IN THE COURT OF APPEAL. Between SANDRA JUMAN. And THE ATTORNEY GENERAL OF TRINIDAD TOBAGO

Transcription

1 THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No. 22 of 2009 Between SANDRA JUMAN Appellant And THE ATTORNEY GENERAL OF TRINIDAD TOBAGO Respondent PANEL: A. Mendonça, J.A. G. Smith, J.A. M. Rajnauth-Lee, J.A. APPEARANCES: Mr. Douglas Mendes S.C. leading Mr. Ted Roopnarine instructed by Mr. Edwin Roopnarine for the Appellant Mr. Neil Byam for the Respondent Dated: 20th December, 2013 **************************************** Page 1 of 11

2 REASONS Delivered by M. Rajnauth-Lee, J.A. INTRODUCTION 1. The appellant, Sandra Juman, was charged along with other persons with possession of two firearms and ammunition on the 1 st October, The charges arose out of a search conducted by P.C. Abbott #11999 and other police officers of premises situate at #6 Jagessar Trace, Pond Street, La Romain ( the premises ) on the 1 st October, On the 10 th August, 2000, the charges were dismissed. The appellant commenced proceedings for malicious prosecution and trespass to her apartment. The trial judge granted leave to the appellant to amend the statement of claim to include a claim for damages for false imprisonment. The trial judge found that that there was reasonable and probable cause for the laying of the charges against the appellant and dismissed the claim for malicious prosecution. He also dismissed the claim for trespass. The trial judge however found that the appellant s arrest was not lawful and that her subsequent detention amounted to false imprisonment. He therefore awarded damages in the sum of $17, with interest at the rate of 6% per annum. The appellant appealed the judge s decision dismissing her claim for malicious prosecution. She also appealed against the rate of interest applied to the award of damages. The appellant obtained leave to withdraw that part of the appeal relating to the rate of interest. The respondent (and P.C. Abbott) appealed the judge s findings of unlawful arrest and false imprisonment, but were granted leave to withdraw that appeal The key issues in the appeal were whether there was reasonable and probable cause to charge the appellant and whether P.C. Abbott was motivated by malice. The appellant s main arguments were that (a) there was no evidence before or during her arrest and prosecution that (i) 1 Civil Appeal No. 21 of 2009 was withdrawn with the leave of the Court of Appeal on the 23 rd May, Page 2 of 11

3 she was in control of the area where the firearms and ammunition were found and (ii) she had control, possession or knowledge of the existence of the firearms and ammunition; (b) that P.C. Abbott had obtained the search warrant on the information of an informant that Steven Seebaran had arms and ammunition on the premises and Steven Seebaran had admitted at the time of the search that the firearms and ammunition were his. It was further contended on behalf of the appellant that once Steven Seebaran pleaded guilty to the charges, there could not be reasonable and probable cause to continue to prosecute the appellant. 3. On the 23 rd May, 2013, we dismissed the appeal giving brief oral reasons. In summary, we were of the view that P.C. Abbott, the charging officer, had reasonable and probable cause to lay the charges against the appellant, even though the search warrant was directed to the premises of Steve Seebaran, and at the time of the search, Steve Seebaran had admitted to the police officer that the guns and ammunition were his. Further, in our view, it was open to P.C. Abbott to continue the prosecution even after Steve Seebaran had pleaded guilty to the charges. We were of the view that the provisions of the Firearms Act recognise that there could be more than one person in possession or control of a firearm. In any event, in our opinion, P.C. Abbott was not motivated by malice. The appeal was therefore dismissed with no order as to costs. We indicated that we would amplify our oral reasons if necessary, and we consider that this is an appropriate matter to give a written decision. BACKGROUND FACTS 4. On the 30 th September, 1998, P.C. Abbott obtained a warrant to conduct a search at the premises of Steve Seebaran of #6 Jagessar Trace, Pond Street, La Romain. As mentioned earlier, the warrant was obtained as a result of information received by P.C. Abbott that one Steve Seebaran had arms and ammunition at the premises. 5. P.C. Abbott, in the company of other officers, executed the search warrant at the premises on the 1 st October, The premises comprised a two storey dwelling with a single outside staircase to the front. At the time of the search, there were six persons including Steve Seebaran and the appellant on the premises. After the premises were searched, two homemade shot-guns Page 3 of 11

4 and a shot-gun cartridge were found in a bag next to a couch in the living room downstairs. The bag was not hidden from view. Steve Seebaran stated that the shot-guns and the ammunition belonged to him. 6. All six persons were arrested and taken to the San Fernando Police Station overnight. They were jointly charged with being in possession of two shot-guns and a shot-gun cartridge contrary to section 6(1) of the Firearms Act Chap. 16:01. They were taken before a magistrate at the San Fernando Magistrates Court on the 2 nd October, 1998 when the appellant was granted bail. On that date, Steve Seebaran pleaded guilty to the offences. Thereafter, the appellant appeared before the San Fernando Magistrates' Court on various dates from the 2 nd October, 1998 to the 10 th August, The presiding magistrate heard the evidence and on the 10 th August, 2000, he found the appellant not guilty and dismissed the charges against her. ANALYSIS Malicious prosecution 7. The essential ingredients of the tort of malicious prosecution are set out in Clerk & Lindsell on Torts (20 th Ed) at page 1070, para. 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. 8. It is not in dispute that the first two ingredients were satisfied in this matter: the law was set in motion against the appellant on criminal charges and the charges were determined in her favour. The key issues which remained for consideration therefore were whether P.C. Abbott Page 4 of 11

5 had reasonable and probable cause for instituting or carrying on the prosecution of the appellant and whether he was motivated by malice. Reasonable and Probable Cause 9. Lord Radcliffe in the case of Glinski v McIver [1962] A.C. 726 stated that the ultimate question was whether the prosecutor was motivated by what presented itself to him as reasonable and probable cause. Mere belief in the truth of the charge would not protect a prosecutor if the circumstances would not have led an ordinarily prudent and cautious man to conclude that the person charged was probably guilty. 2 In Glinski, Lord Denning observed that the police officer does not have to believe in the guilt of the accused. He has only to be satisfied that there is a proper case to go before the court. 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. 3 Further, in Glinski, Lord Devlin observed that the prosecutor does not have to believe in the probability of obtaining a conviction. He is only concerned with the question whether there is a case fit to be tried. 4 Possession under the Firearms Act Chap. 16: The appellant was charged together with the five other persons with having in their possession two firearms and ammunition, they not being exempted under section 7 of the Firearms Act, and they not being the holders of a Firearm User s License contrary to section 6(1) of the Firearms Act. Section 6(1) provides that subject to section 7, a person may purchase, acquire or have in his possession a firearm or ammunition only if he holds a Firearm User s Licence with respect to such firearm or ammunition. Section 7 set out categories of persons exempted from the provisions of section 6(1). 2 Page Page Page 857. Page 5 of 11

6 11. Section 30 (2) of the Firearms Act provides inter alia that where a firearm or ammunition is found on the premises [searched pursuant to a search warrant obtained under section 30(1)], the police officer making the search may arrest without warrant any person found on the premises... whom he has reason to believe to be guilty of an offence. 12. In addition, proof of possession in the context of section 6(1) is the subject of a special provision in the Firearms Act. Section 5(2) of the Firearms Act provides that in any prosecution for an offence under this Part... [which applies to section 6(1)] a person who is proved to have had in his possession or under his control anything whatsoever in or on which is found any firearm or ammunition shall, until the contrary is proved, be deemed to have been in possession of such firearm or ammunition The Court of Appeal in the case of James & Wong v O Connor (unreported Mag. App. No. 274 of 1973) considered the provisions of sections 5(2) and 6(1) of the Firearms Act and relied on the oft-cited case of Warner v Metropolitan Police Commissioner [1969] 2 A.C. 256 (a drugs case). They considered whether Parliament intended to exclude mens rea as an element of the offence created under section 6(1) in circumstances where a person is deemed to be in possession under section 5(2). Hyatali C.J. observed at page 8: It would therefore follow that a person must have knowledge that he has possession or control of the thing in which or on which the offending article is found before he is deemed to have possession of that offending article; and that when he is so deemed he could rebut that he was in possession thereof by showing that he did not know or had no reason to know or suspect that the offending article was in or on the thing referred to. Emphasis supplied. 14. We have considered the relevant evidence which was before the trial judge. P.C. Abbott went to the premises with information that Steve Seebaran had arms and ammunition at the premises, he not being a licensed holder. When P.C. Abbott called out to Steve Seebaran, he 5 Section 5(2) of the Firearms Act has been repealed and replaced by section 5 of the Firearms (Amendment) Act, 2011 which provides inter alia that if a person is found with any firearm or ammunition or occupies any building or room in which any firearm or ammunition is found, he shall be deemed to be in possession of such firearm or ammunition in the absence of lawful excuse, the proof of which lies on the person. In the circumstances of this case, we have not taken the amendment into consideration. Page 6 of 11

7 emerged from the downstairs portion of the premises along with the appellant and another person. The other three persons emerged from the upstairs portion of the premises. P.C. Abbott enquired of these persons whether they lived on the premises and all of them said yes. After the search was conducted, a bag, containing what looked to P.C. Abbott to be two home-made shotguns and a shot-gun cartridge, was found next a couch in the living room downstairs. The bag was not hidden from view. After the six persons were cautioned, they remained silent except for Steve Seebaran who said that the guns and cartridge were his. 15. In his witness statement, P.C. Abbott said inter alia that he found the appellant in occupation of the premises and that she admitted that she lived in the premises. Further, his informant had not led him to believe that there were two distinct and independent residences at the premises and what he saw on the premises confirmed that the upstairs and downstairs portions comprised a single residence. There was no kitchen downstairs, but there was one upstairs. There was likewise no dining area downstairs, but there was one upstairs. In addition, none of the persons he met at the premises said that there were two different residences at that address. None claimed to be exclusively from the upstairs portion and none claimed to be exclusively from the downstairs portion. 16. On the other hand, the appellant testified before the trial judge that the premises were separated into two distinct apartments and should be considered two separate apartments. She contended that she resided in the upstairs apartment together with two of the persons charged. 17. After hearing the evidence, the trial judge found as a fact that the downstairs and upstairs portions of the premises constituted one household. He observed that the word apartment and indeed the house had been described by P.C. Abbott as two separate apartments. The trial judge noted, however, that P.C. Abbott nowhere in his testimony alleged that they were two separate households. The trial judge observed: What he obviously means is that there were living accommodations upstairs as well as downstairs In addition, the trial judge went on to make some observations about the culture of Trinidad and Tobago: 6 See page 6 of the judgment of the trial judge. Page 7 of 11

8 Those of us who appreciate the subtleties that underpin the culture of Trinidad and Tobago, especially persons of Indian descent, would have no difficulty in understanding that all the persons living downstairs and upstairs lived together as one family. In any event, I accept that the Plaintiff was in the downstairs apartment where and when the guns and ammunition were found and for that reason PC Abbott could have perceived that she may have been in possession of the arms and ammunition found The trial judge also observed that although Inrage Ramsaroop, the appellant s mother who lived in the same house, gave a witness statement in the matter, and was present in court during the trial before him, she was not called as a witness for the appellant. According to the trial judge, in those circumstances, it was left up to the court to draw such inferences as it saw fit. Indeed the trial judge commented that this action of Attorney for the appellant in not calling that witness strengthened his finding that both apartments constituted one household. Indeed, the trial judge found that the appellant s Attorney was in breach of Rule 29.9(2) of the Civil Proceedings Rules, 1998, as amended in that, although the witness statement of Inrage Ramsaroop was served, no notice was given by the appellant s Attorney that he did not intend to call her as a witness In addition, we have observed that P.C. Abbott at paragraph 8(ii) of his witness statement stated that his understanding of the law was that under section 6(1) of the Firearms Act, it was only necessary to prove that a person was an occupant of the premises where the arms or ammunition were found. He was of the view that the court could convict the appellant on the evidence that he had obtained. 21. Having regard to the evidence of P.C. Abbott, which the trial judge accepted, we are of the view that the police officer held an honest belief that there was a case fit to be tried, in respect of the appellant, and that this belief was reasonably held. Given all the circumstances of the case, it was reasonable for P.C. Abbott to believe (i) that the appellant was in control of the area where the bag containing the firearms and ammunition was found and (ii) that the appellant 7 See pages 6-7 of the judgment. 8 See page 7 of the trial judge s judgment. Page 8 of 11

9 had the requisite knowledge to be in possession or control of the bag in which the firearms and ammunition were found. We have also considered Mr. Mendes argument that the police officer must have evidence that the appellant had control, possession or knowledge of the existence of the firearms and ammunition. In our view, that argument cannot be sustained having regard to the law cited above. 22. In addition, the trial judge indicated that he could not find that the warrant having been directed to the premises of Steve Seebaran and/or Steve Seebaran s subsequent admission (that the firearms and ammunitions belonged to him) were sufficient to show that P.C. Abbott did not act reasonably in arresting the other persons who were present at the premises when he found the illegal articles. 9 We agree with the trial judge. By virtue of section 30(2) of the Firearms Act, where a firearm or ammunition is found on the premises [searched pursuant to a search warrant obtained under section 30(1)], the police officer making the search may arrest without warrant any person found on the premises whom he has reason to believe to be guilty of an offence. Further, there is nothing in the Firearms Act to suggest that persons cannot be in possession jointly of a firearm and cannot be jointly charged for possession of a firearm. In the circumstances of this case, we are of the view that the warrant being directed to the premises of Steve Seebaran and his admission that the firearms and ammunition were his are insufficient to prove an absence of reasonable and probable cause on the part of P.C. Abbott. 23. Mr. Mendes S.C. further submitted on behalf of the appellant that once Steve Seebaran pleaded guilty to the charges, there could not be reasonable and probable cause to continue to prosecute the appellant. We do not agree. We are of the view that the provisions of the Firearms Act recognise that more than one person can be in possession or control of a firearm. Accordingly and in the circumstances of this case, it was open to P.C. Abbott to form the view that this was a fit case for the prosecution to continue against the appellant, even after Steve Seebaran had pleaded guilty. The fact that one person pleads guilty does not rule out other persons being guilty as well. In the circumstances, Steve Seebaran s subsequent guilty plea is insufficient to prove the absence of reasonable and probable cause on the part of P.C. Abbott. 24. It has also been submitted before us that the appellant s visual impairment led to the 9 See page 7 of the trial judge s judgment. Page 9 of 11

10 inescapable conclusion that the police officer had no reasonable and probable cause to charge her. We do not agree. The principles as laid out by the Court of Appeal in the case of James & Wong v O Connor (supra) are that a person must have knowledge that he has possession or control of the thing in which or on which the offending article is found before he is deemed to have possession of that offending article When he is so deemed, he can rebut that he was in possession by showing that he did not know or had no reason to know or suspect that the offending article was in or on the thing referred to. We have borne in mind that the bag was found in a common area of the premises, next to a couch and was not hidden from view. In our opinion, the fact that the appellant is visually impaired does not inevitably lead to the conclusion that she did not have knowledge that she had possession or control of the bag in which the firearms and ammunition were found. It is for the presiding magistrate and not the police officer to decide whether the appellant knew or had reason to know or suspect that the arms and ammunition were in the bag. Malice 25. We move on to the issue of malice. Having regard to our conclusions on the issue of reasonable and probable cause, the question of malice did not arise. We nevertheless considered it. Malice must be proved by showing that the police officer was motivated by spite, ill-will or indirect or improper motives. 10 It is said that malice may be inferred from an absence of reasonable and probable cause but this is not so in every case. 11 Even if there is want of reasonable and probable cause, a judge might nevertheless think that the police officer acted honestly and without ill-will, or without any other motive or desire than to do what he bona fide believed to be right in the interests of justice: Hicks v Faulkner [1987] 8 Q.B.D. 167 at page We have considered what P.C. Abbott said at paragraph 8 (ii) of his witness statement as 10 Cecil Kennedy v Donna Morris and the Attorney General of Trinidad and Tobago (unreported Civ. App. No. 87 of 2004). 11 See Trevor Williamson v The Attorney General of Trinidad and Tobago (unreported Civ. App. No. 140 of 2007) where there was a lack of reasonable and probable cause but the Court of Appeal found no evidence of malice. Page 10 of 11

11 to his understanding of the law. He believed that he had enough evidence to prosecute the appellant because of the circumstances in which he found the arms and ammunition and because of his understanding of the provisions of the Firearms Act. 12 We are of the view that nothing has come out in the cross-examination of P.C. Abbott that would cast any doubt on what is stated in that paragraph. 27. We are therefore of the view that no improper motive can be inferred in the circumstances of this case, and hence the prosecution has not been malicious. DISPOSITION 28. The appeal is dismissed with no order as to costs.... A. Mendonça Justice of Appeal... G. Smith Justice of Appeal... M. Rajnauth-Lee Justice of Appeal 12 See paragraph 20 of this judgment. Page 11 of 11