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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. C.V. 2008-00126

BETWEEN

JOHN MOHAMMED

Claimant

AND

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Defendant

Before The Honourable Mr. Justice des Vignes

Appearances: Mr. R. Ramsaran for the Claimant Instructed by Mr. Kent Samlal Mr. Christopher Sieuchand Instructed by Ms. Sharma for the Defendant

J U D G M E N T

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The Proceedings

1. On the 21st November 2001, the Claimant commenced these

proceedings against the Defendants by the filing of a Writ of

Summons and Statement of Claim claiming, inter alia, damages

(including aggravated and exemplary damages) for malicious

prosecution and violation of his constitutional rights

2. The Claimant filed an Amended Statement of Claim on 19th

December 2001. On 12th April 2002, a Defence was filed on behalf

of the Defendant. The Writ of Summons filed on 21st November

2001, and the Amended Statement of Claim filed on 19th

December 2001, were not served on P.C. Eastman until 1st March

2004, and the Claim against him was subsequently dismissed. By

Order dated 24th March 2005, the Claimant was granted leave to

amend his Writ and Statement of Claim to remove PC Eastman as

the second-named Defendant. An Amended Writ of Summons and

a Re-amended Statement of Claim were both filed on the 14th

February 2006. By notice dated the 15th January 2008, the matter

was transferred to the Civil Proceedings Rules 1998.

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The Claim

3. By his Re-Amended Statement of Claim, the Claimant alleged that

on or about June 1995, Police Constable Eastman maliciously and

without reasonable and probable cause charged him with breaking

and entering the house of Amzad Ali and stealing from same on the

7th June 1995. The particulars of malice relied upon by the

Claimant were as follows:

(a) PC Eastman fabricated the charge against him

knowing fully well that he was at work at the

material time.

(b) PC Eastman knew or ought to have known that he

had no or no reliable or cogent evidence against

him that could justify the charge against him.

(c) PC Eastman failed and/or refused and/or omitted

to conduct proper investigations into the matter

before he decided to proceed with the charges

against him.

(d) In the alternative, PC Eastman recklessly and/or

willfully disregarded his innocence by reason of

his failure and/or refusal to conduct inquiries

into the Claimant’s statement that, at the material

time, he was at work as a watchman attached to

the Unemployment Relief Programme (URP).

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(e) PC Eastman was reckless in the discharge of his

duties as a police officer as it related to the arrest

and prosecution of the Claimant.

4. The Claimant alleged that as a result of the said charge laid

against him by PC Eastman, he was required to attend the Sangre

Grande Magistrate’s Court on a number of occasions between June

1995 and November 2000, when he was found not guilty by the

presiding Magistrate and the matter was dismissed. He claimed

that as a consequence of the charge laid against him he was

deprived of his liberty and that he suffered great anxiety and

distress. In addition, the Claimant claimed that he incurred

expenses in conducting his defence and that he suffered loss and

damage. The following special damages were pleaded:

(a) Cost of legal representation

in the Magistrate’s Court - $5,000

(b) Cost of travelling to Sangre Grande

Magistrate’s Court - $ 500

(c) Cost of food - $ 200

5. The Claimant also alleged that during his arrest and/or detention

he was not cautioned or informed of his right to communicate with

an Attorney at Law, friend or relative and that as a result, his

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fundamental rights as guaranteed by section 54 (b) of the

Constitution have been breached.

6. The Claimant claimed that the actions of PC Eastman, as agent

and/or servant of the State were oppressive, arbitrary and/or

unconstitutional and, on that basis, he claimed that he is entitled

to an award for aggravated and/or exemplary damages.

The Defence

7. Besides admitting that PC Eastman was employed with the Police

Service of Trinidad and Tobago and that at the material time he

was acting in the purported performance of his duties and

functions as a Police Officer, the Defendant denied all of the above-

mentioned allegations.

Summary of the evidence

8. The Claimant gave evidence on his own behalf and PC Eastman

gave evidence on behalf of the Defendant

The Claimant’s evidence

Evidence-in-chief

9. In his Witness Statement filed on 12th February 2008, (which was

admitted into evidence as his examination-in-chief), the Claimant

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said that he was a Watchman in the Unemployment Relief

Programme (URP). On 7th June 1995, he went to the Cumuto Police

Station to report a larceny which he claimed had taken place at the

estate where he worked as a watch man. When he entered the

Police Station and, as he was about to make a report, PC Eastman

said to him, “You is John Mohammed? You break into the man

house that day and thief all he things! Ah have something for yuh,

yuh under arrest”. The Claimant said that PC Eastman grabbed

him and pulled him to the holding cell and placed him inside the

cell. According to the Claimant, PC Eastman ignored him when he

explained that he had come to the Police Station to report a larceny

that had taken place on the property that he worked and that he

did not know of the incident that he was talking about because he

was at work all day. He said he told PC Eastman that he could

check with URP records as well as the person he relieved from duty

or the person who relieved him from duty to verify the truthfulness

of his statement.

10. The Claimant said that he was arrested and detained for five (5)

days, that is, from the 7th June 1995 to 12th June 1995, when he

was brought before a Magistrate sitting in the Arima Magistrate’s

Court. He pleaded not guilty to the charge and was admitted to

bail. The Claimant said that he spent over 2 ½ months in jail

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before he was able raise bail. The matter was called approximately

eleven (11) times before it was heard and determined in his favour

on 27th November 2000, in the Sangre Grande Magistrate’s Court.

11. The Claimant also said that he was never cautioned by PC

Eastman nor was he told of the reason for his arrest. In addition,

he said that he was never informed of his right to an Attorney at

Law.

Cross-examination

12. Under cross-examination the Claimant insisted that he attended

Court on each occasion that the matter was called. He denied that

Attorney-at-Law, Mr. Nath, ever appeared on his behalf in the

Magistrate’s Court. He denied that on at least one occasion when

the matter was called he did not appear because he was serving a

term of imprisonment and contended that the notes of proceedings

from the Magistrate’s Court that showed that he did not appear on

every occasion that the matter was called was incorrect.

13. Further, the Claimant also denied that he was brought to the

Cumuto Police Station by Police Officers who had arrested him in

relation to another offence. He explained that he saw PC Eastman

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when he went to the Police Station to report a larceny that

occurred at the property where he was employed as a watchman.

The Defendant’s evidence

Evidence-in-Chief

14. The Defendant relied on the evidence of Acting Corporal Victor

Eastman. In his Witness Statement, (which was also admitted into

evidence as his evidence-in-chief), PC Eastman said that he has

been a Police Officer for approximately twenty-five (25) years.

15. On 7th June 1995, while he was on duty at the Cumuto Police

Station, one Mr. Amzard Ali and one Mr. Sayad Ali, whom he did

not know prior to that day, came to the Police Station to make a

report. The men reported that they saw the Claimant running from

Mr. Amzard Ali’s house and that he was carrying some items. They

further reported that upon inspection they realized that the front

door of the house was broken and several items were missing.

16. PC Eastman said that he took written statements from both

Mr. Amzard Ali and Mr. Sayad Ali and copies of these statements

were annexed to his witness statement. Later that same day, he

visited the premises of Mr. Amzard Ali. He could not recall what he

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saw at the premises. However, he recalls that he concluded that

the house was broken into.

17. On 10th June 1995, Mr. Amzard Ali made another report

concerning the Claimant. Mr. Ali reported that his house had

burnt down and he also gave information of certain incidents that

occurred between himself and the Claimant. PC Eastman was on

duty at the time but the report was not made to him and he could

not recall the Officer to whom the report was made. However, at

the request of another Police Officer, PC Eastman said he took a

statement from Mr. Ali but this statement was not signed by

Mr. Ali.

18. On 10th July 1995, PC Eastman was on duty at the Cumuto Police

Station when the Claimant was brought in by several Police

Officers in relation to another matter. PC Eastman said that he

informed the Claimant of the reports made against him by Amzard

and Sayad Ali - in particular, the allegation that he had broken

into their home and stolen certain items. He said the Claimant

denied the allegations but he could not recall whether the

Claimant told him anything else. In light of the reports made by

Amzard and Sayad Ali which incriminated the Claimant and his

first-hand observation of the scene of the alleged crime,

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PC Eastman said he concluded that the Claimant had committed

the offence as defined in S. 28(a) of the Larceny Act. He therefore

formally charged the Claimant for the said offence and served him

with a Notice to Prisoner numbered 10853 and dated 10th July

1995. He said he did not arrest the Claimant as he was already in

police custody in relation to another matter. He said that at the

time of charging the Claimant he would have informed him of his

rights and privileges. PC Eastman said that he did not dislike the

Claimant nor did he have any ill-will, spite or malice against the

Claimant.

19. PC Eastman said that on 12th July 1995, he laid an Information

No. 3871 of 1995, at the Arima Magistrate’s Court, in respect of

the charge he proffered against the Claimant. The Claimant was

granted bail by the Magistrate. The matter was called several times

in the Arima Magistrate’s Court until it was transferred to the

Sangre Grande Magistrate’s Court in or about September 1995.

The matter was called several times in the Sangre Grande

Magistrate’s Court until it was set down for trial on 27th November

2000. Mr. Amzard and Sayad Ali were cited to appear on behalf of

the Prosecution. However, they failed to appear on the date that

the matter was set for trial and the matter was dismissed by Senior

Magistrate Jai Narine. PC Eastman said that on the several

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occasions that the matter was called in the Magistrate’s Court both

he and the Claimant were in attendance.

Cross-Examination

20. Under cross-examination, PC Eastman said that based on the

report he received from Amzard and Fayad Ali and certain

observations made by him when he visited the premises where the

alleged break-in and larceny took place, he assumed that the

Claimant was responsible for the alleged crime. He said that he

considered the break-in and larceny to be a serious offence.

However, he did not go to arrest the Claimant on 7th June 1995,

when the report was made against him, nor did he attempt to

arrest the Claimant on the 8th or 9th of June, 1995. PC Eastman

admitted that he did not cause a warrant to be issued for the

Claimant after the report was made against the Claimant. He also

admitted that he did not attempt to execute a search warrant at

the Claimant’s premises to recover the items that were allegedly

stolen. When asked about the investigations that he made

concerning the report, PC Eastman said that “enquiries were made

by other officers” and that several attempts were made by him to

locate the Claimant.

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21. Further, PC Eastman said that it was not clear to him from the

report made by Amzard and Fayad Ali on 7th June 1995, what the

Claimant’s address was. However, he admitted that when Mr. Ali

made the second report on 10th June 1995, he became aware that

the Claimant lived 120 feet from Mr. Ali’s house. He further

admitted that even after 10th June 1995, no arrest or search

warrants were issued for the Claimant and that the Claimant was

not arrested until 10th July 1995. He said that he made several

inquiries regarding the Claimant but that these were not specified

in his Witness Statement, although he considered that they were

important steps in his investigation.

22. PC Eastman also said that when the Claimant was brought to the

Police Station on 10th July 1995, that was the first time he was

seeing the Claimant. He interviewed the Claimant but he did not

take a statement from him. He admitted that the Claimant denied

committing the alleged crime but said that he did not recall

whether the Claimant said that he was working at URP at the time

of the alleged break-in and larceny. When asked by Counsel

whether he saw any evidence, when he visited Mr. Ali’s house, that

the Claimant had committed the crime, his response was, “Based

on virtual complainant’s statement along with the evidence of

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visiting the crime scene I was able to conclude that John Mohammed

committed the crime.”

23. PC Eastman denied having any knowledge of the Claimant visiting

the Police Station on 10th July 1995 to make a report of a robbery

and arson at his workplace. He insisted that the Claimant was

brought in to the station in relation to other offences but admitted

that there was no evidence attached to his Witness Statement that

the Claimant was arrested on 10th July 1995 for any other offence.

He said that he did not know what offence the Claimant was

arrested for on 10th July 1995. PC Eastman denied arresting the

Claimant and denied placing him in a cell.

The Law

Malicious prosecution

24. In order to succeed in a claim for damages for malicious

prosecution, the Claimant has the onus of proving all of the

following:

(a) the prosecution by the defendant of a criminal

charge against the claimant before a tribunal into

whose proceedings the criminal courts are

competent to inquire;

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(b) that the proceedings complained of terminated in

the claimant’s favour;

(c) that the defendant instituted or carried on the

proceedings maliciously;

(d) that there was an absence of reasonable and

probable cause for the proceedings; and

(e) that the claimant suffered damage.1

25. It is not in dispute that PC Eastman initiated criminal proceedings

against the Claimant on the charge of housebreaking and larceny

and that the said proceedings were determined in the Claimant’s

favour in 2000. Therefore, the issues to be determined by this

Court are as follows:

(i) whether PC Eastman acted without reasonable and

probable cause when he laid the said charges against the

Claimant;

(ii) whether there was malice on the part of PC Eastman

when he laid the said charges; and

(iii) whether the Claimant suffered damage.

1 Halsbury’s Laws of England, Vol. 45(2), para. 467

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Reasonable and probable cause

26. The classic definition of “reasonable and probable cause” was

given by Hawkins J. in Hicks v Faulkner2 and approved by the

House of Lords in Herniman v Smith3. The phrase was defined as

follows:

“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 ordinary, prudent and cautious

man, placed in the position of the accused to the conclusion

that the person charged was probably guilty of the crime

imputed.”

27. Lord Devlin4 put it this way:

“…what is meant by reasonable and probable cause? It

means that there must be cause…for thinking that the

plaintiff was probably guilty of the crime imputed: Hicks v

Faulkner5. This does not mean that the prosecutor has to

believe in the probability of conviction: Dawson v

Vandasseau6. The Prosecutor has not got to test the full

2 (1881) 8 QBD 167 at 171

3 (1938) 1 All ER 1, per Lord Atkin at p. 8

4 Glinski v McIver [1962] 2 WLR 832 per Lord Devlin at p. 857

5 8 Q.B.D. 167 at p. 173

6 (1863) 11 W.R. 516 at p. 518

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strength of the defence; he is concerned only with the question

of whether there is a case fit to be tried. “

28. The question as to 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 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 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

prosecution.

29. A person is not bound before instituting proceedings to see that

he has such evidence as will be legally sufficient to secure a

conviction. There may be reasonable and probable cause for

preferring a criminal charge even though the prosecutor has before

him prima facie evidence. Viscount Simonds said in Glinski v

McIver7:

“…. A question is sometimes raised whether the prosecutor

has acted with too great haste or zeal and failed to

7 [1962] 2 WLR 832 at p. 839

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ascertain by inquiries that he might have made facts that

would have altered his opinion upon the guilt of the accused.

Upon this matter it is not possible to generalise, but I would

accept as a guiding principle what Lord Atkin said in

Herniman v Smith8, that it is the duty of a prosecutor to find

out not whether there is a possible defence but whether there

is a reasonable and probable cause for prosecution. Nor can

the risk be ignored that in the case of more complicated

crimes, and particularly perhaps of conspiracies, inquiries

may put one or more of the criminals on alert.”

30. It is sufficient for the person who initiates criminal proceedings to

do so on such information as a prudent and cautious person may

reasonably accept in the ordinary affairs of life. 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: Lister

v Perryman9.

8 [1938] A.C. 305

9 (1870) LR 4 HL 521

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31. What of those situations where the prosecutor may have

knowledge of evidence that furnishes an answer to the charge?

Clerk and Lindsell on Torts10 had this to say:

“It may sometimes be contended that a prosecution is

unreasonable, not on the ground that the prosecutor had no

substantial information before him pointing to the guilt of the

claimant, but because he was also aware of countervailing

evidence which afforded a good answer to the charge. A

prosecutor has no right to pick and choose among the

evidence before him, and act only upon such portions of it as

show that he has good cause for proceeding; nor is he bound

to assume that the theory put forward for the defence is

sound. In Herniman v Smith, Lord Atkin said:

“No doubt circumstances may exist in which it is right

before charging a man with misconduct to ask him for

an explanation. But certainly there can be no general

rule laid down, and where a man is satisfied, or has

apparently sufficient evidence, that in fact he has

cheated, there is no obligation to call on the cheat and

ask for an explanation which may only have the effect

of causing material evidence to disappear or be

manufactured. It is not required of any prosecutor that

10

Clerk & Lindsell Torts, nineteenth ed. p. 986, para 16-28

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he must have tested every possible relevant fact before

he takes action. His duty is not to ascertain whether

there is a defence but whether there is reasonable and

probable cause for a prosecution.”

32. Where the prosecution has nothing before him but mere suspicion

then it would not be justifiable to commence a prosecution and a

case for lack of reasonable and probable cause may be made out.

This was the case in Baptiste v The Attorney General of

Trinidad and Tobago & Seepersad11. In this case the virtual

complainant went to the Police Station and made a report of an

incident between herself and the Plaintiff. The allegations included

possession and discharge of a firearm as well as possession of

ammunition. The Plaintiff voluntarily went to the Police Station,

where he was arrested. A search was conducted of the plaintiff’s

home and vehicle but no firearm, ammunition or indentation

caused by a firearm was discovered. The charges were

subsequently laid by the Defendant, Constable Seepersad, solely

on the interview with the virtual complainant and without hearing

anything of what the plaintiff had to say of the alleged incident or

without speaking to anyone else. In this case there were no eye

witnesses who could be interviewed. Constable Seepersad had no

11

H.C. 36 of 2001

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prior knowledge or acquaintanceship with the plaintiff or the

virtual complainant.

33. Justice Stollmeyer (as he then was) in finding that the defendants

had not met the test of reasonable and probable cause, made the

following observation:

“The police of course, were not required to be satisfied that

there was enough evidence to secure a conviction (see

Glinsky v McIver [1962] AC 726) but a prosecution cannot be

commenced on mere suspicion see Meering v Grahame

White Aviation Co. [1919] 122 LT 44. Police Officers should

make all presently practicable enquiries from persons

immediately accessible. They should act on the assumption

that their prima facie suspicion may be ill-founded see

Dumbell v Roberts [1944] 1 AER 326 at 329, which was

cited with approval in Irish v Barry.

The police are therefore only required to be satisfied that the

evidence available at the time is enough to commence a

prosecution in respect of which there is reasonable and

probable cause. In those circumstances, it might be said that

the say so of Elizabeth Fontanelle was enough and that the

Plaintiff’s denial remained to be tested under cross-

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examination. As, indeed, would be the evidence of Elizabeth

Fontanelle

In my view, the scales are finely balanced, but if necessary

they are tipped in favour of the Plaintiff by the Second

Defendant’s evidence, that is Constable Seepersad in cross-

examination. When he was asked if he had formed any

opinion as to the guilt of the Plaintiff as a result of his

investigations he responded “…having looked at the evidence

before me I was a bit confused. As a result I forward my

views and the statements to my superior for guidance”. That

his views were verbal and not in the written report as I have

said makes no difference…. What is relevant, what is

material, is that Constable Seepersad could not have been

certain that there was enough evidence at that time to proceed

with charging Mr. Baptiste. He did not have the necessary

honest belief that there was reasonable and proper cause to

prosecute. ”12

Malice

34. A claimant who alleges malicious prosecution has the burden of

proving not only that the prosecutor lacked reasonable and

12

H.C.A. Cv. 3617 of 2001 at p. 8 of 12

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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 has 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.

35. 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 hasty, both in his

conclusion that the plaintiff was guilty and in his proceedings;

but hastiness in his conclusion as to the plaintiff’s guilty,

although it may account for his coming to a wrong conclusion,

does not shew that presence of an indirect motive…”

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36. However, where a Claimant fails to prove a lack of reasonable and

probable cause on the part of the prosecutor, the question of

malice does not arise for the consideration of the Court. In

Randolph Burroughs v. AG13, Justice Ibrahim expressly held that

since the Plaintiff had failed to discharge the onus of proving that

the prosecution was undertaken against him without reasonable

and probable cause, it had become unnecessary to consider the

question of malice. In Cecil Kennedy v. Morris & AG14, the Court

of Appeal endorsed this approach when they found that although

the trial judge had painstakingly examined the requirements and

authorities for proving malice, the question of malice did not arise

since there was sufficient evidence that the appellant had been

arrested for reasonable and probable cause.

Constitutional Redress

37. The Claimant has also claimed damages for the violation of his

constitutional rights. He alleged that the actions of PC Eastman, as

agent and/or servant of the State, were oppressive, arbitrary

and/or unconstitutional and therefore he was claimed to be

entitled to aggravated and/or exemplary damages. In so far as he

alleged breaches of his constitutional rights, the Claimant alleged

in the Re-Amended Statement of Claim that “at no time during his

13

HC 4702/1986; HC 2418/1987 14

Civ. Appeal 87/2004

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arrest and/or detention or about June 1995 was he cautioned

and/or informed of his right to communicate with an Attorney-at-

Law, friend or relative in contravention of his fundamental rights as

guaranteed by section 54 (b) of the Constitution.”

38. Section 54 of the Constitution does not confer any such rights as

alleged by the Claimant and, in fact, sets out the limits imposed on

Parliament with regard to the alteration of the Constitution.

Notwithstanding the fact that the Claimant did not apply to re-

amend the Statement of Claim to correct this obvious error, I am

prepared to treat this allegation as a reference to section 5 (2)(c) of

the Constitution, as indicated by the Claimant in paragraphs 10

and 11 of his witness statement.

39. As at the date of the commencement of these proceedings in 2001,

the practice and procedure for bringing a claim for constitutional

redress was governed by the Rule of the Supreme Court 1975.

Order 55 of those rules mandated that applications for

constitutional relief must be made by way of originating motion

and not by Writ of Summons. Under the Civil Proceedings Rules

1998, a claim for constitutional relief should be made by the filing

of a fixed date claim. Having regard to the transfer of this matter to

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the docket management system under the Civil Proceedings Rules,

the new rules now apply to this matter.

40. The Courts have repeatedly made it clear that the right to apply to

the High Court for redress under section 14 of the Constitution

should be only exercised in exceptional circumstances where there

is a parallel remedy available to a complainant. In Thakur Persad

Jaroo v. The AG15, the Privy Council reiterated this warning and

stated as follows:

“39. Their Lordships respectfully agree with the Court of

Appeal that, before he resorts to this procedure, the applicant

must consider the true nature of the right allegedly

contravened. He must also consider whether, having regard to

all the circumstances of the case, some other procedure either

under the common law or pursuant to statute might not

more conveniently be invoked. If another such procedure is

available, resort to the procedure by way of originating

motion will be inappropriate and it will be an abuse of

process to resort to it. If, as in this case, it becomes clear

after the motion has been filed that the use of the procedure

is no longer appropriate, steps should be taken without

delay to withdraw the motion from the High Court as its

continued use in such circumstances will also be an abuse.”

15

[2002] 1 AC 871 at 886.

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Analysis of the evidence

The date of arrest and charge

41. There is a major discrepancy in the Claimant’s case with regard to

date on which he was allegedly arrested and charged by PC

Eastman. According to his Re-Amended Statement of Claim, at

paragraph 4, “Police Constable Eastman on or about the June 1995

maliciously and without reasonable and probable cause charged the

Plaintiff….”. However, in his witness statement, the Claimant

specifically stated at paragraph 2 that “On or about Wednesday the

7th day of June 1995 Police Constable……(Victor) Eastman #11862

of Cumuto Police Station maliciously and without reasonable cause

charged me…..”.

42. This evidence is contradicted by the evidence of Mr. Eastman who

indicated that the Claimant came into the station on the 10th July

1995, and that he charged him on that date. This is confirmed by

the Notice to Prisoner annexed to his witness statement as well as

the Notes of Proceedings from the Magistrate’s Court, which shows

that the information was laid against the Claimant by PC Eastman

on the 12th July 1995.

43. In the course of cross-examining PC Eastman, Counsel for the

Claimant repeatedly questioned him about the Claimant coming

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into the police station on the 10th July 1995, and being arrested on

that day and he did not at any time suggest to him that he charged

or arrested the Claimant on the 7th June 1995. Further, he did not

apply at any time to re-amend the Statement of Claim.

44. So, the Court is left with the Claimant’s sworn testimony that he

was arrested on the 7th June 1995, and detained from that date to

the 12th June 1995, when he was granted bail and the evidence of

the Defendant’s witness that the report of the break-in was made

by the Ali’s on the 7th June 1995, but he did not charge the

Claimant until the 10th July 1995.

45. Having regard to the documentary evidence produced by PC

Eastman as to the date of the charge as well as the Notes of

proceedings and notes of evidence which was produced by the

Claimant in his Bundle of documents, I find that the Claimant was

not arrested or charged or detained on the 7th June 1995, as

alleged and I accept the Defendant’s evidence that the Claimant

was charged on 10th July 1995. I also find that the Claimant’s

evidence that he was incarcerated for 5 days, from the 7th June

1995, to 12th June 1995, cannot be true.

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Want of reasonable and probable cause

46. PC Eastman said he laid the charge against the Claimant based

on the signed statements made by Amzard and Sayad Ali on the

7th June 1995, which have been produced to the Court and were

not challenged. Further, he said he visited the premises of

Mr. Amzard Ali on the same day and based on his observations, he

came to the conclusion that the house had been broken into. This

evidence was also not challenged by the Claimant. He also gave

evidence of a further report to the police station by Mr. Amzard Ali

on the 10th June 1995, that his house had been burnt down. He

produced an unsigned statement from Mr. Ali. Counsel for the

Claimant did not challenge this evidence and in fact relied on this

document to demonstrate that PC Eastman knew since the

10th June 1995, that the Claimant lived 120 feet from Mr. Ali’s

house and yet he had not made any efforts to execute a search

warrant or to arrest the Claimant between the dates of that report

and the 10th July 1995. Although under cross-examination, PC

Eastman stated that investigations into the report of larceny had

been conducted by him and by other officers, I am not satisfied

that between the 7th June 1995, and the 10th July 1995,

PC Eastman made any efforts to locate the Claimant or that efforts

were made by other officers to locate the Claimant. There is no

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mention of any such efforts in his witness statement and his

responses to Counsel for the Claimant were not persuasive.

47. So the question is whether the Claimant has proved that on the

10th July 1995, there was an absence of reasonable and probable

cause when PC Eastman charged the Claimant. I am required to

determine whether PC Eastman had “an honest belief in the guilt of

the accused based on a full conviction found 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 accuse, to

the conclusion that the person charged was probably guilty of the

crime imputed.” In considering this issue, I remind myself that PC

Eastman needed to concern himself only with the question whether

there was a case fit to be tried and was not bound before

instituting this charge to see if the evidence was legally sufficient

to secure a conviction. Further, his duty was not to ascertain

whether the Claimant had a defence to the charge but whether

there was reasonable and probable cause for the prosecution.

48. In my opinion, although PC Eastman may be criticized for his

failure to conduct investigations into the report of Mr. Amzard Ali

and Mr. Sayad Ali or to execute a search warrant at the Claimant’s

Page 30 of 36

home, I am of the opinion that a reasonable man having knowledge

of the reports of the Ali’s would have believed that the Claimant

was guilty of the breaking and entering and stealing the items

listed in the report and in the charge. PC Eastman had in his

possession two signed statements from Amzard Ali and Sayad Ali

in which they positively identified the Claimant, a person they

knew, as the perpetrator of the crime and he had visited the

premises on the same day to confirm the veracity of the report. I

am satisfied, therefore, that on the 12th July 1995, when he laid

the information against the Claimant, he honestly believed that the

Claimant was guilty of the offence with which he charged him.

49. Accordingly, I am of the opinion that the Claimant has failed to

prove the absence of reasonable and probable cause on the part of

PC Eastman in laying the charge against the Claimant.

Malice

50. Having regard to my finding that the Claimant has failed to prove

a lack of reasonable and probable cause on the part of PC

Eastman, in accordance with the guidance provided by the Court

of Appeal in Kennedy v. Morris & AG16, I need not consider the

question of malice.

16

Civ. Appeal 87/2004

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51. However, even if I am wrong in finding that PC Eastman had

reasonable and probable cause, I am not satisfied that the

Claimant has proved that PC Eastman was actuated by spite, ill-

will or by indirect or improper motives. I have considered the

particulars of malice pleaded by the Claimant and I make the

following findings in relation thereto:

(a) PC Eastman did not fabricate the charge of

breaking and entering and larceny. A report was

made to the police station and written statements

were given by Amzard and Sayad Ali. Further,

PC Eastman was not under a duty to ascertain

whether the Claimant had a good alibi;

(b) PC Eastman had the written statements of the

Ali’s and he had visited the premises to confirm

the break-in. Therefore, he had no reason to

consider their evidence as unreliable or lacking in

cogency;

(c) As already stated, PC Eastman ought to have

taken steps to investigate the reports of the Ali’s

such as interviewing the Claimant or obtaining a

search warrant to search for the stolen items.

However, the Claimant did not give any evidence

to suggest that, in failing to do so, PC Eastman

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was motivated by spite or ill-will towards the

Claimant or that he was actuated by any indirect

or improper motive;

(d) Under cross-examination, PC Eastman denied

that the Claimant had provided him with an alibi.

Bearing in mind my earlier finding that the

Claimant had failed to prove that he was arrested

and charged on the 7th June 1995 and that I

preferred the evidence of PC Eastman as to the

correct date of this incident, I also find that the

Claimant’s evidence as to what he said to PC

Eastman at the station was unreliable. Under

cross-examination, the Claimant attempted to

enlarge on his evidence in chief as contained in

his witness statement as to his encounter with PC

Eastman at the police station and I formed the

opinion that he was prepared to exaggerate

and/or fabricate his evidence in order to succeed.

In any event, even if I believed the Claimant told

PC Eastman that he was at work on the 7th June

1995, PC Eastman was not under a duty to see

whether the Claimant had a good defence to the

complaints of the Ali’s. He was not required to

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make enquiries to determine whether the

Claimant was in fact at work as a watchman on

that date;

(e) I do not consider that PC Eastman acted

recklessly. He can be criticized for not being

systematic or proactive in his investigation of the

reports made by the Ali’s but I cannot go so far as

to say that he was reckless in the discharge of his

duties as a police officer.

Constitutional redress

52. The reality of this matter is that, whether or not the 1975 Rules or

the 1998 Rules apply, the Claimant did not follow the correct

procedure for pursuing a claim for redress under the Constitution.

53. The core issue raised by the Claimant herein is that he was

maliciously prosecuted by PC Eastman. He also says in his witness

statement that he was unlawfully arrested and falsely imprisoned

in June 1995. However, those complaints were capable of being

remedied by way of common law actions for the torts of wrongful

arrest, false imprisonment and malicious prosecution. Actions for

wrongful arrest and false imprisonment ought to have been filed

within four years of the date of the accrual of the causes of action.

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Therefore, by the year 2000, prima facie those causes of action

would have become statute barred.

54. It is noteworthy that at the trial, Counsel for the Claimant did not

cross-examine PC Eastman with respect to the alleged breaches of

the Claimant’s constitutional rights. He never put to him that he

failed to caution the Claimant, that he failed to inform him of the

reason for his arrest and detention or that he failed to inform him

of his right to retain an Attorney. The entire focus of his cross-

examination was on the absence of reasonable and probable cause

for laying the charge against the Claimant. Further, he did not

advance any substantial argument or authority in response to the

Defendant’s submissions that the inclusion of the claims to

constitutional redress amounted to an abuse of process.

55. It is clear, therefore, that the Claimant had parallel remedies

available to him with regard to his allegations of unlawful arrest

and false imprisonment by PC Eastman which he failed to exercise.

Having failed to pursue those alternatives in time, should he be

permitted to include those claims in this action? In my opinion, the

issues raised in this matter are essentially disputes of fact and not

disputes of law and the Claimant ought to have sought his

remedies by the common law procedures.

Page 35 of 36

56. Accordingly, in my opinion, the inclusion of the claims for

constitutional relief in this action amounts to an abuse of process

and I am not prepared to grant any redress to the Claimant for the

alleged breaches of his constitutional rights.

Damages

57. In the light of my earlier findings, I do not need to address the

issue of damages. However, I do so just to make the point that with

regard to the legal fees incurred, the Claimant failed to produce

any receipts for this expense. In fact, he denied that he was

represented by Mr. Nath, Attorney-at-Law at the Magistrate’s

Court. He also gave no explanation of how he arrived at the figures

for travelling to Court and for food and in any event, he would have

incurred the cost of food even if he had not been charged.

58. Accordingly, even if the Claimant had persuaded me that

PC Eastman had maliciously prosecuted him, I would not have

awarded him any special damages.

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Decision

59. In the circumstances, the Claimant’s claim against the Defendant

is dismissed with costs to be paid by the Claimant to the

Defendant, certified fit for Counsel. Such costs are to be assessed

on a date to be fixed, in default of agreement.

Dated this 14th day of December 2009

Andrė des Vignes Judge

Renee Mclean Judicial Research Assistant