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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

San Fernando

Claim No. CV2015-03383

BETWEEN

TREVOR KING

RENO SAMPSON

RON SAMPSON

KARRELL PAVY

GARFIELD JOSEPH

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before the Honourable Mr. Justice Frank Seepersad

Date of Delivery: October 29, 2019.

Appearances:

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.

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DECISION

1. 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.

2. 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.

3. Before this Court the First, Second and Fifth Claimants testified and two

police officers testified on behalf of the Defendant.

ISSUES

3. The primary issues which fell to be decided on the issue of liability are as

follows:

(i) Whether there was reasonable and probable cause to charge each

Claimant with the offence being a gang member and

(ii) Whether Police Corporal Bernard was motivated by malice when he

elected to prosecute the Claimants?

LAW

Anti-Gang Act (No. 10 of 2011)

4. The following definitions can be found at Section 4 of the Anti-Gang Act:

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“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.

5. 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.

6. 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.”

7. 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.”

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Malicious Prosecution

8. 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.

9. 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.

10. The Claimants in the Statement of Case outlined the Particulars of Malicious

Prosecution upon which their respective claim was premised.

Reasonable and Probable Cause

11. 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.

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12. 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.”

13. 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?”

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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:

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“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,”

14. 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.

15. 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 sold by the accused to someone. This

would include proof of exchange of money and the actual price paid.

Undercover detection may be necessary. The best evidence would no

doubt be that of a former member of the gang who has direct knowledge

of its activities.

[18] Taking into account the definitions of gang, gang member and gang-

related activity, it was necessary for the appellant to show that PC Phillips

had a reasonable basis for suspecting that:

(i) Stuart belonged to a gang consisting of his wife, Kerwin Rocke

and himself; and that he, in combination with his wife, or Kerwin

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Rocke, or both, engaged in the sale of narcotic drugs (being a gang-

related activity) either through all or any of them or through an

agent;

(ii) or that Stuart acted as an agent for, or as an accessory of, the

gang, or voluntarily associated himself with the gang-related

activity (the sale of a narcotic drug)

(i) or that Stuart acquiesced in, consented or agreed to, or directed,

ordered, authorised, requested or ratified the sale of narcotics.

[19] To prove reasonable suspicion it is important to show a nexus

between the gang members, in this case, Stuart, Stuart’s wife and Kerwin

Rocke. It is necessary to provide evidence showing that there was a

reasonable basis for suspecting the three alleged gang members were

acting in concert to sell a narcotic drug. Evidence of their respective roles

as gang members in the activity would also be required. Was he

responsible simply for selling the narcotics? Was he responsible for making

contact with purchasers? Was the wife’s role merely to provide the facade

of legitimacy by selling in the shop? What role did Rocke play? It is not

enough simply to show Stuart acting alone (unless the evidence also

pointed to agency). If that was the only evidence, then he should have

been arrested for the sale of narcotics and not for being a gang member.

[20] The best evidence no doubt would be information emanating from a

former member of the gang intimately acquainted with Stuart’s role, by virtue

of his own participation in the activity or, a confession from Stuart himself. If

a former gang member is the source of that information he could be identified

as a “former gang member” without necessarily naming him so as to allow the

Court to judge the basis of reasonable suspicion.

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[21] But details of the gang activity and gang membership, the nexus between

the activity and the gang member and his role in the gang and in the activity,

are required….”

The Objective Test:

16. In Cecil Kennedy v The Attorney General and Others Civil Appeal No. 87 of

2004 the Court of Appeal approved the objective test as being whether a

reasonable man assumed to know the law and possessed of the information

in fact possessed by the arresting officer, would believe that there was

reasonable and probable cause for the arrest.

17. Sharma CJ at paragraph 19 of his judgment therein stated the relevant

principles as follows: reasonable and probable cause does not depend upon

the actual existence, but upon a reasonable belief held in good faith in the

existence, of such facts as would justify a prosecution; it is not necessary for

the prosecutor to test every fact or to ascertain whether there is a defence;

the belief in the existence of facts that would justify a prosecution or the belief

in the accused’s guilt may arise out of the recollection of the prosecutor; a

prosecutor is entitled to rely on reasonable hearsay evidence.

18. Further, the Court of Appeal in Gloster v. The Attorney General of Trinidad

and Tobago Civ. App. No. 274 of 2012 cited at paragraph 13 the following

principles in Halsbury’s as instructive:

“There may be reasonable and probable cause for preferring a criminal

charge even though the prosecutor has before him only a prima facie case,

or such as might not be admissible before a jury, and the question will be

whether the impression produced on the mind of the prosecutor by the

facts before him was such as would be produced on the mind, not of a

lawyer, but of a discreet and reasonable man.”

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The Subjective Test:

19. The subjective test is whether Corporal Bernard honestly believed that the

Claimant was guilty. The honest belief required of Corporal Bernard is not a

belief that the Claimants were “…guilty as a matter of certainty, but that there

was a proper case to lay before the Court”: Trevor Williamson v The Attorney

General 2014 UKPC 29 at para. 14 per Kerr L.J.

20. The relevant evidence to satisfy the tests as outlined must be confined to the

information that was possessed by Corporal Bernard at the time that the

charges were laid. Once the Court is satisfied that there was reasonable and

probable cause to prosecute, the question of malice does not arise. If the Court

however considers that there was an absence of reasonable and probable

cause it must then be established that the Police Officer was motivated by

malice in charging the Claimants.

Malice

21. In Brown v. Hawkes [1891] 2 QB 718 at page 722 Cave J. defined “malice” and

stated as follows:

“Now malice, in 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 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 the presence of any indirect motive …”

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At page 728, Lord Justice Kay stated as follows:

“As I understand the argument for the plaintiff, it was said that the

evidence to prove malice was that the Defendant did not make proper

inquiry as to the facts of the case. If that is all, and if that evidence is

sufficient, the result would be that the finding on the first question put to

jury, that the Defendant did not take proper care to inquire into the facts

of the case, would, without more, determine the action in favour of the

plaintiff. That cannot be so and when I look at the evidence (as I have done

with care) to find what evidence there was of a sinister motive, I can find

none on which the jury could reasonably find that the Defendant was

actuated by malice.”

22. It is further a general proposition that evidence of lack of reasonable and

probable cause may be considered evidence of malice. However this general

proposition is apt to be misunderstood. In the case of Hicks v Faulkner (supra)

at page 174 it was stated that,

“In an action of this description the question of malice is an independent

one- of fact purely- ……. [T]he malice necessary to be established is not

malice in law such as may be assumed from the intentional doing of a

wrongful act (see Bromage v Prosser (1) per Bayley H) but malice in fact-

maus animus- indicating that the party was actuated either by spite or ill-

will towards an individual, or by indirect or improper motives, though these

may be wholly unconnected with any uncharitable feelings towards

anybody.”

It was further stated at page 175 of the judgment that,

“[E]vidence of malice is a question wholly for the jury, who, even if they

should think there was want of probable cause might nevertheless think

that the Defendant acted honestly and without ill-will, or any other

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motive or desire than to do what he bona fide believed to be right in the

interest of justice –in which case they ought not, in my opinion, to find

the existence of malice.”

23. In Trevor Williamson (supra.) at paragraph 11, the Board, citing A v NSW

[2007] HCA 10, identified a good working definition of what is required for

proof of malice in the criminal context as follows:

“What is clear is that, to constitute malice, the dominant purpose of the

prosecutor must be a purpose other than a proper invocation of the

criminal law – an ‘illegitimate or oblique motive’. That improper purpose

must be the sole or dominant purpose actuating the prosecutor.”

24. Later, at paragraph 12, their Lordships stated that an improper and wrongful

motive lies at the heart of the tort and this improper motive must be the

driving force behind the prosecution. In other words, states the Board, “it

must be shown that the prosecutor’s motives is for a purpose other than to

bring a person to justice.” “The wrongful motive involves an intention to

manipulate or abuse the legal system.” Their Lordships also cautioned that

“proving malice is a “high hurdle” for the claimant to pass.”

25. In circumstances where a police officer believes that he had enough evidence

to prosecute the accused based on his understanding of the law, no malice

would be inferred: Sandra Juman v The Attorney General Civil Appeal No. 22

of 2009 at paragraph 26.

26. In Deosaran Palakdhari v The Attorney General CV2007-1747 Dean-Amorer J

commented on the effect that the receipt of advice and/ or instructions has

on malice. She stated at paragraphs 18 and 19:

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“18. The available authorities suggest that a prosecuting officer will not be

liable for the tort of malicious prosecution where he lays all the facts of his

case fairly before counsel and acts bona fide on the opinion of counsel see

Ravenga v Mac Kintosh (1871) 2BSC541. Similarly, the fact that the advice

of the Director of Public Prosecutions may have been sought is relevant but

not conclusive. See Clerk and Lindsell on Tort (18th ed.) para 16-31.

19. In my view the effect of the authorities is that the prosecutor’s reliance

on the advice or instructions of a competent authority will tend to negate

the presence of malice. However such reliance is not conclusive.”

27. Further, in The Attorney General v Kevin Stuart Civil Appeal No. P162 of 2015

Bereaux J.A. where the Court found that there was no malice on the part of

the charging officer and at paragraphs 38 -39 thereof the Court had this to say:

I can find no basis for doubting that PC Phillips had an honest belief that

there was a sufficient basis upon which to charge the respondent, however

wrong he might have been. His actions bear out this belief. He conducted

surveillance of the respondent’s premises for several months. After the

respondent’s arrest he conducted further investigations in the Marabella

area. Prior to charging he sought the advice of his senior officer who

himself consulted with ACP Fredericks. It cannot be objectively said that

when PC Phillips preferred the charge his dominant purpose was a purpose

other than the proper invocation of the criminal law.

In my judgment it is quite plain on the facts of this case that the three police

officers involved were motivated to apply the law fairly and with bona

fides.

28. In the instant case each Claimant categorically denied that he was a member

of a gang and there were no material contradictions between what was stated

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in their respective witness statements and their responses in cross-

examination. The Court however noted that the reply filed on their behalf was

poorly drafted and several statements which were alleged to have been made

by the Claimants were not expressly denied.

29. The evidence adduced on behalf of the Defendant was however characterized

by substantial inconsistency. The thrust of the Defendant's case was that

Corporal Bernard had engaged several surveillance exercises during 2011 and

based on his information and observations during the said exercises which

occurred on the 12th, 18th, 19th and 24th August 2011, as well as his reliance

upon utterances made by the claimants, he had an honest belief that the

Claimants were members of an unknown gang and that Trevor King was the

leader of same. Corporal Bernard testified that on the August 19, 2011 at

around 4:30 p.m. he conducted a surveillance exercise at Cumana Village, Toco

in the company of Constable Jeanville. During the said exercise his evidence

was that he observed the First Claimant standing in the vicinity of an ATM

machine with other persons with whom he spoke and from whom he received

money. Thereafter he directed the two other persons who handed over clear

plastic pockets which contained a green plant like material which resembled

marijuana.

30. He further testified that on the August 24, 2011 he conducted another

surveillance exercise with Constable Jeanville at Depot Road and he observed

that the Claimants were drinking together and there were touching their

raised glasses.

31. Corporal Bernard stated that he met the First Claimant after this at Sangre

Grande Police Station and that he told him that he was being investigated as

the leader of a gang and after administering the caution, the first Claimant

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replied "yes I have to make a living". No record of the said alleged reply was

made in the station diary.

32. Corporal Bernard further testified that between August 29th and August 31st

he recorded statements from persons and this information supported his

observations that King was the leader of a gang and that the other Claimants

were gang members. His evidence was that the other Claimants made

statements subsequent to their respective arrests and they admitted their

involvement in King's gang. Subsequently and upon the receipt of instructions,

the Claimants were charged and taken to Court but the cases against the

Claimants were discontinued by the Director of Public Prosecutions.

33. Constable Jeanville was called as a witness and he gave evidence as to his

involvement in the arrest of Reno Sampson, Ron Sampson and Karrell Pavy. He

also testified that the Second Claimant said under caution, "de boss, ah was

with Foxy gang but from now I staying by myself because Foxy only wah we to

sell drugs and kill people".

34. During cross-examination this Witness expressly denied being any part of

surveillance exercises on the 19th and 24th of August. He said he never

accompanied Corporal Bernard to Cumana Village or Depot road on either

date nor did he see anyone collecting money or clear packages containing

plant-like materials as Bernard had testified.

35. During the course of the trial Attorney for the Claimants brought to the Court's

attention Criminal App. No. 007 of 2014 Roger Ferguson v The State. In that

judgment the Court of Appeal considered evidence in relation to certain

documents which revealed that Corporal Bernard who was a witness in that

matter, had been charged for three offences and there was a statement by

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Constable Jeanville who alleged inter alia that Corporal Bernard had instructed

him to write up a blank search warrant which appeared to be endorsed with

copied signature and stamp of a Justice of the Peace. An allegation was also

made that Corporal Bernard had falsified a search warrant.

36. The Court of Appeal held that this fresh evidence of the allegations against

Corporal Bernard may have affected a fair minded tribunal’s view as to

Corporal Bernard's credit worthiness and the conviction of the appellant was

subsequently set aside.

37. This Court adopted the view that the alleged underlying conduct associated

with the pending charges against Corporal Bernard has persuasive force in

relation to his credit worthiness. The Court elected to ask Corporal Bernard

questions about the existence of the aforesaid charges against him and he

confirmed that he had pending charges. The Court also asked Constable

Jeanville as to whether he had made reports against Corporal Bernard in

relation to a search warrant. The witness confirmed that he had, that three

charges were proffered against Corporal Bernard, that he testified at the

preliminary inquiry and that Corporal Bernard had been committed to stand

trial.

38. Having reviewed the evidence, the Court found Constable Jeanville to be a

witness whose evidence was characterized by a degree of candour and

forthrightness. The Court found as a fact that he never attended any

surveillance exercise with Corporal Bernard on the 19th and 24th of August,

as Corporal Bernard stated. The Court also found no reason to support any

contention that Constable Jeanville would fabricate his evidence.

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39. Unlike Constable Jeanville, Corporal Bernard’s evidence and demeanour

engendered in the Court an unshakable feeling that he was not a witness of

truth. His surveillance evidence was materially contradicted by Constable

Jeanville. The Court also noted that the allegations made against him by

Constable Jeanville which were referenced in the Ferguson decision, involved

an element of dishonesty and corruption and this information was relevant

when one assessed his credit worthiness. The Court rejected Corporal

Bernard’s evidence that prior surveillance exercises had been conducted and

formed the view that there existed no reasonable and probable cause to arrest

to the Claimants and to charge them under the Anti-Gang legislation. The

Court also noted that the Director of Public Prosecutions discontinued the

charges against the Claimants.

40. According to Corporal Bernard, on numerous occasions which spanned several

years, he had cause, based on information, to search the Claimants but he

never found anything illegal on them. Based on the aforementioned

circumstance it should have dawned upon Corporal Bernard that the

information he had received from informants in relation to the Claimants was

not necessarily sound and a guarded approach needed to be taken in relation

to the reliability of his informants’ information. On the evidence adduced the

Court had no hesitation in concluding that Corporal Bernard's evidence of

surveillance over August 2011 was fabricated and he consequently operated

under a motive which was not predominantly premised on a desire to secure

the ends of justice. In the absence of surveillance evidence and given the

history as to the tenuous nature of his informants’ information , Corporal

Bernard could not have had an honest belief in the guilt of the Claimants and

malice can properly be inferred based on his alarming conduct and patent

dishonesty in this case. The Court also adopted the view that Corporal

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Bernard’s evidence as to information from informants was insufficient to

justify the laying of charges against the Claimants.

41. Corporal Bernard also asserted that he had obtained reliable information on

the 12th August 2011 relative to the Claimants and their involvement in gang

activity and further stated that he recorded these statements from

informants.

42. Corporal Bernard in his evidence stated that while the First Claimant was being

interviewed in relation to being a leader of a gang involved in gang related

activities he said, “Yes ah have to make a living”. However, no record of this

alleged reply was countersigned by the First Claimant in the station diary. As

outlined previously the Court did not view Corporal Bernard as a truthful

witness and found that the alleged statement, even if it was uttered, was

vague and could not amount to an admission for the purposes of the Act. The

Court, for example, wondered what “gang" referred to. Did the phrase refer

to a CEPEP gang? Surely there should have been further questions to clarify

any uncertainty.

43. Constable Jeanville testified as did Corporal Bernard that the Second Claimant

was interviewed on the 30th August 2011. Their evidence was that during

which interview he said, “the boss ah was in Foxy gang but from now I staying

by myself because Foxy only want we to sell drugs and shoot people”.

44. The Court has already noted its reluctance to rely on the evidence presented

by Corporal Bernard. Constable Jeanville was viewed as a credible witness but

the Court found that the alleged statement was also vague and needed

clarification. For example, questions should have been asked as to who Foxy

was. In addition the second named claimant should have been questioned as

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to when he was “in Foxy gang” and what was his initial role there? No where

did the Second Claimant admit that he committed an unlawful act under the

Act and given his assertion that he claimed he left the gang, a prudent

complainant may have explored the option of getting valuable evidence from

a “former gang member”. Ultimately the Court formed the view that the said

alleged statement could not amount to an admission which could stand as the

foundation upon which a charge under the Act could have been premised.

45. Police officers should treat with information from informants with a degree of

restraint and reserve and should adopt a cautious stance. They should be

hesitant, without more, to regard the information as the sole basis for

reasonable suspicion. Each circumstance would however vary and would be

dependent upon the officer’s view, in all of the antecedent circumstances, of

the veracity of the information. For example, information from a former gang

member may carry greater weight then information from someone

unconnected with the gang in question.

46. In this case, having rejected Corporal Bernard’s evidence, the Court found that

there is no credible evidence which demonstrated a nexus between the

Claimants and their involvement in an “unknown gang” and there is no

credible evidence of any actual sale of narcotics by any of the Claimants to any

other person.

47. Situations in which police officers lie and fabricate evidence cannot and must

not be tolerated in this society. Such behaviour undermines the generally good

work undertaken by hundreds of hard-working police officers. This type of

behaviour erodes public trust and confidence in the Police Service and violates

the rule of law. When a Court of superior jurisdiction finds as a fact that a

police officer has lied and fabricated evidence, such a circumstance must not

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be disregarded and the Commissioner of Police, upon being notified of the

Court’s decision, should engage with dispatch the process outlined under

section 123A of the 1976 Republican Constitution of Trinidad and Tobago (“the

1976 Constitution”) to exercise disciplinary control over errant officers in

furtherance of his mandate to manage the service .

THE COMMISSIONER’S AUHORITY

48. On the 13th April 2006, Parliament passed an amendment to the 1976

Constitution relating to the Police Service Commission. This was known as the

Constitution (Amendment) Act, 2006 (Act No. 6 of 2006). This amendment

concerned, inter alia, the powers of the Police Service Commission (“the

Commission”) and giving more powers to the Commissioner of Police

regarding the disciplining of police officers.

49. Prior to the amendment, police officers were disciplined by the Commission.

Proceedings were held before the Commission which had powers to make a

finding of guilt based on charges of misconduct and to impose a penalty for

such findings.

50. However, after the amendment, the disciplining of police officers, excluding

the Commissioner of Police and the Deputy Commissioners, was transferred

from the Commission to the Commissioner of Police. This was an attempt to

give the Commissioner of Police greater control over the management of the

police service and of the officers under his command.

Constitutional Amendment:

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51. The relevant section of the 1976 Constitution which bestowed the

Commissioner of Police with these powers is Section 123A which provide as

follows:

(1) Subject to section 123(1), the Commissioner of Police shall have the

complete power to manage the Police Service and is required to

ensure that the human, financial and material resources available

to the Service are used in an efficient and effective manner.

(2) The Commissioner of Police shall have the power to:

a. appoint persons to hold or act in an office in the Police

Service, other than an officer referred to in section

123(1)(a), including the power to make appointments on

promotion and to confirm appointments;

b. transfer any police officer; and

c. remove from office and exercise disciplinary control over

police officers, other than an officer referred to in section

123(1)(a).

(3) The functions of the Commissioner of Police under this section may

be exercised by him in person or through any police officer of or

above the rank of Superintendent acting under and in accordance

with his general or special instructions.

(4) In the performance of his functions under this section the

Commissioner of Police shall act in accordance with the Police

Service Act and the Regulations made thereunder.

52. The new Section 123A heralded significant changes in the procedure for the

discipline of police officers and in the powers to be exercised by the

Commissioner of Police in disciplining police officers.

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53. The Commissioner’s power to “remove from office and exercise disciplinary

control” in Section 123A(2)(c), which was previously exercisable by the Police

Service Commission, was construed in the leading authority Endell Thomas v

The Attorney General of Trinidad and Tobago (1981) 32 WIR 375. It should be

noted that the Privy Council in this case, although deciding the case after

Trinidad and Tobago became a Republic in 1976, was interpreting Section

99(1) of the 1962 Constitution, at a time when Trinidad and Tobago was still a

constitutional monarchy. Section 98 established a Police Service Commission

and Section 99 conferred its functions on it. Section 99(1) reads as follows:

Section 99 of the 1962 Constitution:

99 (1). Power to appoint persons to hold or act in offices in the

police force (including appointments on promotion and transfer

and the confirmation of appointments) and to remove and exercise

disciplinary control over persons holding or acting in such offices

shall vest in the Police Service Commission: provided that the

commission may, with the approval of the Prime Minister and

subject to such conditions as it may think fit, delegate any of its

powers under this section to any of its members or to the

Commissioner of Police or any other officer of the police force.

54. Lord Diplock in delivering the leading judgment understood Section 99(1) to

mean the following:

Page 384-385:

To "remove" from office in the police force in the context of section

99 (1), in their Lordships' view, embraces every means by which a

police officer's contract of employment (not being a contract for a

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specific period), is terminated against his own free will, by

whatever euphemism the termination may be described, as, for

example, being required to accept early retirement…

In their Lordships' view there are overwhelming reasons why

"remove" in the context of "to remove and exercise disciplinary

control over" police officers in section 99 (1) and in the

corresponding sections relating to the other public services must

be understood as meaning "remove for reasonable cause" of which

the commission is constituted the sole judge, and not as embracing

any power to remove at the commission's whim. To construe it

otherwise would frustrate the whole constitutional purpose of

chapter VIII of the Constitution which their Lordships have

described. It would also conflict with one of the human rights

recognised and entrenched by section 1 (d) of the Constitution, viz.

"the right of the individual to equality of treatment from any public

authority in the exercise of any functions." Dismissal of individual

members of a public service at whim is the negation of equality of

treatment.

55. With the passage of the Constitutional amendment in 2006, the powers of the

Police Service Commission regarding “removing and exercising disciplinary

control over persons” was transferred to the Commissioner of Police with the

enactment of the new Section 123A and with it, the same safeguards which

Lord Diplock placed on the meaning of “remove” under the 1962 and 1976

Constitutions remained the same by the very nature that there must be an

“autonomous commission” i.e. to insulate members of the civil service (i.e.

inter alia the police service) from political influence exercised directly upon

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them by the government of the day: Endell Thomas (1981) 32 WIR 375 at page

381 per Lord Diplock).

56. As such, the Commissioner of Police cannot act outside of the ambit as

prescribed by Section 123A(4) i.e. in accordance with the Police Service Act

and Regulations made under it.

Steps in disciplinary procedure:

57. Along that vein Part XIII of the Police Service Regulations (“the Regulations”)

makes provision for the disciplinary procedure to be followed.

58. By virtue of Regulation 151, a disciplinary offence is committed by an officer

who fails to comply with the Regulations. Such an officer is liable to disciplinary

proceedings in accordance with the procedure in Part XIII.

59. Regulation 152 provides for the suspension of the officer in circumstances

where the Commissioner of Police is of the opinion that the public interest or

the repute of the Police Service requires it. This is followed by an interdiction

of the officer, however, the officer must first be given an opportunity to be

heard: Regulation 153.

60. Of particular relevance is Regulation 155 which gives the Commissioner of

Police the discretion to establish disciplinary tribunals, in accordance with

Section 123A(3) of the 1976 Constitution.

61. A disciplinary tribunal has the power to dismiss the charge on any ground, or

find the officer guilty of the charge and impose a penalty that it is authorized

to impose by the Commissioner of Police in accordance with Section 123A(3)

of the 1976 Constitution: Regulation 157 (3).

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62. The Commissioner of Police may, after presented with a report from the

disciplinary tribunal on whether it is of the opinion that the officer should be

dismissed, dismiss (or not dismiss) the officer or impose any other penalty on

him: Regulation 169.

63. Regulation 173 provides the penalties which may be imposed on the officer

by the Commissioner of Police in disciplinary proceedings brought against an

officer in respect of a disciplinary offence:

a. dismissal, that is, termination of appointment;

b. reduction in an office, that is, removal to another grade with an

immediate reduction in pay;

c. reduction of remuneration, that is, an immediate adjustment of

remuneration to a lower point on the scale of remuneration attached

to the particular office;

d. deferment of increment, that is, a postponement of the date on which

the next increment is due, with corresponding postponements in

subsequent years;

e. stoppage of increment, that is, no payment for a specified period of an

increment otherwise due;

f. fine;

g. reprimand.

With regard to a fine, when such is imposed, the amount shall be deducted

from the pay of the officer in such matter as may be determined by the

Commissioner of Police: Regulation 173(2).

64. A breach of the Regulations by a police officer will trigger the disciplinary

procedure. Given the regulations outlined in Part XIII of the Police Service

Regulations the Commissioner of Police must firstly establish a disciplinary

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tribunal (Regulation 155) and after the findings of the tribunal are to be

presented to him (Regulation 169), he retains the discretion to dismiss the

officer.

65. Based on the evidence adduced in this case and the findings of fabrication of

surveillance evidence, it is difficult to fathom why Corporal Bernard should

remain as a member of the Police Service. In an attempt to weed out

undesirable officers from the service, legislative intervention should be

contemplated to treat with Court rulings which find that misconduct occurred,

as being prima facie proof of misconduct thereby imposing upon the officer

the burden of establishing that his service should not be terminated. Officers

who abuse the authority vested in them should be made to bear the burden

of satisfying the awards of damages and their suitability to continue holding

office has to be considered.

DAMAGES:

66. The next issue to be determined is the nature and extent of damages that

ought to be awarded to the Claimants on their claims for malicious

prosecution.

67. Citing Mc Gregor on Damages, 17th ed. (2003) at paragraphs 38-004 to 38-005,

Jamadar JA in Thadeus Clement v The Attorney General of Trinidad and

Tobago Civ App. 95 of 2010 at paragraph 12 listed the relevant heads of

damages for the tort of malicious prosecution as follows:

a. injury to reputation; to character, standing and fame.

b. injury to feelings; for indignity, disgrace and humiliation caused and

suffered.

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c. deprivation of liberty; by reason of arrest, detention and/or

imprisonment.

68. In addition, aggravating factors that can justify an uplift in the form of an

award for aggravated damages are to be considered.

69. Lawrence LJ in Walter v Alltools (1944) 61 TLR 39, expressed the view that

damages may also be given for any injury to reputation, he stated, “a false

imprisonment does not merely affect a man’s liberty; it also affects his

reputation.”

70. In Thaddeus Bernard v Quashie Civil Appeal No. 159 of 1992, de la Bastide

C.J. (as he then was) at page 5 of 11 stated the following in relation to

aggravated damages:

“The normal practice is that one figure is awarded as general damages.

These damages are intended to be compensatory and include what is

referred to as aggravated damages, that is, damages which are meant to

provide compensation for the mental suffering inflicted on the plaintiff as

opposed to the physical injuries he may have received. Under this head of

what I have called ‘mental suffering’ are included such matters as the

affront to the person’s dignity, the humiliation he has suffered, the

damage to his reputation and standing in the eyes of others and matters

of that sort. If the practice has developed of making a separate award of

aggravated damages I think that practice should be discontinued.”

71. Chief Justice de la Bastide then went on to explain mental suffering in this way:

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“Under this head of what I have called ‘mental suffering’ are included such

matters as the affront to the person’s dignity, the humiliation that he has

suffered, the damage to his reputation and standing in the eyes of others,

and matters of that sort.”

72. The Board of the Judicial Committee in a malicious prosecution claim

examined damage to reputation in the recent case of Terrence Calix v. The

Attorney General [2013] UKPC 15. The claimant therein was a street dweller

who lived in a shed, and was charged with the assault and rape of two persons.

The Board stated at paragraph 10 of the judgment that “…compensation

should be adjusted to take account of the anguish that the reputational

damage occasions.”

73. At paragraph 16 of the Board cited with approval the following passage from

the authors of Clayton and Tomlinson on Civil Actions Against the Police, 3rd

ed. (2004) 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 dishonesty or sexual misconduct will cause more damage than

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

should be place on this ‘reputation damage’. The award should be

increased if the prosecution received wide publicity.”

And

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

character then the ‘loss of reputation’ 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.”

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74. In making any award for damages these types of cases, the Court is guided by

the words of De La Bastide CJ in Josephine Millet v Sherman Mc Nicholls Civ.

App 14 of 2000 where it was stated, “It is important that judges approach the

assessment of damages in cases like this in the round. I do not think that one

can divide the award strictly into different compartments, one for initial shock,

the other for length of imprisonment and so on. All the factors have to be taken

into account and an appropriate figure arrived at”.

75. The Claimants in their claim pleaded the following Particulars of Aggravated

Damages as follows:

a. The Claimants’ name, picture and charge were published in the daily

newspapers,

b. The charges alleged that the Claimants were gang members,

c. The Claimants were associating for illegal purposes,

d. The Claimants were involved in criminal activities that undermined the

State of the Republic of Trinidad and Tobago.

76. The Claimants were arrested within the period 26th August 2011 and 29th

August 2011 and detained until the 1st November 2011. They each testified

about the poor conditions during their incarceration but this formed no part

of their pleaded case. After being taken to the Magistrates’ Court they

remained incarcerated until the 1st November. These Claimants did not

engender in the Court a feeling that they were upstanding citizens and two of

them had prior matters before the courts. They were however unjustifiably

deprived of their liberty for sixty-seven (67) days.

77. The Court is mindful of the fact that the Claimants’ names, pictures and

charges were published on the daily newspapers but that circumstance was

not properly addressed in the pleadings. The Court noted that they belonged

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to a small village in Toco, however, the Court formed the view that the

Claimants’ reputation was not injured by these allegations. The Court has

noted that the First Claimant and the Fifth Claimant has had previous

convictions/pending cases before the court. They are as follows:

First Claimant: Offence: Serious indecency Robbery with violence Shooting with intent Obstructing a police officer

Fifth Claimant: Offence: Possession of marijuana Wounding with intent Possession of ammunition Obstructing a police officer

78. In this regard, the directions given by the Board in the Privy Council decision

Terrence Calix (supra) must be considered. Bearing that in mind and the fact

that the First and Fifth Claimants had previous clashes with the law, this will

have an impact on any ‘loss of reputation’ award which the Court has a

discretion to grant.

79. In Yasin Abu Bakr v The Attorney General of Trinidad and Tobago and The

Commissioner of Police Claim No. 00182-2010 at paragraph 59 this Court

refused to make such an award to the Claimant, the person who orchestrated

the 1990 coup d état, because it was of the view that the Claimant’s reputation

was not injured by the instant charges which related illegal firearm possession.

Similarly, in Blades et. al v The Attorney General of Trinidad and Tobago CV

2015-00198 Rahim J, in making an award for damages in a malicious

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prosecution case, noted at paragraph 83 that one of the claimants, who had

nine previous convictions, could hardly be seen to suffer any great injury to his

character and reputation.

80. As such, the First and Fifth Claimant would have suffered minimal damage to

reputation and fame based on their criminal history. The Court noted that the

Second Claimant has no previous convictions so he would reasonably suffer

some injury to reputation and fame though no evidence was adduced to

demonstrate same.

Aggravating factors:

81. The following are aggravating factors:

a. The Claimants were incarcerated for sixty-seven (67) days;

b. The Claimants’ suffering came as a result of unreliable and fabricated

surveillance evidence of Corporal Bernard.

82. In arriving at a figure for general damages, the Court took the following cases

into consideration:

a. Onnell Dyer v The Attorney General CV 2015-03207 - the claimant

who was detained for a period of 34 days (after being charged with the

offence of being a member of a gang) was awarded $40,000.00 in

general damages for malicious prosecution. The average daily rate was

$1,176.00.

b. Glen Baptiste v The Attorney General No. 1842 of 1997 - wherein the

claimant there was detained for 42 days and awarded the sum of

$45,000.00 for general and aggravated damages. The daily rate was

$1,071.00.

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c. Chabinath Persad v PC Jaimungal #11124 and The Attorney General

CV 2008-04811 – wherein the claimant was detained for 76 days and

general damages (including aggravated damages) were awarded in the

sum of $110,000. The average daily rate was $1447.00.

d. Ted Alexis v The Attorney General and PC Merez #11298 HS S-1555 of

2002/ HC 3795A of 2002 – wherein the claimant was detained for 2 ½

months and awarded general damages (including aggravated

damages) in the sum of $100,000. The average daily rate was

$1,333.00.

e. Curtis Gabriel v The Attorney General HC S-1452 of 2003/ HC 2544 of

2003 – wherein the claimant was detained for 84 days and awarded

general damages (including aggravated damages) in the sum of

$125,000. The average daily rate was $1,488.00.

83. In Dyer v The Attorney General (supra), a case which is similar to the instant

matter, the Claimant was detained during the 2011 state of emergency and

detained for 34 days after which the charges were dismissed for lack of

evidence. Before the Court in that case was a claim for malicious prosecution

and Kokaram J found, at paragraph 41, that the main damage suffered by the

claimant was the loss of liberty without justification.

84. The Court in that case noted that it was not one fitting for either aggravated

or exemplary damages as there was nothing in either the Claimant’s or

Defendant’s evidence to justify an uplift of the award for aggravating

circumstances. As in the instant case, there were no other witnesses to

support the Claimant’s claim for damages. Kokaram J, at paragraph 42, noted,

“The fact that there is a finding of malice does not automatically entitle the

Claimant to an award of either aggravated or exemplary damages”.

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85. In light of the authorities highlighted this Court is of the view, that given the

length of time which the Claimants were detained (67 days) that the First and

Fifth Claimants are entitled to damages inclusive of an uplift for the

aggravating factors in the sum of $87,000. The Court formed the view that

given that the Second Claimant did not have any previous convictions, he

would have likely suffered injury to fame and reputation and his award of

damages inclusive of an uplift, ought to be a bit higher, in the sum of $105,000.

Special Damages:

86. It is well established that the burden of proof regarding special damages is on

the claimant, who is required to prove the special damages that he pleads.

Documentary evidence is usually required for such claims to be allowed.

Archie, J.A. (as he then was) in the case of Anand Rampersad v Willies Ice-

Cream Ltd Civil Appeal 20 of 2002 stated as follows:

“The rule is that the plaintiff must prove his loss. The correct approach is

as stated by Lord Goddard C.J in Bonham Carter v Hyde Park Hotel [1948]

64 Law Times 177:

“Plaintiffs must understand that if they bring actions for damages, it is for

them to prove their damage, it is not enough to write down the particulars,

so to speak, throw them at the head of the court saying ‘this is what I have

lost, I ask you to give me these damages.’ They have to prove it’.”

87. Although the Claimants pleaded special damages they adduced no evidence in

support. As such no award is made under this heading.

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Exemplary damages:

88. Exemplary damages may be awarded where there is the presence of

outrageous conduct disclosing malice, fraud, insolence and cruelty. In Rookes

v Barnard [1964] AC 1129, Lord Devlin stated that exemplary damages are

different from ordinary damages and will usually be applied in the following

categories:

a. where there is oppressive, arbitrary or unconstitutional conduct by

servants of government;

b. where the defendant’s conduct had been calculated to make a profit;

and

c. where it was statutorily authorised.

89. This Court notes the surrounding circumstances around which the detention

of the Claimants took place. A state of emergency was declared by the

Government of Trinidad and Tobago to deal with escalating crime in certain

parts of the country. By Legal Notice 162 of 2011 the President was satisfied

that “action has been taken or is immediately threatened by persons or bodies

of persons of such a nature and on so extensive a scale as to be likely to

endanger the public safety”.

90. In commenting on the state of emergency in 2011, Kokaram J in Anthon Boney

v The Attorney General Claim No. CV2015-04084 stated at paragraph 9 the

following:

“…The community and thus nation thrives under its own system of

governance, laws, morals and values. When threatened it deserves

protection. But in doing so it must not be at the expense of the very

freedoms and liberties which are the marrow of our own values. The

passage of draconian legislation such as EPR (Emergency Powers

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Regulations 2011) legislation, or counter-terrorist measures, are indeed

democratic acts to protect community rights, the right to human security

and collective peace. These are political decisions with human rights

dimensions…”

91. In light of the state of affairs which gripped the Republic in 2011 it was not

uncommon for police officers to arrest without warrant individuals who they

reasonably suspected to be members of gangs or who committed an offence

under the Anti-Gang Act: Section 12(1) of the Anti-Gang Act. In fact, they were

given the authority to do so. This Court will however not condone such acts by

police officers where their motives were not for enforcing the criminal law or

a desire to secure the ends of justice.

92. The frequency with which this State and by extension taxpayers, are burdened

with liability for the errant actions of police officers, is outrageous. The Courts

have consistently imposed orders for exemplary damages so as to deter future

breaches of authority however the said orders have proved futile. So long as

awards of damages bear no impact upon the pockets of the offending officers,

breaches of authority will continue unabated. Awards for exemplary damages

neither punish nor deter the actual offender and surely do not teach the errant

police officers or other servants of the State who acted arbitrarily or

unconstitutionally that the commission of a tort does not pay. Persons should

be held to account, their jobs should be placed on the line and their pockets

should bear the financial burden imposed by virtue of their unacceptable

conduct. A no tolerance approach to lawlessness in all its manifestations must

be mandatory. Many officers accused of serious crimes which are pending

before the courts are placed on suspension and they continue to receive

remuneration. The payment of base salary or part thereof when officers are

on suspension should also be immediately reviewed. This Republic cannot

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afford to have police officers with pending charges being placed, effectively,

on a paid vacation.

93. In the circumstances this Court is not convinced that the instant case is one

where an award for exemplary damages will be useful.

Conclusion:

94. For the reasons which have been outlined the Third and Fourth Claimants’

claim is dismissed with no order as to costs and there shall be judgement in

favour of the First, Second and Fifth Claimants against the Defendant. The First

and Fifth Claimant are awarded damages in the sum of $87,000 and the

Second Claimant is awarded damages in the sum of $105,000. The Defendant

is ordered to pay the Claimants costs on a prescribed costs basis. The Registrar

is also directed to forward a copy of this decision to the Commissioner of

Police.

___________________

Frank Seepersad

Judge

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