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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. P182 of 2015

Claim No. CV 2012-02226

Between

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

Appellant

And

JOEL ROOP

Respondent

Panel: A. Mendonça, J.A.

A. Yorke-Soo Hon, J.A.

M. Wilson, J.A.

Date of delivery: May 26, 2020

Appearances:

Ms. C. Findley, Mrs. T. Gibbons-Glenn instructed by Ms. S. Maharaj appeared on

behalf of the Appellant

Mr. Y. Ahmed instructed by Ms. C. Le Gall appeared on behalf of the Respondent

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JUDGMENT

Delivered by A. Mendonça, J.A.

1. The Respondent, Joel Roop, in these proceedings claimed damages for, inter

alia, malicious prosecution, false imprisonment or wrongful arrest and

detention. The Respondent claimed that between June and November 2009

he was wrongly arrested on four occasions and detained for varying periods of

time. The arrests of the Respondent were all conducted without a warrant.

They were all in connection with the murder on June 4, 2009 of Leo Kissoon

also known as “Fray Fray” (the deceased). The Respondent has denied having

anything to do with the murder of the deceased.

2. The body of the deceased was discovered on June 4, 2009 on the beach at

Ravita Avenue in Mayaro where he had been killed. He had been shot on the

left side of his face. Four spent 9 millimetre shells were discovered at the scene

of the crime. There were also shards of glass on the right side of the deceased’s

body and a “White Oak” label – a brand of rum – was also noticed by the

officers investigating the crime.

3. On November 10, 2009 the Respondent together with Akil DeCaine (Akil) were

charged with the murder of the deceased. The charge was dismissed against

the Respondent at the preliminary enquiry. The Respondent claims that his

prosecution was malicious.

4. The Trial Judge found in favour of the Respondent and gave judgment in his

favour as follows:

(i) Judgment for the [Respondent] for malicious prosecution of a

prosecution determined in favour of the [Respondent] arising out of a

charge for murder laid against the [Respondent] without reasonable

and/or probable cause and whereby the same was dismissed on the

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28th February 2011 by Senior Magistrate Jai Narine on a no case

submission.

(ii) Judgment for the [Respondent] for false imprisonment and/or

wrongful arrest for the periods of detention 13th June 2009 to the 15th

June 2009, a period of 3 days, in the latter part of June 2009 for 7 days,

from the 19th October 2009 to the 23rd October 2009 a period of 5 days

and from the 10th November 2009 to the 28th February 2011 a period

of 476 days. The [Respondent’s] total period of imprisonment was 491

days.

(iii) The [Appellant] to pay the [Respondent] special damages in the sum of

$5,000.00 with interest at 3% per annum from the 10th November 2009

until judgment.

(iv) The [Appellant] to pay the [Respondent] general damages, which

includes the uplift for aggravated damages, in the sum of $220,000.00

with interest at the rate of 6% per annum from the date of filing of the

claim to judgment.

(v) The [Appellant] to pay the sum of $10,000.00 exemplary damages.

(vi) The [Appellant] to pay the [Respondent] costs in the sum of

$44,250.00.

5. The Appellant has appealed from the entirety of the Trial Judge’s order and

seeks an order setting it aside.

6. We will first consider the claims in respect of false imprisonment or wrongful

arrest and detention.

7. We may say at the outset that this appeal challenges several findings of fact

by the Trial Judge. The approach of this court when asked to review a judge’s

finding of fact is well rehearsed and we need not refer to the many authorities

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in which that approach has been discussed. We believe it is sufficient to

emphasise that before this court may set aside a trial judge’s finding of fact it

must be satisfied that the trial judge was plainly wrong in coming to that

finding. What that means has been explained in the case of Beacon Insurance

Company Limited v. Maharaj Bookstore Limited [2014] UKPC 21, para 12:

“12. ….It has often been said that the appeal court must be satisfied that the judge at first instance has gone “plainly wrong”. See, for example, Lord Macmillan in Thomas v Thomas at p 491 and Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1, paras 16-19. This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts: Piggott Brothers & Co Ltd v Jackson [1992] ICR 85, Lord Donaldson at p 92. Rather it directs the appellate court to consider whether it was permissible for the judge at first instance to make the findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed record of the evidence. The court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions. Occasions meriting appellate intervention would include when a trial judge failed to analyse properly the entirety of the evidence: Choo Kok Beng v Choo Kok Hoe [1984] 2 MLJ 165, PC, Lord Roskill at pp 168-169.”

8. It is not in dispute that a police officer may arrest a person without a warrant

for the charge of murder provided that with reasonable cause he suspects that

person to be guilty of that offence (see section 3(4) of the Criminal Law Act).

In Ramsingh v. The Attorney General of Trinidad and Tobago [2012] UKPC 16,

paragraph 8 the Privy Council explained the relevant legal principles in this

way:

i) The detention of a person is prima facie tortious and an infringement

of section 4(a) of the Constitution of Trinidad and Tobago.

ii) It is for the arrestor to justify the arrest.

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iii) A police officer may arrest a person if, with reasonable cause, he

suspects that the person concerned has committed an arrestable

offence.

iv) Thus the officer must subjectively suspect that that person has

committed such an offence.

v) The officer’s belief must have been on reasonable grounds or, as some

of the cases put it, there must have been reasonable and probable

cause to make the arrest.

vi) Any continued detention after arrest must also be justified by the

detainer.

9. There are therefore subjective and objective elements in determining

reasonable cause. The arresting officer must subjectively suspect that the

person has committed the offence and his suspicion must be based on

reasonable grounds. Of relevance to those issues is the information that was

in the mind of the arresting officer at the time of the arrest. Any continued

detention after arrest must be justified.

10. The first arrest of which the Respondent complained occurred on June 13,

2009. He was detained until June 15, 2009. There was no dispute that the

arrest took place on the date as alleged by the Respondent and that he was

detained for the period he alleged. There was, however, a dispute as to where

the arrest took place. The Trial Judge preferred the Respondent’s evidence

that he was arrested while walking along Mayaro Road and not at his home as

the Appellant contends. The Appellant has argued that the Trial judge erred in

her finding as to the place of arrest.

11. The essence of the Appellant’s argument is that the court did not fully consider

the contemporaneous documents, specifically, the endorsement made on the

search warrant that was executed at the Appellant’s home on the same day as

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his arrest which says that the Respondent was home at the time, and the entry

in the police station diary confirming the execution of the search warrant and

the presence of the Respondent at the home when the search warrant was

executed. It was submitted that the contemporaneous documents support the

fact that the Respondent was arrested at his home on June 13, 2009 as the

Appellant contends. The Appellant also criticises the failure of the Respondent

to call any witness to support his version of the arrest.

12. The Trial Judge was mindful of the fact that the Respondent called no other

witness to support his allegation as to the place of his arrest but was prepared

to attach only little weight to that. However, the Trial Judge did not refer to

the contemporaneous documents and it is accepted that the Trial Judge

should check her impression of the witness against any contemporaneous

documents.

13. The endorsement on the search warrant and the entry in the station diary

point to the fact that the Respondent was at his home when the search

warrant was executed and according to the endorsement on the search

warrant the Respondent was informed of his constitutional rights. Although

the search warrant did not turn up a gun for which the police were searching,

according to the evidence of Corporal Sobie, one of the investigating officers,

the Respondent was then arrested at his home “to be questioned based on

the information received from” an informant. In our judgment, the Trial

Judge’s omission to consider this evidence was a material omission and is

sufficient to undermine her finding as to the place of the arrest.

14. It seems to us more plausible that the Respondent would have been arrested

at his home at the time of the execution of the search warrant as the Appellant

contends. In our view, the Trial Judge’s finding in this regard cannot stand and

should be set aside.

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15. However, as we mentioned, neither the fact of the Respondent’s arrest on

June 13, 2009 nor the period of his detention is disputed. The question that

therefore arises is whether that arrest and detention were lawful.

16. According to Cpl Sobie who made the arrest, Inspector George, another

investigating officer, had told him that he had received information from an

anonymous informant. Inspector George told Cpl Sobie the information he had

received. It was based on that information that Cpl Sobie arrested the

Respondent.

17. The informant’s information that was in the possession of Cpl Sobie was

contained in his witness statement. This was supported by the witness

statement of Inspector George. He too stated the information that was given

to him by the informant and that he had conveyed the information to Cpl

Sobie. That information was however struck out from both witness statements

at a hearing before the Trial Judge dealing with evidential objections prior to

the commencement of the trial. There was, however, no appeal from that

order by the Appellant, which the Appellant ought to have done by way of

procedural appeal if he proposed to challenge the order. The Appellant,

however, now wishes to contend that the Trial Judge was wrong to have struck

out the informant’s information.

18. We accept that it is open to this court to hear submissions on the point and if

in agreement with the Appellant’s arguments, set aside the Trial Judge’s order

even though a notice of appeal has not been filed (see section 39 of the

Supreme Court of Judicature Act). That is a discretion that resides in this court.

We, however, agree with counsel for the Respondent that it is now too late to

allow the propriety of the striking out of the informant’s information to be

raised before this court. The trial proceeded on the basis that that information

was struck out. If it had not been, that may have impacted on the cross-

examination which according to the Respondent would have been more

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focused on the information given by the informant and whether the

information disclosed in the witness statement of Cpl Sobie was the full extent

of what was communicated to him. The answers to that line of questioning

could be material to the lawfulness of the arrest. It would therefore be unfair

to allow the issue of the striking out of the informant’s information to be raised

at this stage.

19. It follows that there is no evidence that can provide any reasonable or

probable cause for the arrest of the Respondent on June 13, 2009. Similarly,

there is no evidence that would justify his detention to June 15, 2009. We are

therefore in agreement with the Trial Judge that the arrest of the Respondent

on June 13, 2009 and his detention to June 15, 2009 were wrongful.

20. We may mention that even if we were to pay regard to the evidence in the

witness statements of the information received from the informant and

communicated to Cpl Sobie, it would not alter the conclusion as to the

wrongfulness of the arrest. According to Cpl Sobie, the information was that

the informant overheard a conversation among certain men, including the

Respondent, in which they were discussing the particulars of the murder,

specifically with regard to the sequence in which the injuries were inflicted on

the victim. In our view, that cannot by itself give rise to a reasonable suspicion

that the Respondent was guilty of the murder of the deceased. Indeed, it does

not appear that at the time of the arrest of the Respondent Cpl Sobie

suspected that it did as according to him the Respondent was arrested “to be

questioned”.

21. The Respondent contends that he was next arrested late in the month of June

2009. This was disputed by the Appellant who contended that the Respondent

was not arrested again in June and that the next time he was arrested was in

October 2009. The Trial Judge preferred the evidence of the Respondent and

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found that he was arrested in the latter part of June and detained for seven

days as he claimed.

22. According to the Respondent, after this arrest he was first taken to the Mayaro

police station before being transferred to the Rio Claro police station. In all, he

was detained for a period of seven days during which time he was questioned

on several occasions by Cpl Sobie and Inspector George.

23. The Trial Judge in coming to her finding considered the parties’ evidence in

chief and in cross-examination. She noted that the Respondent did not call any

other witness to support his assertion that he was arrested in the latter part

of June. This was notwithstanding his evidence that when he was arrested on

this occasion he was escorted out of his home in handcuffs and in full view and

presence of his family and neighbours. The Trial Judge, however, stated that

the failure to call a witness who can corroborate the Respondent’s evidence

did not necessarily mean that she ought to have drawn an inference adverse

to the Respondent or to attach little weight to his evidence. She stated that

she accepted the Respondent’s evidence for three reasons, namely (1) the

Respondent’s pleading and evidence was consistent and unshaken; (2) there

was no plausible reason for the Respondent to make up the circumstances

leading to this arrest and detention; (3) the Appellant knew that the

Respondent was alleging that he was arrested for a second time in June but

chose not to provide any evidence in support of its blanket denial such as

station diary records.

24. The Appellant challenges this finding by the Trial Judge. The Appellant argues

that the Respondent provided no specifics of this alleged arrest in terms of

dates or time of the arrest. Further, despite saying that at the time of his arrest

he was escorted out of his home in full view of his family and neighbours, he

failed to lead any evidence corroborating these allegations and has provided

no explanation for his failure to do so. The Appellant also submits that the Trial

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Judge erroneously reversed the burden to prove the fact of the arrest when

she placed the burden on the Appellant to produce station diary extracts or

other records to support its contention that the Respondent was not arrested.

The Appellant argued that in the circumstances, simply to rely on the bare

assertion that the Respondent was arrested on the second occasion in June is

not justified.

25. The Respondent essentially supported the Trial Judge’s reasoning.

26. The failure on the part of the Respondent to call a witness who could

corroborate his evidence on the circumstances of the arrest as alleged by the

Respondent is a factor that should be considered in determining whether to

accept his evidence. But it does not follow that the failure by the Respondent

to call such a witness leads inevitably to the drawing of an adverse inference

and to the conclusion that his evidence is not to be accepted. We do not

believe in this case that the Trial Judge’s acceptance of the Respondent’s

evidence is to be rejected simply for the reason that the Respondent failed to

call a witness who could corroborate his evidence. There were other factors

to be considered. Among them is that the Appellant did not disclose or

produce any station diary records which may put in issue the Respondent’s

allegation that he was arrested and detained for a second time in June as it

was his obligation to do and as one would expect him to do given the very clear

allegation in the statement of case. To take this into account is not to shift the

burden on to the Appellant to disprove the fact of the arrest but is material to

the assessment of the evidence as a whole which includes evidence by the

Respondent that he was arrested a second time in June and the circumstances

in which it occurred and what followed thereafter.

27. Although the Respondent did not give the exact date of his arrest, he identified

it as the latter part of June about two weeks after his first arrest. He also gave

other evidence as to what occurred on the occasion of this arrest which

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included the ransacking of his home by the police in search of a gun, his

detention for seven days and interrogation on several occasions by Cpl Sobie

and Inspector George. All of this would have assisted the Appellant in putting

a more positive case rather than a bare denial.

28. In our judgment it was open to the Trial Judge to accept the Respondent’s

evidence as she did. In the end it was a matter of credibility which the Trial

Judge was in the best position to judge.

29. As we mentioned, there was really no more than a bare denial by the Appellant

that the Respondent was arrested on the second occasion in June. There was

therefore no explanation for the arrest and no information on which the court

could have found there was reasonable and probable cause for the arrest. The

Trial Judge was therefore correct to find that the arrest and detention of the

Respondent on this occasion was unlawful.

30. The Respondent was arrested again in the month of October 2009. There was

no dispute that he was arrested on this occasion but where he was arrested is

again disputed. The Trial Judge on this occasion preferred the Appellant’s

evidence and the Respondent has not appealed from the Trial Judge’s finding.

In these circumstances we can proceed on the basis that the Respondent was

arrested on October 19, 2009 at his home when another search warrant was

executed. He was detained until October 23, 2009. The question that arises is

whether there was reasonable and probable cause for the arrest of the

Respondent.

31. By the date of this arrest the police in the course of their investigations into

the murder had obtained statements from Rodrick Jotis (Jotis).

32. On October 16, 2009 Inspector George and Cpl Sobie interviewed Jotis and Cpl

Sobie took notes of the interview. The tenor of what Jotis said at that interview

was that Jotis did not have any information in connection with the murder.

According to Cpl Sobie, when he was certifying the notes taken during the

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interview Jotis said that the information he had just given was not truthful and

he now wanted to speak the truth and say what really happened. Jotis then

gave a statement (for convenience we would refer to this as the second

statement). His second statement implicated the Respondent in the murder.

33. Jotis stated, inter alia, that the Respondent (whom he knew as “Apache” or

“Pache”) and Akil (whom he knew as “Boe”) were liming or hanging out at his

home on the night of the murder. They left the home saying that they were

going on the beach. This was the beach where the deceased’s body was found

and where, from the information in the possession of the police, the deceased

was murdered. The following are material parts of Jotis’ second statement:

““Apache” [the Claimant], Akil and other persons were liming at his home on night of the murder, he was inside cleaning fish and he cut his hand and stopped cleaning fish and went outside and joined the lime. Apache and Akil left saying they going on the beach to come back. About 5 minutes later he heard about three shots coming from the beach.

Everybody left and he went inside and lock up the house. From the window of his bedroom he was able to see the road in front and he saw Pache running on the road from the beach with a small gun in his hand. He got up and opened the front door and Boe (Akil DeCaine) run inside by him and said “Boy we now kill somebody on de beach dey.”

The next day he met Akil by Sugar’s Bar and asked him what really went on last night boy and Akil said “Boy ah kill somebody last night”. He later told him “Anytime police hold yuh an yuh talk ah going to kill yuh”. He left the bar and Pache walked out with him and he asked Pache wah went on last night and Pache responded “We was walking down the beach an Akil see ah man an jus shoot him jus so an I hit him ah glass on he head to make sure he dead.” He also told him make sure he doh say nothing to the police because Boe real ignorant. He went home.

The next day he met Pache and Boe at the side of Sugars Bar and Boe had a papers in his hand and he showed it to him and said that’s de man who we kill de night. About a month later he met Boe on the road and Boe asked him if he informing to the police

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and said the police come and hold him and question him and doh tell de police nuttin and we good.

He also indicated that he did not come forward to the police before “cause dey did threaten meh an ah was frighten fuh meh life” he stated that he did not tell nobody except his mother what happened ah didn’t tell her how Akil and Pache did pass after the shooting she know about the threats.”

34. In the light of that statement Inspector George then arrested the Respondent

as a suspect in the murder investigation which the parties have understood to

mean as a person suspected of having committed the offence of murder of the

deceased.

35. The Trial Judge was of the view that there was not sufficient cause to arrest

the Respondent on this occasion. She gave the following reasons for coming

to that conclusion: (1) the only new information that Inspector George and Cpl

Sobie had since the last arrest of the Respondent was the second statement

of Jotis which both officers did not believe was entirely truthful; (2) both

officers did not have a common position on the aspects of the second

statement that were not truthful; (3) the officers still did not have the murder

weapon; (4) there was a notable absence of evidence that they took steps to

check the information in the second statement against the backdrop that they

did not believe aspects of it. The Trial Judge concluded:

“With respect to the subjective test, in my view, Inspector George could not have formulated a genuine suspicion in his own mind that the [Respondent] had committed the murder of the deceased since he admitted that he did not believe certain aspects of the second statement which was the basis of the arrest in October 2009. Even if he did the objective circumstances did not support his belief.”

36. The Appellant has submitted correctly that as Inspector George was the

arresting officer it is necessary to consider whether he had reasonable and

probable cause. The Appellant argued (1) the fact that Inspector George did

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not believe the entirety of Jotis’ second statement does not mean that there

was no reasonable suspicion that could be aroused from the said statement;

(2) the absence of a murder weapon did not mean the Respondent could not

be arrested as the second statement was sufficient to arouse a reasonable

suspicion for the arrest; and (3) the Trial Judge’s finding that no steps were

taken to check the information in the statement was contrary to the evidence.

37. The Respondent supported the Trial Judge’s reasoning and conclusion.

38. The material question is whether Inspector George as the arresting officer had

reasonable cause to suspect the Respondent as having murdered the

deceased. The second statement did implicate the Respondent in very clear

terms in the murder of the deceased. According to that statement Jotis had

seen the Respondent running with a gun from the beach where the victim’s

body was found and Akil said “we” now killed somebody on the beach which

can reasonably be interpreted to refer to him and the Respondent. According

to Jotis, the next day the Respondent spoke to him and stated that Akil shot

the deceased and he “hit him ah glass in he head to make sure he dead”. The

identification of the victim was also verified by Akil so it is clear that what Jotis

said was told to him by the Respondent and Akil was in relation to the murder

of the deceased.

39. According to the evidence, this statement was the only new information that

the police had in their possession that implicated the Respondent. It could

provide reasonable and probable cause. The problem for the Appellant

though, is that Inspector George did not believe much of the statement. He

stated that the only parts of the statement he believed were that the

Respondent and Akil were on the beach and that they shot and killed

someone. He added that from his investigations he knew that was truthful. If

Inspector George had any other information from his investigations that could

implicate the Respondent, that was not before the court.

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40. What Inspector George was saying in effect was that he disbelieved those

parts of the second statement that explained in detail how Jotis had come into

possession of the information that Akil and the Respondent had murdered the

deceased. The statement of Jotis had therefore reduced itself in the eyes of

Inspector George to simply that Akil and the Respondent were on the beach

and killed someone. Can that satisfy the test of reasonable cause to render the

arrest lawful?

41. As we explained above, the test has both subjective and objective elements

which must both be satisfied. Even if we were to accept that Inspector George

satisfied the subjective element that he suspected the Respondent had

committed the murder, that belief must be based on reasonable grounds. The

second statement of Jotis set out how he had come by the information relating

to the involvement of the Respondent in the murder of the deceased. But

Inspector George did not believe any of that. In our judgment, by not believing

anything in the second statement other than Akil and the Respondent killed

someone, Inspector George in fact excised those parts of the second

statement that could provide reasonable grounds for his belief.

42. In our judgment therefore, in agreement with the Trial Judge, the arrest of the

Respondent on October 19, 2009 was not lawful. The Respondent was

detained until October 23, 2009. In respect of the period of detention,

whether he was unlawfully detained, the Trial Judge stated, “Having found

that there was no reasonable and probable cause to arrest [the Respondent]

on the 19th October 2009, I am of the view that the objective circumstances

did not support any genuine suspicion by Inspector George to detain and

question [the Respondent] during that period”. We agree that the Trial Judge

was correct to hold that the Respondent was unlawfully detained from

October 19 to October 23, 2009.

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43. Subsequent to the arrest of the Respondent on October 19, 2009 he was again

arrested on November 7, 2009 in connection with the murder. The arrest was

effected by Sergeant Doodhai. He did not give evidence and there is no

evidence before the court as to whether he subjectively suspected the

Respondent as having committed any offence, or if so, whether there were

reasonable grounds for such a belief. The Appellant has failed to justify this

arrest and it must therefore be held to be unlawful.

44. After the Respondent was arrested on November 7, he was detained until he

was charged with the murder of the deceased on November 10, 2009. As he

was on a charge of murder, the Respondent was not entitled to bail. He

remained imprisoned until the charge was dismissed at the preliminary

enquiry on February 28, 2011. The Trial Judge held that the Appellant was

liable in malicious prosecution. The Appellant contends that the Trial Judge

was wrong so to hold.

45. It is well settled that in order to succeed in a claim for malicious prosecution

the claimant must show (1) that he was prosecuted by the defendant; (2) that

the prosecution was determined in his favour; (3) that the prosecution was

without reasonable and probable cause; and (4) that it was malicious. The

onus is on the claimant to establish all of these criteria. If the claimant fails to

establish any one of them, his claim fails.

46. There is no dispute in this case that the Respondent has established that he

was prosecuted by the Appellant and that the prosecution was determined in

his favour. The dispute in this appeal concerns the other two criteria, namely

that the prosecution was without reasonable and probable cause and that it

was malicious. The Trial Judge found that the Respondent had established

both criteria. The Appellant contends that the Trial Judge’s findings are

erroneous. We will consider each in turn.

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47. Reasonable and probable cause has been defined as an honest belief in the

guilt of the accused based upon a full conviction founded upon reasonable

grounds of the existence of a state of circumstances, which, assuming them to

be true, would reasonably lead any ordinarily prudent and cautious man,

placed in the position of the accuser, to the conclusion that the person charged

was probably guilty of the crime imputed (see Hawkins J in Hicks v. Faulkner

(1878) 8 QBD 167, 171 which was approved by the House of Lords in Herniman

v. Smith [1938] AC 305).

48. It is apparent from that definition that reasonable and probable cause in

relation to malicious prosecution, as it is in relation to reasonable suspicion to

arrest, also has subjective and objective elements. These may be summarised

this way:

i. Did the officer who laid the charge have the requisite belief;

ii. Did the officer when exercising the power to lay the charge honestly

believe in the existence of the objective circumstances which he relies

on as the basis for that belief;

iii. Was his belief in the existence of these circumstances based on

reasonable grounds; and

iv. Did these circumstances constitute reasonable grounds for the

requisite belief.

49. In order to have reasonable and probable cause the defendant does not have

to believe that the prosecution will succeed and that a guilty verdict will be

returned. It is enough that in the material on which he acted there was a

proper case to lay before the court (see Glinski v. Mc Iver [1962] AC 726 and

Willers v. Joyce [2016] 3 WLR 477).

50. What information did the Appellant have when the Respondent was charged

with the murder? This question must be answered by an assessment of the

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information in the possession of Cpl Sobie at the time when he charged the

Respondent with the murder of the deceased.

51. By the time the Respondent was arrested in November, the police had

obtained a statement from Jotis’ mother on October 24, 2009. This statement

was inconsistent with the second statement Jotis had given to the police in

which he stated that the Respondent and Akil had killed the deceased.

According to Jotis, that information was given to him by both Akil and the

Respondent. Jotis did not place himself on the beach on the night of the

murder. According to the statement of Jotis’ mother, Jotis was on the beach

on the night of the murder. In the face of that statement, the police released

the Respondent on October 23, 2009. However, according to Cpl Sobie, based

on the statement of Jotis’ mother, Jotis together with the Respondent and Akil

were arrested on November 7, 2009.

52. Around midday on November 8, 2009 Cpl Sobie stated that he interviewed

Jotis. He told Jotis that based on information received he had reason to believe

that he (Jotis) was involved in the murder of the deceased. Jotis denied

involvement but stated he was present when Akil and the Respondent killed

the deceased. He then gave a third statement (the third statement) in which

he stated that he had lied in his second statement because Akil and the

Respondent had threatened him and he was afraid of being charged as he had

witnessed everything. He went on to describe in the third statement that on

the night of the murder he went to the beach with the Respondent and Akil.

He witnessed Akil and the Respondent approaching a man who appeared to

be sleeping in a hammock under a tree and saw Akil shoot the man with a gun

he had removed from his waist. He then witnessed the Respondent hitting the

man with a bottle or a glass.

53. After giving the third statement, Inspector George and Cpl Sobie conducted,

on November 8, 2009 on the same day as the statement, what they referred

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to as the verification procedure. The reason for this was because Jotis referred

to the Respondent and Akil by their aliases and not their true names. The

purpose of the verification procedure was to confirm that the persons to

whom Jotis referred to by their aliases were the Respondent and Akil. Jotis

confirmed that they were.

54. After the verification procedure Cpl Sobie took a statement from Jotis on the

same day confirming the verification procedure had taken place and his role

in it.

55. After the verification procedure was conducted, Inspector George and Cpl

Sobie requested further interviews with Akil and the Respondent but they

refused to participate.

56. According to Cpl Sobie, he then held discussions with Ms. Honore-Paul, the

Assistant Director of Public Prosecutions (the Assistant DPP). He was

instructed by her to place Jotis’ statements on a statutory declaration. This

was done.

57. The Assistant DPP also instructed Inspector George and Cpl Sobie to revisit the

scene of the murder with Jotis to confirm the location where he said he

witnessed the murder take place.

58. According to Cpl Sobie, on November 10, 2009 he and Inspector George went

with Jotis who took them along the path that he said Akil and the Respondent

took on the night of the murder to where he witnessed the murder took place.

According to Cpl Sobie, Jotis took them to the exact location on the beach

where the deceased’s body was found.

59. Following this confirmation procedure, Cpl Sobie took a statement from Jotis

confirming that he had undertaken the procedure.

60. According to Cpl Sobie, the Assistant DPP then gave instructions to charge the

Respondent with the murder of the deceased. At 2:00pm that day (November

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10, 2009) Cpl Sobie formally charged the Respondent with the murder of the

deceased.

61. In cross-examination, Cpl Sobie was asked to tell the court his opinion of the

truthfulness of the third statement. He identified certain parts relating to an

account of how Jotis sustained a cut on his finger on the night of the murder

and that he had told his mother what had happened. Other than that, Cpl

Sobie stated that he believed his statement to be truthful.

62. In finding that there was an absence of reasonable and probable cause, the

Trial Judge stated that there was no cogent evidence linking the Respondent

to the murder of the accused. She noted that Jotis, the sole eyewitness, gave

three inconsistent statements; the search warrants did not produce a gun;

Jotis could have seen the body on the beach the day after the murder and

there was no scientific evidence connecting the Respondent to the murder of

the deceased. The Trial Judge concluded that based on the aforesaid objective

facts it was clear that Cpl Sobie could not have honestly believed that the

Respondent was guilty since he expressed doubt on the truthfulness of the

statements of the prosecution’s main witness, Jotis. But even if he honestly

believed this, the objective circumstances did not support his belief.

63. We will first consider whether Cpl Sobie had an honest belief in the guilt of the

Respondent.

64. It is true that the third statement of Jotis was inconsistent with his first and

second statements. In the third statement, Jotis said that he saw what had

occurred and stated that he saw Akil shoot the deceased and the Respondent

hit him with a glass or bottle to make sure he was dead. The use of the firearm

and the glass or bottle in the murder of the victim were consistent with Cpl

Sobie’s observations when he first viewed the body. According to him, he

noticed a gunshot wound on the left side of the deceased’s face and shards of

glass on the right side.

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65. According to Cpl Sobie he believed the third statement. While he stated that

there were parts of the statement that he did not believe, those parts did not

include the assertions that Jotis was on the beach that night and witnessed the

murder. Accepting that as truthful is not inconsistent with the fact that Cpl

Sobie expressed doubt as to the truthfulness of Jotis’ previous statements or

that those statements were not consistent with the third statement. Jotis,

after all, had given an explanation why he had not come forward before to

speak the truth. At the time he gave the second statement, he said he was

threatened by Akil and the Respondent and he was afraid. When he gave the

third statement he added a new dimension that he was afraid that had he told

the true story, he might have been charged as well or as he put it, “he was

frighten he would get case”. That is a plausible explanation why Jotis might

have been reluctant to come forward and say what he knew of the murder.

Jotis’ third statement could give rise to an honest belief in the guilt of the

Respondent for the murder of the deceased. We therefore do not agree with

the Trial Judge’s conclusion. There is no basis not to accept Cpl Sobie’s

evidence that he believed Jotis’ third statement and accordingly had an honest

belief in the guilt of the Respondent.

66. The Trial Judge was of the view that even if Cpl Sobie had an honest belief,

there was no objective circumstances, or in other words, no reasonable and

probable cause for Cpl Sobie’s belief. We have set out the Trial Judge’s reasons

for concluding as she did at paragraph 62 of this judgment. We are unable to

agree with the Trial Judge.

67. We do not accept the Trial Judge’s assertion that there was no cogent evidence

linking the Respondent to the murder of the deceased. Jotis’ third statement

clearly did so. While Jotis had given three statements that differed from each

other, that does not mean there were no reasonable grounds to support Cpl

Sobie’s honest belief. A jury could be asked to accept the third statement as

truthful as opposed to the previous two and the jury may do so.

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68. Jotis’ third statement was a clear statement that he had witnessed the murder.

The description of the murder – the shooting, the use of bottle or glass – was

consistent with what was seen at the scene of the crime at the time the body

was discovered. Further, the statement of Jotis’ mother lends some support

to Jotis’ third statement. According to her statement, she placed Jotis on the

beach that night. Also, she had seen the Respondent run pass her from the

direction of the beach on the night of the murder after hearing gunshots. That

also places the Respondent on the beach. Further, Jotis also spoke of the

Respondent running from the beach after the murder took place.

69. The Trial Judge was correct to say that the search warrants executed by the

police failed to find the gun that was used in the murder. But that cannot lead

to the conclusion that there is no reasonable and probable cause. According

to Jotis, he saw Akil with a gun and he saw him shoot the deceased. There was

no doubt that the deceased was shot and spent shells were found at the scene

of the crime. These circumstances would lead any ordinarily prudent man to

conclude that a gun was used and that Jotis had witnessed the incident. In any

event, there is no principle of law or evidence that the prosecutor must have

the murder weapon before he can have reasonable and probable cause. It

should be noted that the absence of a murder weapon has not stood in the

way of a jury returning a guilty verdict (see for example Duporte v. The Queen

[2015] UKPC 18; Lundy v. The Queen [2013] UKPC 28; Pora v. The Queen

[2015] UKPC 9).

70. The statement of the Trial Judge that Jotis could have seen the body on the

beach on the day after the murder is directed to the confirmation procedure

where Jotis was taken to visit the scene of the murder to confirm the location

where the deceased was found matched the location where Jotis claimed to

have witnessed the murder. Apparently Jotis was not asked by the

investigating officers if he had seen the body lying on the beach the day after

the murder before it was removed by the authorities. This seems to be

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directed to the investigator’s conduct in the conduct of the investigations in

that they failed to ask that question of Jotis and seems to imply as he could

have seen the location of the body the day after the murder that could impact

on the veracity of his statement. The fact of the matter, however, is that Jotis

had given a statement in which he identified how he came to be at the scene

of the crime and witnessed the murder of the deceased by Akil and the

Respondent. The question whether he might have seen the body on the beach

the day after the murder was simply not one that arose in the face of Jotis’

third statement. Indeed, that some months after the murder Jotis was able to

identify the location where the murder took place is indicative not of a casual

or curious viewing of the body the day after the murder but of someone who

may have actually witnessed the murder.

71. The other matters referred to by the Trial Judge – there being no scientific

evidence to connect the Respondent to the crime – is not sufficient to

conclude that there is an absence of reasonable and probable cause in the face

of the statement by someone who claimed to have witnessed the murder and

gave convincing particulars of it; particulars which were supported by other

evidence.

72. There were matters that Cpl Sobie was criticised for not investigating. But

these in our view did not take away from there being reasonable grounds to

believe the Respondent was guilty of the murder of the deceased. It should be

noted that the failure to conduct investigations is not necessarily a basis on

which an absence of reasonable and probable cause is demonstrated and it is

not so in this case. As was noted in Herniman v. Smith (supra) (at page 319):

“It is not required of any prosecutor that 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 a reasonable and probable cause for a prosecution”.

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73. In view of the above, we cannot accept the Trial Judge’s finding that there was

an absence of reasonable and probable cause. In our judgment, Cpl Sobie’s

evidence established that he had an honest belief in the guilt of the

Respondent which was founded on reasonable grounds which, assuming them

to be true, would lead any ordinarily prudent and cautious man to the

conclusion that the Respondent was probably guilty of the murder of the

deceased.

74. As we mentioned earlier, for a claimant to succeed in the tort of malicious

prosecution he must establish all of the criteria referred to earlier which

includes the absence of reasonable and probable cause. Having failed on that

issue, it follows that the Respondent’s claim in malicious prosecution fails and

it is not necessary to consider the issue of malice. However, for completeness

we will do so.

75. In Williamson v. The Attorney General of Trinidad and Tobago [2014] UKPC

29, the Privy Council noted that proof of malice as with the absence of

reasonable and probable cause requires the proof of a negative proposition,

normally among the most difficult of evidential requirements. The Board

stated that a good working definition of what is required for proof of malice in

the criminal context is to be found in A v NSW [2007] HCA 10; 230 CLR 500, at

para 91:

“What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - an ‘illegitimate or oblique motive’. That improper purpose must be the sole or dominant purpose actuating the prosecutor”

76. It was made clear by the Privy Council that “an improper and wrongful motive

lies at the heart of the tort, therefore. It must be the driving force behind the

prosecution. In other words, it has to be shown that the prosecutor’s motives

is for a purpose other than bringing a person to justice.”

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77. The Trial Judge noted that the Respondent alleged as a ground of malice that

Cpl Sobie and other police officers had tricked or beat or coerced or forced

Jotis into giving the third statement that he was an eyewitness to the murder

and the Respondent was a participant. The Trial Judge, however, correctly

found that the Respondent had failed to provide any evidence of that

allegation. The Respondent therefore failed to prove that allegation which was

strenuously denied by the Appellant.

78. The Trial Judge, however, also noted that the Respondent had pleaded that

material omissions by the police officers in the course of their investigations

amounted to a fabrication or concoction of evidence against the Respondent

from which one can infer an improper motive and malice on the part of the

Appellant. The Trial Judge agreed with this and identified the following as

omissions:

a. A failure to verify if Rodrick Jotis, the only eyewitness and the only person

with direct evidence against the [Respondent] had a criminal record since

he had given three inconsistent statements.

b. A failure to verify any of the information in the third statement knowing

that it was inconsistent with the other two statements. In the third

statement Rodrick Jotis said that there was a fight at the bar on the night

of the murder and that he cut his hand with a champagne glass and that a

girl from the bar called the police. PC Sobie admitted that he did not verify

this account by at least checking the police records to see if such an

incident was reported. Rodrick Jotis also referred to “Wendell” but PC

Sobie admitted that he never searched for him. PC Sobie also admitted

that he did not seek to locate the persons referred to in Rodrick Jotis third

statement.

c. A failure to check for scientific evidence linking the [Respondent] to the

murder since Rodrick Jotis said in his third statement that the deceased

26

was shot some four footsteps away but PC Sobie admitted that he could

not recall if he asked about gunpowder residue on the deceased.

79. We do not accept that omissions to investigate significant or material matters

can amount to a concoction or fabrication of evidence. The Respondent has

produced no authority that could support that contention. Neither has he

pointed to the evidence that was concocted or fabricated. In our judgment, he

has failed to establish that there was a concoction or fabrication of evidence.

The evidence before the court sets out how the investigating officers, including

Cpl Sobie, went about obtaining the information implicating the Respondent

and Akil. The allegation by the Respondent that Jotis was beaten or coerced

into giving the statement was correctly rejected by the Trial Judge. That

evidence does not amount to concoction or fabrication. In our judgment, the

Respondent fails in so far as his case depends on concoction or fabrication of

evidence as evidence of malice.

80. We, however, believe that read fairly, what the Trial Judge appears to be

saying is that omissions to investigate significant and material matters may

point to a motive other than the proper invocation of the criminal law and

provide evidence from which malice may be inferred. She found that to be the

case. We are prepared to accept that the failure to investigate obviously

significant and material matters may in some circumstances provide evidence

of an improper motive. But whether that is so will depend on the facts of the

case. We propose to consider the matter in that light.

81. We do not accept that the omissions identified by the Trial Judge (see para 78

above) were material or significant.

82. The omissions at (a) seems to suggest that a person with a criminal record

cannot be truthful. But that of course is not so and many successful criminal

prosecutions have depended on witnesses with a criminal record.

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83. In the face of Jotis’ third statement, which was consistent with the physical

evidence at the scene of the murder and received some support from the

statement of Jotis’ mother, the matters at (b) and (c) are not significant or

material and the failure to investigate them are not indicative of an improper

motive. The failure may point in the direction of sloppiness but as was said in

Juman v The Attorney General of Trinidad and Tobago and anor [2017] UKPC

3, that in itself is very different from malice.

84. In our view, a finding of malice is dependent on the facts of the case. It is a

finding that must be arrived at on an assessment of the totality of the relevant

evidence. Does the evidence disclose that Cpl Sobie’s sole or dominant motive

in laying the charge of murder is one other than the proper invocation of the

criminal law, or in other words, one other than bringing a person to justice.

85. In our judgment, there is absolutely no evidence that the sole or dominant

purpose for the prosecution by Cpl Sobie is one other than the proper

invocation of the criminal law.

86. First of all, contrary to the conclusion of the Trial Judge that this was an

investigation that was controlled to point only in the direction of the

Respondent, the fact is that the Respondent was not the only one charged

with the murder of the deceased. Akil was charged jointly with him.

87. The Respondent (together with Akil) were not charged until Jotis had given the

third statement that he had witnessed the murder and the involvement of the

Respondent. This was not the first time Jotis had implicated the Respondent.

He did so as well in his second statement. Inspector George however did not

believe the entirety of that statement. In his view, it was not consistent with

other investigations he had conducted.

88. Cpl Sobie also had difficulty accepting the truth of that statement. Although

the Respondent was arrested at the time of the second statement, he was not

then charged. Investigations were pursued and when the statement from

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Jotis’ mother was obtained which did not support Jotis’ second statement in

material respects, the Respondent was released. There was therefore no

eagerness to charge the Respondent with the offence of murder come what

may. That is not the behaviour of an investigating officer seeking to control

the investigation to point to the guilt of the Respondent. That points to an

officer seeking only to secure the ends of justice and use the criminal process

for the proper motive.

89. It is also to be noted that after Jotis had given the third statement, Cpl Sobie

and Inspector George attempted to interview the Respondent but he refused

to participate. That too does not point to officers acting on an improper

motive. This is also borne out by steps taken after the third statement to

confirm that Jotis was in fact referring to the Respondent and that he was able

to correctly identify where the murder had taken place.

90. An important aspect of the evidence of the Appellant is the evidence that the

investigating officers sought the advice of Ms. Honore-Paul, the Assistant

Director of Public Prosecutions. According to Cpl Sobie, he sought the advice

of the Assistant DPP on three occasions, namely (1) when they released the

Respondent on October 23, 2009 following his arrest on October 19, 2009.

According to Cpl Sobie, several persons were interviewed and a statement was

obtained from Jotis’ mother which was not consistent with the second

statement of Jotis. He stated that on instructions by the Assistant DPP, the

Respondent was released pending further investigations. (2) On November 9,

2009 when the Assistant DPP instructed Cpl Sobie to place the statements of

Jotis on a statutory declaration and to revisit the scene of the murder; and (3)

on November 10, 2009 when Cpl Sobie was given instructions by the Assistant

DPP to charge the Respondent with the murder of the deceased.

91. The Trial Judge concluded that Cpl Sobie’s evidence on the communication

with the Assistant DPP and the advice he received was less than convincing.

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This was because prior to November 10, 2009 there was no record such as a

station diary extract to confirm when the police files were sent to the Office

of the Director of Public Prosecutions and what documents were in the file.

The Trial Judge acknowledged that there was an extract of a station diary from

November 10, 2009 which referred to discussions with the DPP and the receipt

of instructions to lay the charge of murder. The Trial Judge, however, stated

that the extract did not state the nature of the discussions, the documents and

information given to the Office of the Director of Public Prosecutions. She

therefore concluded that there was no evidence before November 10 to

support Cpl Sobie’s assertion that he was acting on the advice of the Assistant

DPP.

92. The conclusion of the Trial Judge seems to accept that there were discussions

with the Assistant DPP on November 10, but the nature of the discussions held

with the Assistant DPP and the documents and information in her possession

were not evidenced by the station diary extract.

93. According to the evidence of Inspector George, the police only lay a charge for

murder upon instructions from the Office of the DPP. That accords with our

understanding of the practice in this jurisdiction and that is the evidence in

this case. It is clear from the evidence that that is what occurred and in our

view there is no basis to reject that evidence. The extract of the station diary

for November 10 reflects that. The Trial Judge’s finding does not dispute that

instructions were given to lay the charge of murder. What she seems to be

inferring is that as there was no documentary evidence as to the nature of the

discussions or the information and documents given by the police to the DPP,

no relevance or weight should be attached to the evidence that the police had

received the advice of the Assistant DPP. That suggests that either the police

would not have been forthright with the Assistant DPP or the Assistant DPP

would have discharged her duty without a proper understanding of the

matter. There is however no evidence to support either of those propositions.

30

94. It is appropriate in our judgment, in the absence of evidence to the contrary,

to infer that the police would properly discharge their duty and properly brief

the Assistant DPP. Similarly, it is reasonable to infer that the Assistant DPP

would not give instructions to charge for murder unless she had sight of the

relevant documents. What evidence there is points in that direction. The

Assistant DPP was aware that Jotis had given statements and gave instructions

that they all be put on a statutory declaration. She also advised that Jotis revisit

the scene of the murder to confirm the location where the deceased’s body

was found matched where Jotis claimed to have witnessed the murder. This

points to the fact that the Assistant DPP had knowledge of the contents of the

statements and supports the evidence that she was in possession of the file.

95. We are unable to support the Trial Judge’s conclusion minimising to the point

of irrelevance that the advice of the Assistant DPP was obtained before the

charge of murder was laid against the Respondent. It is clear to us that there

is no reasonable basis to reject that evidence and that both the police and the

DPP properly discharged their respective roles in seeking and giving such

advice.

96. The fact that the police sought the advice of the DPP is evidence that tends to

negate the presence of malice.

97. In our judgment, the evidence before the court does not support the presence

of malice. There is no evidence, in our judgment, that the motive for the

prosecution of the Respondent was other than for the purpose of bringing him

to justice. The Trial Judge was plainly wrong to conclude otherwise.

98. In our judgment, in the circumstances, the Trial Judge’s order that the

Appellant is liable in malicious prosecution must be set aside. The Respondent

is, however, entitled to judgment for false imprisonment or wrongful arrest

and detention for the following periods:

a. June 13 to June 15, 2009;

31

b. A period of seven days in the latter part of June 2009; and

c. October 19 to October 23, 2009.

99. In relation to the arrest on November 7, 2009, in agreement with the Trial

Judge, we have found that that arrest was not justified. Although the

Respondent was not charged until November 10, 2009 there was reasonable

and probable cause to detain the Respondent after Jotis had given his third

statement on November 8, 2009. The time of the arrest of the Respondent and

of Jotis’ third statement are not precise on the evidence. However, doing the

best we can, we believe it is reasonable to conclude that the Respondent was

detained for a period of twenty-four hours prior to the obtaining of the third

statement from Jotis.

100. In view of the above, we allow the appeal in part, set aside the Trial Judge’s

order and substitute for it the following:

1) There be judgment for the Respondent with damages for false

imprisonment or wrongful arrest and detention for the following

periods:

a. June 13 to June 15, 2009;

b. A period of seven days in the latter part of June 2009;

c. October 19 to October 23, 2009; and

d. A period of twenty-four hours from November 7 to November 8,

2009.

101. This leaves the assessment of damages and the issue of costs both here

and below. The evidence relating to damages is before the court. The Trial

Judge assessed the damages. Of course the Trial Judge’s award cannot stand

in view of the order of this court and has been set aside. This court should

determine the award of damages, or in other words, now assess the damages

32

in the light of its order. Then there is the issue of costs which we must also

determine. In the circumstances, we direct that the parties file and serve

submissions on both issues of damages and costs as follows:

i. The Respondent within fourteen days of the date hereof;

ii. The Appellant’s submissions in reply within fourteen days thereafter.

The parties shall also file with their submissions a bundle of the authorities on

which they intend to rely which are to be indexed and tabbed.

102. It is the intention of this court to decide the issues of damages and costs

on the written submissions of the parties. If however the court wishes to hear

oral submissions or receive any further written submissions, the Registrar will

communicate with the parties accordingly.

A. Mendonça, J.A.

A. Yorke-Soo Hon, J.A.

M. Wilson, J.A.