Trevor King et al v The AG Draft 10 (Oct. 27, 2019)

THE REPUBLIC OF TRINIDAD AND TOBAGO 

IN THE HIGH COURT OF JUSTICE 

San Fernando 

Claim No. CV2015-03383 

BETWEEN 

TREVOR KING 

RENO SAMPSON 

RON SAMPSON 

KARRELL PAVY 

GARFIELD JOSEPH 

Claimant 

AND 

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO 

Defendant 

Before the Honourable Mr. Justice Frank Seepersad 

Date of Delivery: October 29, 2019. 

Appearances: 

1. Mr. Vashist Maharaj instructed by Mr. Robert Boodoosingh Attorneys-at- 

law for the Claimants. 

2. Ms. Laura Persad, Ms. Lianne Thomas, Ms. Coreen Findley and Ms. 

Kelisha Bello Attorneys-at-law for the Defendant. 

 

DECISION 

1. Before the Court for its determination is the Claimants’ claim for malicious 

prosecution. The Claimants were arrested during the state of emergency in 

2011 on the charge that they were gang members pursuant to the provisions 

of the Anti-Gang Act of 2011. 

2. The trial proceeded against the First, Second and Fifth named Claimants as the 

third named Claimant filed no evidence in support of his case and the fourth 

named Claimant whose claim continued after his death by the substitution of 

his mother, also adduced no evidence at the trial as the substituted Claimant 

elected not to attend the trial. The Court therefore dismissed the third and 

fourth named Claimants’ claim with no order as to costs. 

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

police officers testified on behalf of the Defendant. 

ISSUES 

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

follows: 

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

Claimant with the offence being a gang member and 

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

elected to prosecute the Claimants? 

LAW 

Anti-Gang Act (No. 10 of 2011) 

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

“gang” means a combination of two or more persons, whether formally or 

informally organized, that, through its membership or through an agent, 

engages in any gang related activity. 

“gang member” means a person who belongs to a gang, or a person who 

knowingly acts in the capacity of an agent for or an accessory to, or voluntarily 

associates himself with any gang-related activity, whether in a preparatory, 

executory or concealment phase of any such activity, or a person who 

knowingly performs, aids, or abets any such activity. 

“gang-related activity” means any criminal activity, enterprise, pursuit or 

undertaking in relation to any of the offences listed in the First Schedule 

acquiesced in, or consented or agreed to, or directed, ordered, authorized, 

requested or ratified by any gang member, including a gang leader. 

5. The First Schedule lists gang related offences. Trafficking in a dangerous drug 

or being in possession of a dangerous drug for the purpose of trafficking is 

listed at Item 20 in the First Schedule. 

6. Section 12 (1) of the Anti-Gang Act provides: 

“12. (1) A police officer may arrest without a warrant a person whom he has 

reasonable cause to believe to be a gang member or whom he has reasonable 

cause to believe has committed an offence under this Act.” 

7. Section 13 (1) of the Anti-Gang Act provides: 

“13.(1) Notwithstanding any law to the contrary, a police officer may, without 

a warrant, detain for a period not exceeding seventy-two hours a person whom 

he reasonably suspects of having committed an offence under this Act without 

charging him for the offence.” 

Malicious Prosecution 

8. The essential ingredients of the tort of malicious prosecution are set out in 

Clerk & Lindsell on Tort 20th Edition at paragraph 16:09: 

“In an action for malicious prosecution the claimant must show first that he 

was prosecuted by the Defendant, that is to say that the law was set in motion 

against him on a criminal charge; secondly, that the prosecution was 

determined in his favour; thirdly, that it was without reasonable and probable 

cause; fourthly, that it was malicious. The onus of proving every one of these is 

on the claimant. Evidence of malice of whatever degree cannot be invoked to 

dispense with or diminish the need to establish separately each of the first 

three elements of the tort. 

9. The burden of proving the elements of the tort rests on the Claimant. The 

failure to establish any one or more of the requirements will result in the 

Claimant losing his action for malicious prosecution. In the present case there 

is no dispute in respect of the first and second elements of the tort. 

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

Prosecution upon which their respective claim was premised. 

Reasonable and Probable Cause 

11. The factors and considerations that go to establishing reasonable and 

probable cause under the tort of false imprisonment are substantially the 

same as those which go to prove or disprove reasonable and probable cause 

in an action for malicious prosecution: Irish v Barry (1965) 8 W.I.R. 177 per 

Justice of Appeal Mc Shine at page 186, paragraph E. 

12. The meaning of reasonable and probable cause for a prosecution is set out at 

in Halsbury Laws of England 5th Edition Vol 97 (2010) at paragraph 641 as 

follows: 

“Reasonable and probable cause for a prosecution has been said to be an 

honest belief in the guilt of the accused based on a full conviction, founded 

upon reasonable grounds, of the existence of a state of the circumstances 

which, assuming them to be true, would reasonably lead any ordinarily 

prudent and cautious man, placed in the position of an accuser, to the 

conclusion that the person charged was probably guilty of the crime 

imputed.” 

13. In Glinski v Mc Iver [1962] AC 727 Lord Denning suggested that the test is not 

suitable for the ordinary run of cases. At pages 758 to 759 Lord Denning stated, 

“My Lords, in Hicks v. Faulkner [1878] (8) Q.B.D. 167 Hawkins J. put 

forward a definition of “reasonable and probable cause” which later 

received the approval of this House. He defined it as an “honest belief in 

the guilt of the accused” and proceeded to detail its constituent elements. 

The definition was appropriate enough there. It was, I suspect, tailor-made 

to fit the measurement of that exceptional case. It may fit other outsize 

measurements too. But experience has shown that it does not fit the 

ordinary run of cases. It is a mistake to treat it as a touchstone. It cannot 

serve as a substitute for the rule of law which say that, in order to succeed 

in an action for malicious prosecution, the plaintiff must prove to the 

satisfaction of the judge that, at the time when the charge was made, there 

was an absence of reasonable and probable cause for the prosecution. Let 

me give some of the reasons which show how careful the judge must be 

before he puts to the jury the question: “Did the “Defendant honestly 

believe that the accused was guilty?” 

In the first place, the word “guilty” is apt to be misleading. It suggests that, 

in order to have reasonable and probable cause, a man who brings a 

prosecution, be he a police officer or a private individual, must, at his peril, 

believe in the guilt of the accused. That he must be sure of it, as a jury 

must, before they convict. Whereas in truth he has only to be satisfied 

that there is a proper case to lay before the Court, or in the words of Lord 

Mansfield, that there is a probable cause “to bring the [accused] “to a 

fair and impartial trial”: see Johnstone v. Sutton [1 Term Rep. 493, 547.]. 

After all, he cannot judge whether the witnesses are telling the truth. He 

cannot know what defences the accused may set up. Guilt or innocence is 

for the tribunal and not for him. Test it this way: Suppose he seeks legal 

advice before laying the charge. His counsel can only advise him whether 

the evidence is sufficient to justify a prosecution. He cannot pronounce 

upon guilt or innocence. Nevertheless, the advice of counsel, if honestly 

sought and honestly acted upon, affords a good protection: see Ravenga 

1. Mackintosh [2 B. & C. 693, 697] by Bayley J. So also with a police officer. 

He is concerned to bring to the trial every man who should be put on trial, 

but he is not concerned to convict him. He is no more concerned to convict 

a man than is counsel for the prosecution. He can leave that to the jury. It 

is for them to believe in his guilt, not for the police officer. Were it 

otherwise, it would mean that every acquittal would be a rebuff to the 

police officer. It would be a black mark against him and a hindrance to 

promotion. So much so that he might be tempted to “improve” the 

evidence so as to secure a conviction. No, the truth is that a police officer 

is only concerned to see that there is a case proper to be laid before the 

Court.” (Emphasis added) 

He further echoed at page776 that: 

“The Defendant can claim to be judge not on the real facts but on those 

which he honestly and however erroneously believed; if he acts honestly 

upon fiction, he can claim to be judged on that,” 

14. It is well settled in law that the test as to whether there is reasonable and 

probable cause includes both an objective and a subjective element. 

15. In The Attorney General v Kevin Stuart Civil Appeal No. P162 of 2015 Bereaux 

J.A. stated in reference to the anti – gang legislation – 

“[17] …. It is readily apparent from these provisions that proving gang 

membership in a Court of law is no slam dunk. It requires a careful 

compilation of the evidence showing how the gang is organised, how the 

gang activity is perpetrated through gang members and their respective 

roles in such activity. Evidence at trial must be carefully led to show the 

nexus between the gang, the members and the activity. In a case where 

the gang-related activity relates to narcotics, evidence of actual sales of 

the narcotics is required to prove the gang-related activity. Mere 

surveillance without more may not suffice. It is not enough to simply 

observe the accused making “interactions” with other persons. The 

evidence must be that narcotics were sold by the accused to someone. This 

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

Undercover detection may be necessary. The best evidence would no 

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

of its activities. 

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

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

had a reasonable basis for suspecting that: 

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

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

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

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

agent; 

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

gang, or voluntarily associated himself with the gang-related 

activity (the sale of a narcotic drug) 

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

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

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

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

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

reasonable basis for suspecting the three alleged gang members were 

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

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

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

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

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

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

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

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

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

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

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

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

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

Court to judge the basis of reasonable suspicion. 

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

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

are required….” 

The Objective Test: 

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

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

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

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

reasonable and probable cause for the arrest. 

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

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

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

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

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

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

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

prosecutor is entitled to rely on reasonable hearsay evidence. 

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

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

principles in Halsbury’s as instructive: 

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

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

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

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

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

lawyer, but of a discreet and reasonable man.” 

The Subjective Test: 

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

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

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

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

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

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

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

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

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

however considers that there was an absence of reasonable and probable 

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

malice in charging the Claimants. 

Malice 

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

stated as follows: 

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

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

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

circumstances were such that the prosecution can only be accounted for 

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

I do not think that any particular wrong or indirect motive was proved. It 

is said that the Defendant was hasty and intemperate … He may also have 

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

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

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

shew the presence of any indirect motive …” 

At page 728, Lord Justice Kay stated as follows: 

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

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

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

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

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

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

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

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

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

actuated by malice.” 

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

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

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

at page 174 it was stated that, 

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

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

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

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

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

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

may be wholly unconnected with any uncharitable feelings towards 

anybody.” 

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

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

should think there was want of probable cause might nevertheless think 

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

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

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

the existence of malice.” 

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

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

proof of malice in the criminal context as follows: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

of 2009 at paragraph 26. 

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

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

on malice. She stated at paragraphs 18 and 19: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

respondent’s arrest he conducted further investigations in the Marabella 

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

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

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

other than the proper invocation of the criminal law. 

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

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

fides. 

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

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

in their respective witness statements and their responses in cross- 

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

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

by the Claimants were not expressly denied. 

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

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

Corporal Bernard had engaged several surveillance exercises during 2011 and 

based on his information and observations during the said exercises which 

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

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

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

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

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

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

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

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

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

plastic pockets which contained a green plant like material which resembled 

marijuana. 

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

surveillance exercise with Constable Jeanville at Depot Road and he observed 

that the Claimants were drinking together and there were touching their 

raised glasses. 

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

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

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

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

made in the station diary. 

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

he recorded statements from persons and this information supported his 

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

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

statements subsequent to their respective arrests and they admitted their 

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

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

Claimants were discontinued by the Director of Public Prosecutions. 

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

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

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

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

sell drugs and kill people”. 

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

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

accompanied Corporal Bernard to Cumana Village or Depot road on either 

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

plant-like materials as Bernard had testified. 

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

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

judgment the Court of Appeal considered evidence in relation to certain 

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

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

Constable Jeanville who alleged inter alia that Corporal Bernard had instructed 

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

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

made that Corporal Bernard had falsified a search warrant. 

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

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

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

subsequently set aside. 

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

with the pending charges against Corporal Bernard has persuasive force in 

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

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

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

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

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

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

preliminary inquiry and that Corporal Bernard had been committed to stand 

trial. 

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

witness whose evidence was characterized by a degree of candour and 

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

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

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

contention that Constable Jeanville would fabricate his evidence. 

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

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

truth. His surveillance evidence was materially contradicted by Constable 

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

Constable Jeanville which were referenced in the Ferguson decision, 

involved an element of dishonesty and corruption and this information was 

relevant when one assessed his credit worthiness. The Court rejected 

Corporal Bernard’s evidence that prior surveillance exercises had been 

conducted and formed the view that there existed no reasonable and 

probable cause to arrest to the Claimants and to charge them under the Anti- 

Gang legislation. The Court also noted that the Director of Public 

Prosecutions discontinued the charges against the Claimants. 

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

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

but he never found anything illegal on them. Based on the aforementioned 

circumstance it should have dawned upon Corporal Bernard that the 

information he had received from informants in relation to the Claimants 

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

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

adduced the Court had no hesitation in concluding that Corporal Bernard’s 

evidence of surveillance over August 2011 was fabricated and he 

consequently operated under a motive which was not predominantly 

premised on a desire to secure the ends of justice. In the absence of 

surveillance evidence and given the history as to the tenuous nature of his 

informants’ information , Corporal Bernard could not have had an honest 

belief in the guilt of the Claimants and malice can properly be inferred based 

on his alarming conduct and patent dishonesty in this case. The Court also 

adopted the view that Corporal Bernard’s evidence as to information from 

informants was insufficient to justify the laying of charges against the 

Claimants. 

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

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

activity and further stated that he recorded these statements from 

informants. 

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

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

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

of this alleged reply was countersigned by the First Claimant in the station 

diary. As outlined previously the Court did not view Corporal Bernard as a 

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

was vague and could not amount to an admission for the purposes of the 

Act. The Court, for example, wondered what “gang” referred to. Did the 

phrase refer to a CEPEP gang? Surely there should have been further 

questions to clarify any uncertainty. 

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

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

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

I staying by myself because Foxy only want we to sell drugs and shoot 

people”. 

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

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

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

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

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

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

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

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

prudent complainant may have explored the option of getting valuable 

evidence from a “former gang member”. Ultimately the Court formed the 

view that the said alleged statement could not amount to an admission 

which could stand as the foundation upon which a charge under the Act 

could have been premised. 

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

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

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

reasonable suspicion. Each circumstance would however vary and would be 

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

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

gang member may carry greater weight then information from someone 

unconnected with the gang in question. 

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

that there is no credible evidence which demonstrated a nexus between the 

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

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

any other person. 

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

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

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

type of behaviour erodes public trust and confidence in the Police Service 

and violates the rule of law. When a Court of superior jurisdiction finds as a 

fact that a police officer has lied and fabricated evidence, such a 

circumstance must not be disregarded and the Commissioner of Police, upon 

being notified of the Court’s decision, should engage with dispatch the 

process outlined under section 123A of the 1976 Republican Constitution of 

Trinidad and Tobago (“the 1976 Constitution”) to exercise disciplinary 

control over errant officers in furtherance of his mandate to manage the 

service . 

THE COMMISSIONER’S AUHORITY 

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

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

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

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

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

regarding the disciplining of police officers. 

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

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

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

such findings. 

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

the Commissioner of Police and the Deputy Commissioners, was transferred 

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

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

police service and of the officers under his command. 

Constitutional Amendment: 

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

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

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

complete power to manage the Police Service and is required to 

ensure that the human, financial and material resources available 

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

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

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

Service, other than an officer referred to in section 

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

promotion and to confirm appointments; 

1. transfer any police officer; and 
2. remove from office and exercise disciplinary control over 

police officers, other than an officer referred to in section 

123(1)(a). 

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

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

above the rank of Superintendent acting under and in accordance 

with his general or special instructions. 

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

Commissioner of Police shall act in accordance with the Police 

Service Act and the Regulations made thereunder. 

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

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

Commissioner of Police in disciplining police officers. 

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

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

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

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

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

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

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

constitutional monarchy. Section 98 established a Police Service Commission 

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

Section 99 of the 1962 Constitution: 

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

police force (including appointments on promotion and transfer 

and the confirmation of appointments) and to remove and exercise 

disciplinary control over persons holding or acting in such offices 

shall vest in the Police Service Commission: provided that the 

commission may, with the approval of the Prime Minister and 

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

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

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

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

mean the following: 

Page 384-385: 

To “remove” from office in the police force in the context of section 

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

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

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

whatever euphemism the termination may be described, as, for 

example, being required to accept early retirement… 

In their Lordships’ view there are overwhelming reasons why 

“remove” in the context of “to remove and exercise disciplinary 

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

corresponding sections relating to the other public services must 

be understood as meaning “remove for reasonable cause” of which 

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

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

otherwise would frustrate the whole constitutional purpose of 

chapter VIII of the Constitution which their Lordships have 

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

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

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

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

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

treatment. 

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

Police Service Commission regarding “removing and exercising disciplinary 

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

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

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

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

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

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

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

381 per Lord Diplock). 

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

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

and Regulations made under it. 

Steps in disciplinary procedure: 

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

makes provision for the disciplinary procedure to be followed. 

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

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

proceedings in accordance with the procedure in Part XIII. 

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

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

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

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

heard: Regulation 153. 

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

Police the discretion to establish disciplinary tribunals, in accordance with 

Section 123A(3) of the 1976 Constitution. 

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

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

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

of the 1976 Constitution: Regulation 157 (3). 

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

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

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

him: Regulation 169. 

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

by the Commissioner of Police in disciplinary proceedings brought against an 

officer in respect of a disciplinary offence: 

1. dismissal, that is, termination of appointment; 
2. reduction in an office, that is, removal to another grade with an 

immediate reduction in pay; 

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

remuneration to a lower point on the scale of remuneration attached 

to the particular office; 

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

the next increment is due, with corresponding postponements in 

subsequent years; 

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

increment otherwise due; 

1. fine; 
2. reprimand. 

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

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

Commissioner of Police: Regulation 173(2). 

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

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

Regulations the Commissioner of Police must firstly establish a disciplinary 

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

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

officer. 

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

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

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

undesirable officers from the service, legislative intervention should be 

contemplated to treat with Court rulings which find that misconduct 

occurred, as being prima facie proof of misconduct thereby imposing upon 

the officer the burden of establishing that his service should not be 

terminated. Officers who abuse the authority vested in them should be 

made to bear the burden of satisfying the awards of damages and their 

suitability to continue holding office has to be considered. 

DAMAGES: 

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

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

prosecution. 

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

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

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

damages for the tort of malicious prosecution as follows: 

1. injury to reputation; to character, standing and fame. 
2. injury to feelings; for indignity, disgrace and humiliation caused and 

suffered. 

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

imprisonment. 

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

award for aggravated damages are to be considered. 

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

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

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

reputation.” 

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

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

aggravated damages: 

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

These damages are intended to be compensatory and include what is 

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

provide compensation for the mental suffering inflicted on the plaintiff as 

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

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

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

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

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

aggravated damages I think that practice should be discontinued.”  

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

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

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

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

and matters of that sort.” 

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

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

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

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

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

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

damage occasions.” 

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

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

1. (2004) at paragraph 14-064: 

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

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

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

as dishonesty or sexual misconduct will cause more damage than 

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

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

increased if the prosecution received wide publicity.” 

And 

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

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

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

in his ‘loss of reputation’ damages.” 

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

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

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

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

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

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

into account and an appropriate figure arrived at”. 

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

Damages as follows: 

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

newspapers, 

1. The charges alleged that the Claimants were gang members, 
2. The Claimants were associating for illegal purposes, 
3. The Claimants were involved in criminal activities that undermined the 

State of the Republic of Trinidad and Tobago. 

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

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

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

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

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

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

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

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

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

charges were published on the daily newspapers but that circumstance was 

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

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

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

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

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

First Claimant: 

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

Fifth Claimant: 

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

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

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

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

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

discretion to grant. 

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

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

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

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

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

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

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

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

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

character and reputation. 

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

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

Second Claimant has no previous convictions so he would reasonably suffer 

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

demonstrate same. 

Aggravating factors: 

81. The following are aggravating factors: 
82. The Claimants were incarcerated for sixty-seven (67) days; 
83. The Claimants’ suffering came as a result of unreliable and fabricated 

surveillance evidence of Corporal Bernard. 

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

into consideration: 

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

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

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

general damages for malicious prosecution. The average daily rate was 

$1,176.00. 

1. Glen Baptiste v The Attorney General No. 1842 of 1997 – wherein the 

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

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

$1,071.00. 

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

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

general damages (including aggravated damages) were awarded in the 

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

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

2002/ HC 3795A of 2002 – wherein the claimant was detained for 2 1⁄2 

months and awarded general damages (including aggravated 

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

$1,333.00. 

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

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

general damages (including aggravated damages) in the sum of 

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

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

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

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

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

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

claimant was the loss of liberty without justification. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Special Damages: 

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

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

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

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

Cream Ltd Civil Appeal 20 of 2002 stated as follows: 

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

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

64 Law Times 177: 

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

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

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

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

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

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

Exemplary damages: 

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

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

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

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

categories: 

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

servants of government; 

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

and 

1. where it was statutorily authorised. 
2. This Court notes the surrounding circumstances around which the detention 

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

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

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

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

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

endanger the public safety”. 

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

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

following:  

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

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

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

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

passage of draconian legislation such as EPR (Emergency Powers 

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

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

and collective peace. These are political decisions with human rights 

dimensions…” 

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

uncommon for police officers to arrest without warrant individuals who they 

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

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

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

acts by police officers where their motives were not for enforcing the 

criminal law or a desire to secure the ends of justice. 

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

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

The Courts have consistently imposed orders for exemplary damages so as 

to deter future breaches of authority however the said orders have proved 

futile. So long as awards of damages bear no impact upon the pockets of the 

offending officers, breaches of authority will continue unabated. Awards for 

exemplary damages neither punish nor deter the actual offender and surely 

do not teach the errant police officers or other servants of the State who 

acted arbitrarily or unconstitutionally that the commission of a tort does not 

pay. Persons should be held to account, their jobs should be placed on the 

line and their pockets should bear the financial burden imposed by virtue of  

their unacceptable conduct. A no tolerance approach to lawlessness in all its 

manifestations must be mandatory. Many officers accused of serious crimes 

which are pending before the courts are placed on suspension and they 

continue to receive remuneration . The payment of base salary or part 

thereof when officers are on suspension should also be immediately 

reviewed. This Republic cannot afford to have police officers with pending 

charges being placed, effectively, on a paid vacation. 

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

where an award for exemplary damages will be useful. 

Conclusion: 

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

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

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

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

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

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

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

Commissioner of Police. 

___________________ 

Frank Seepersad 

Judge