THE REPUBLIC OF TRINIDAD AND TOBAGO\u00a0<\/b><\/p>\n
IN THE HIGH COURT OF JUSTICE\u00a0<\/b><\/p>\n
San Fernando\u00a0<\/b><\/p>\n
Claim No. CV2015-03383\u00a0<\/b><\/p>\n
BETWEEN\u00a0<\/span><\/p>\n TREVOR KING\u00a0<\/b><\/p>\n RENO SAMPSON\u00a0<\/b><\/p>\n RON SAMPSON\u00a0<\/b><\/p>\n KARRELL PAVY\u00a0<\/b><\/p>\n GARFIELD JOSEPH\u00a0<\/b><\/p>\n Claimant\u00a0<\/span><\/p>\n AND\u00a0<\/span><\/p>\n THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO\u00a0<\/b><\/p>\n Defendant\u00a0<\/span><\/p>\n Before the Honourable Mr. Justice Frank Seepersad\u00a0<\/b><\/p>\n Date of Delivery: <\/b>October 29, 2019.\u00a0<\/span><\/p>\n Appearances:\u00a0<\/b><\/p>\n law for the Claimants.\u00a0<\/span><\/p>\n Kelisha Bello Attorneys-at-law for the Defendant.\u00a0<\/span><\/p>\n \u00a0<\/b><\/p>\n DECISION\u00a0<\/b><\/p>\n prosecution. The Claimants were arrested during the state of emergency in\u00a0<\/span><\/p>\n 2011 on the charge that they were gang members pursuant to the provisions\u00a0<\/span><\/p>\n of the Anti-Gang Act of 2011.\u00a0<\/span><\/p>\n third named Claimant filed no evidence in support of his case and the fourth\u00a0<\/span><\/p>\n named Claimant whose claim continued after his death by the substitution of\u00a0<\/span><\/p>\n his mother, also adduced no evidence at the trial as the substituted Claimant\u00a0<\/span><\/p>\n elected not to attend the trial. The Court therefore dismissed the third and\u00a0<\/span><\/p>\n fourth named Claimants\u2019 claim with no order as to costs.\u00a0<\/span><\/p>\n police officers testified on behalf of the Defendant.\u00a0<\/span><\/p>\n ISSUES\u00a0<\/b><\/p>\n follows:\u00a0<\/span><\/p>\n (i) Whether there was reasonable and probable cause to charge each\u00a0<\/span><\/p>\n Claimant with the offence being a gang member and\u00a0<\/span><\/p>\n (ii) Whether Police Corporal Bernard was motivated by malice when he\u00a0<\/span><\/p>\n elected to prosecute the Claimants?\u00a0<\/span><\/p>\n LAW\u00a0<\/b><\/p>\n Anti-Gang Act (No. 10 of 2011)\u00a0<\/span><\/p>\n \u201cgang\u201d means a combination of two or more persons, whether formally or\u00a0<\/span><\/i><\/p>\n informally organized, that, through its membership or through an agent,\u00a0<\/span><\/i><\/p>\n engages in any gang related activity.\u00a0<\/span><\/i><\/p>\n \u201cgang member\u201d means a person who belongs to a gang, or a person who\u00a0<\/span><\/i><\/p>\n knowingly acts in the capacity of an agent for or an accessory to, or voluntarily\u00a0<\/span><\/i><\/p>\n associates himself with any gang-related activity, whether in a preparatory,\u00a0<\/span><\/i><\/p>\n executory or concealment phase of any such activity, or a person who\u00a0<\/span><\/i><\/p>\n knowingly performs, aids, or abets any such activity.\u00a0<\/span><\/i><\/p>\n \u201cgang-related activity\u201d means any criminal activity, enterprise, pursuit or\u00a0<\/span><\/i><\/p>\n undertaking in relation to any of the offences listed in the First Schedule\u00a0<\/span><\/i><\/p>\n acquiesced in, or consented or agreed to, or directed, ordered, authorized,\u00a0<\/span><\/i><\/p>\n requested or ratified by any gang member, including a gang leader.\u00a0<\/span><\/i><\/p>\n or being in possession of a dangerous drug for the purpose of trafficking is\u00a0<\/span><\/p>\n listed at Item 20 in the First Schedule.\u00a0<\/span><\/p>\n \u201c12. (1) A police officer may arrest without a warrant a person whom he has\u00a0<\/span><\/i><\/p>\n reasonable cause to believe to be a gang member or whom he has reasonable\u00a0<\/span><\/i><\/p>\n cause to believe has committed an offence under this Act.\u201d\u00a0<\/span><\/i><\/p>\n \u201c13.(1) Notwithstanding any law to the contrary, a police officer may, without\u00a0<\/span><\/i><\/p>\n a warrant, detain for a period not exceeding seventy-two hours a person whom\u00a0<\/span><\/i><\/p>\n he reasonably suspects of having committed an offence under this Act without\u00a0<\/span><\/i><\/p>\n charging him for the offence.\u201d\u00a0<\/span><\/i><\/p>\n Malicious Prosecution\u00a0<\/b><\/p>\n Clerk & Lindsell on Tort <\/b>20th Edition at paragraph 16:09:\u00a0<\/span><\/p>\n \u201cIn an action for malicious prosecution the claimant must show first that he\u00a0<\/span><\/i><\/p>\n was prosecuted by the Defendant, that is to say that the law was set in motion\u00a0<\/span><\/i><\/p>\n against him on a criminal charge; secondly, that the prosecution was\u00a0<\/span><\/i><\/p>\n determined in his favour; thirdly, that it was without reasonable and probable\u00a0<\/span><\/i><\/p>\n cause; fourthly, that it was malicious. The onus of proving every one of these is\u00a0<\/span><\/i><\/p>\n on the claimant. Evidence of malice of whatever degree cannot be invoked to\u00a0<\/span><\/i><\/p>\n dispense with or diminish the need to establish separately each of the first\u00a0<\/span><\/i><\/p>\n three elements of the tort.\u00a0<\/span><\/i><\/p>\n failure to establish any one or more of the requirements will result in the\u00a0<\/span><\/p>\n Claimant losing his action for malicious prosecution. In the present case there\u00a0<\/span><\/p>\n is no dispute in respect of the first and second elements of the tort.\u00a0<\/span><\/p>\n Prosecution upon which their respective claim was premised.\u00a0<\/span><\/p>\n Reasonable and Probable Cause\u00a0<\/b><\/p>\n probable cause under the tort of false imprisonment are substantially the\u00a0<\/span><\/p>\n same as those which go to prove or disprove reasonable and probable cause\u00a0<\/span><\/p>\n in an action for malicious prosecution: <\/span>Irish v Barry <\/b>(1965) 8 W.I.R. 177 per\u00a0<\/span><\/p>\n Justice of Appeal Mc Shine at page 186, paragraph E.\u00a0<\/span><\/p>\n in <\/span>Halsbury Laws of England <\/b>5th Edition Vol 97 (2010) at paragraph 641 as\u00a0<\/span><\/p>\n follows:\u00a0<\/span><\/p>\n \u201cReasonable and probable cause for a prosecution has been said to be an\u00a0<\/span><\/i><\/p>\n honest belief in the guilt of the accused based on a full conviction, founded\u00a0<\/span><\/i><\/p>\n upon reasonable grounds, of the existence of a state of the circumstances\u00a0<\/span><\/i><\/p>\n which, assuming them to be true, would reasonably lead any ordinarily\u00a0<\/span><\/i><\/p>\n prudent and cautious man, placed in the position of an accuser, to the\u00a0<\/span><\/i><\/p>\n conclusion that the person charged was probably guilty of the crime\u00a0<\/span><\/i><\/p>\n imputed.\u201d\u00a0<\/span><\/i><\/p>\n suitable for the ordinary run of cases. At pages 758 to 759 Lord Denning stated,\u00a0<\/span><\/p>\n \u201cMy Lords, in <\/span><\/i>\n
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