four Roads Station to the incident, it would have taken at

least 5 minutes from the time PC Blackman exited his vehicle to direct the

Claimant to the station up until they all arrived at the station.

ii. The parties entered the police building together. The Court estimates at least 1

minute for the vehicles to park, the parties to exit their vehicles and then enter the

building.

iii. PC Cupid then informs the Claimant of the offence. The Claimant then offers an

apology. The Claimant then gets into an argument with PC Blackman where he

33 Para 11 of PC Cupid’s witness statement.

of 26

denied the offence. No evidence is given as to the length of time of this argument

but the Court estimates at least another 5 minutes for the above events.

iv. It is likely that the Claimant would have had to return to his vehicle to get his

certificate of insurance as requested by PC Cupid especially given the fact that the

Claimant was first informed of the offence inside the building. The Court

estimates another 2 minutes for the Claimant to return to his vehicle, find his

certificate of insurance and return to the building to give it to PC Cupid.

v. PC Cupid would then have to peruse the documents, write the ticket and return

the documents to the Claimant. The Court estimates at least another 5 minutes to

complete this procedure.

[45] The Court therefore estimates a total of at least 18 minutes of detention.

[46] Counsel for the Defendant submitted the case of Mahadeo Sookhai v The A.G.

CV2006-00986 where the Court awarded $6,000.00 for 30-minute period of

detention.

[47] In opposition Counsel for the Claimant submitted the case of Julio Ready v A.G. CA

No. 167 of 2009 where an award of damages in the amount of $10,000.00 was given

for 2 minutes detention. The Court of Appeal increased the award to $40,000.00.

It is noted in Ready, that the Court of Appeal increased the damages because it found

that the trial Judge did not take into account the aggravating factors, which included

“the fact that a young child was placed in a cage by a police officer for the purpose

of being photographed by the Press in the presence of several strangers.”34 In that

case, the child was merely 4 years old. In any event, Smith J.A. disagreed with the

increased award given by the Court of Appeal and thought that a more appropriate

award would have been $20,000.00, even factoring that it was a case involving a

young child.

34 At page 2.

of 26

[48] I find that the facts in Mahadeo is most analogous to the instant case. Justice Moosai,

(as he then was) at paragraph 53 of the judgment, noted the following in his

conclusion on the issue of false imprisonment:

“In the instant case, the Claimant was expressly informed that he was

under arrest prior to the assault. After the assault, he was told to get inside

the vehicle because he was under arrest. After attempting to get into the

vehicle, he was then commanded to walk to the station, but collapsed on the

way. It is clear that the Claimant was completely deprived of his liberty for

approximately half-an-hour without lawful cause, and that the Defendant

would be liable for the tort of false imprisonment.”

Having regard to the passage of time since the decision in Mahadeo, a slightly higher

award than the $6,000 is justified. Accordingly, I find an appropriate award for at

least 18 minutes of detention to be no more than $10,000.00 in general damages

inclusive of aggravated damages for false imprisonment.

The matter involved a minor traffic offence but the Claimant was of good character:

[49] In assessing the damages for malicious prosecution, the Court notes the learning from

the Board of the Judicial Committee of the Privy Council, which examined damage to

reputation in the case of Terrence Calix v The Attorney General (2013) UKPC 15.

In Terrence, the Privy Council attempted to distinguish an appellant’s low standing

in life, or one’s oddity of personality and/or eccentricity from good character by

stating that the fact that a person chooses to live a certain way or occupies a low

standing in life does not mean his damage to reputation should be reduced. What is of

utmost importance is whether the appellant was of good character and the seriousness

of the crime. At paragraph 16, the Board cited with approval the following passage

from the authors of Clayton and Tomlinson on Civil Actions against the Police 3rd

edition at paragraph 14—064:

“The seriousness of the offence for which the claimant was prosecuted

should be considered. The more serious the offence the greater the damage

to the claimant’s reputation. Thus, for example, accusations such as

of 26

dishonesty or sexual misconduct will cause more damage than

accusations of minor public order offences or assaults. A money figure

should be placed on this reputation damage. The award should be

increased if the prosecution received wide publicity.”

“The claimant’s reputation should then be considered. If he is of good

character then the loss of reputation and sum should not be reduced. If, on

the other hand, he has previous convictions then there will be reductions in

his loss of reputation damages.”

In this light, the Court takes into account that the instant matter involves a very minor

traffic offence and that there is no evidence that the matter attracted wide publicity.

However, there is no evidence that the Claimant had previous convictions and

therefore, I conclude that he was a man of good character.

[50] The most suitable case submitted by Counsel for the Claimant was Imran Khan v

The A.G. CV 2013-04559 where an award of $75,000.00 for damages including

aggravated damages was given where the Claimant was maliciously prosecuted for

two (2) offences: (i) that the vehicle driven by the claimant was being used contrary

to the insurance certificate in breach of Regulation 8 of the Motor Vehicle and Road

Traffic Act; and (ii) for allowing his vehicle to stand on the road so as to cause

unnecessary obstruction.

I find that the first offence in Khan was more serious than in the instant case as it was

alleged that the officer in Khan was attempting to use his police vehicle as a taxi.

Secondly, the award given in Khan was given for two offences whereas in the instant

case there was only one offence.

I also find that unlike Khan, the aggravated damages in this case are minimal. I do

not find that the Claimant has proven significant damage to his dignity, humiliation or

the damage to his reputation and standing in the eyes of others that resulted from

having to attend proceedings in the Magistrate’s Court. He has given no evidence of

which clientele would have seen him in Court and/or how this charge has adversely

affected his reputation or his business.

of 26

Accordingly, I award the amount of $50,000.00 in general damages inclusive of

aggravated damages for malicious prosecution.

Exemplary damages:

[51] I am also of the view that this is an appropriate case for the award of exemplary

damages for the oppressive, arbitrary or unconstitutional action by the servants of the

State. The outrageous conduct on the part of PC Cupid and Blackman is deserving of

public condemnation and excoriation. The central requirement for exemplary

damages has always been the presence of outrageous conduct disclosing malice,

fraud, insolence, cruelty and the like35.

[52] The Claimant claimed that he is entitled to exemplary damages for the following

reasons:

i. The Claimant was detained on a busy roadway in full view of members of the

public;

ii. The police officers caused traffic on a busy roadway to come to a standstill as a

result of their unlawful actions;

iii. The charges against the Claimant were completely fabricated;

iv. PC Cupid charged the Claimant for the very offence that PC Cupid had

committed while driving a marked police vehicle and while dressed in police

uniform;

v. The police action outlined above was oppressive, arbitrary and unconstitutional.

Considering that the Court has found that PCs Cupid and Blackman fabricated the

case against the Claimant, I am of the opinion that this is a serious abuse of authority

and on this ground alone, the only safeguard against such arbitrary and oppressive

police behaviour is the Court’s willingness to expose such behaviour and uphold the

rights of citizens. As noted by the Honourable de la Bastide C.J. in Bernard v

Quashie, “the function of exemplary damages is not to compensate but to deter.”

35 McGregor on Damages at para 447.

of 26

[53] Rajkumar J (as he then was) noted in the case of Mustpaha Ghanny v The A.G

CV2015-01921 at para 114 that “…it is the court’s duty to set an award of exemplary

damages in an amount that may give pause to officers contemplating such abuse in

future, and to their employers who do not take steps to hold such officers

accountable.”

[54] I find that the facts in the case of Marvin Johnson v The A.G CV2011-03482 are

most analogous to the instant case. In Johnson, Rampersad J, made an award for

exemplary damages in the amount of $45,000.00. This case similarly concerned

police officers fabricating evidence against a claimant.

Justice Rampersad stated at paragraph 95:

“In this case, this court noted that the Claimant was, for some inexplicable

reason, made the target of a deliberate attempt to fabricate evidence

against him and to tarnish his reputation. This court deprecates this

behaviour by the officers involved and wishes to award for exemplary

damages to deter the recurrence of such behaviour. To this court, it is

unacceptable for the officers to hide behind the allegations of the alleged

loss of the Station Diary and of their personal diaries and to come to court

and to also allege the loss of the prosecution file containing the alleged

written confession and yet subject the claimant to the added burden of

going through the civil case notwithstanding the fact that not one shred

of real evidence could be relied upon or produced by the officer to

vindicate his decision to bring the charges against the Claimant. The

retention and maintenance of official records such as the diaries of

officers who are under a duty to make a contemporaneous record of their

activities and station diaries and prosecution files, to my mind be seen as

a serious duty imposed upon the police service in order to ensure

transparency and preserve public trust in the police service. When all

written contemporaneous records mysteriously disappear as in this case,

serious questions as to the bona fides of the parties involved arise and, to

my mind, need to be investigated. (Emphasis mine)

of 26

In those circumstances, the court awards the sum of forty five thousand

dollars as exemplary damages…….”

Pursuant to the similarities in Johnson, I similarly award $45,000.00 in exemplary

damages against the Defendant.

IV. Disposition:

[52] In light of the above analyses and findings, and having reviewed the authorities, I

have concluded that the Claimant’s arrest and detention were unjustified and that

his prosecution was indeed malicious. Consequently, I hold that the Claimant is

entitled to an award of damages inclusive of aggravated and exemplary damages

for wrongful arrest/false imprisonment and malicious prosecution.

[53] Accordingly, I give the following awards in damages to the Claimant:

i. General & aggravated damages for false imprisonment: $10,000.00

ii. General & aggravated damages for malicious prosecution: $50,000.00

iii. Exemplary damages for false imprisonment and malicious

prosecution: $45,000.00

iv. Costs of the Claim to be paid by the Defendant to the Claimant quantified on

the prescribed scale of costs in the sum of $24,750.00.

v. Stay of execution for 28 days.

Dated this 7th day of March, 2017

___________________

Robin N. Mohammed

Judge

the republic of trinidad and tobago in the high court...

Documents