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THE REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
No. CV 2018-01996
BETWEEN
LEONARD WINOC SMITH
Claimant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
Date of Delivery: 6 May 2020
Before The Honourable Madam Justice Margaret Y Mohammed
Appearances:
Ms Nera Narine Attorney at law for the Claimant.
Ms Ronnelle Hinds instructed by Ms Kendra Mark Attorneys at law for the Defendant.
JUDGMENT
1. One of the duties of a police officer is to conduct investigations when a report of any
criminal activity is made to him. During the conduct of the investigation, the police
officer is required to conduct surveillance, interview persons and execute search
warrants. The law permits the police officer where he has reasonable and probable
cause to detain a person whom he suspects has committed a crime for a reasonable
period while the investigation is being conducted. In the instant case, the Claimant
alleges that he was detained by the police without reasonable and probable cause.
2. The Claimant is a law clerk who works in San Fernando. On 7 October 2016, the
Claimant discovered that his name was called in a case book extract at the San
Fernando Magistrate’s Court. The Claimant contacted his Attorneys at law who
advised him to visit the Fraud Squad Office San Fernando (“the Fraud Squad Office”).
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3. On 17 October 2016, the Claimant together with his Attorneys at law visited the Fraud
Squad Office where he met Acting Police Corporal Khalil Hosein Regimental Number
16659 (“Cpl Hosein”) and Acting Police Sergeant Badree Regimental Number 14628
(“Cpl Badree”). The Claimant stated that he informed the officers that his name was
called in the case sheet extract at the San Fernando Magistrates Court of which he
had no knowledge and he requested information regarding the matter.
4. At around 11:05 am on the same day the Claimant was interviewed by the said officers
for approximately three (3) hours after which he had to wait for the Justice of the
Peace to sign a warrant to search his house. On the said day, his house was searched
in his and his wife’s presence but nothing illegal was found.
5. At around 4:45 pm the Claimant and police officers returned to the San Fernando
Police Station where he was informed by Cpl Hosein that they were awaiting
instructions from the DPP on whether to charge him. He was then taken to a cell and
kept there at the said station.
6. On the next day, 18 October 2016, the Claimant was handcuffed and taken out the cell
and placed in an office to meet with his Attorneys at law at 3:00 pm. He returned to
the said cell and was later released at 5:20 pm. The Claimant was not charged for any
offence and he claims that he was wrongfully arrested and detained by the said
officers.
7. As a result of these events, the Claimant asserted that he was bewildered and
shocked. He had no previous convictions, he did not understand the chain of events
and was only trying to clear his name. The Claimant stated that he suffered loss and
damages. He was physically and mentally affected and felt embarrassed, humiliated
and he was unable to carry out his job as a law clerk.
8. Based on the aforesaid facts the Claimant seeks damages for wrongful imprisonment;
aggravated and/or exemplary damages; interest and costs.
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9. The Defendant denied the assertions made by the Claimant. The Defendant’s position
was that the Claimant was lawfully detained from around 5:00pm on the 24 October,
2016 until around 3:15 pm on the 25 October 2016. The Defendant’s version as set
out in the Defence was as follows.
10. On 23 September 2016, Ms Norisha Pundit (“Ms Pundit”) the Acting Clerk of the Peace
III at the San Fernando Magistrate’s Court, telephoned the Fraud Squad Office, San
Fernando and made a report to Cpl Hosein in relation to a bail application. Cpl Hosein
proceeded to the San Fernando Magistrates’ Court on the said day and met with Ms
Pundit.
11. Ms Pundit reported to Cpl Hosein that on 22 September, 2016 one Vijay Lall (“Mr Lall”)
and one Veronica Lall (“Mrs Lall”) both of 222 Papourie Road, Diamond Village, San
Fernando visited her office and made an application for bail on behalf of one Clifton
David in the sum of $120,000.00 TTD. Mr and Mrs Lall had several documents including
a Court Extract (“the Court Extract”) dated 28 August 2016 for case number 573/16
before her Worship Mrs Forde-John, between the Complainant PC Morris # 16886 of
San Fernando Police Station, and the Defendants Donovan Jaggernauth and Sylvenus
Grant, for Possession of Marijuana. Ms Pundit reported that the Court Extract bore a
‘Magistrate’s Court San Fernando Sep-6 2016’ and ‘Clerk of the Peace San Fernando
Magistrate’s Court’ stamp impressions.
12. Ms Pundit also reported that there was a signature above the ‘Clerk of the Peace’
stamp, which bore a resemblance to one of her co-workers Sandra Ramsaran (“Ms
Ramsaran”) who was also a Clerk of the Peace. Ms Pundit further reported that Mr
Lall informed her that he took the bail for the matter, case number 573/16. Ms Pundit
stated that all documents were accepted as genuine, however, a bail search was done
on the Court Extract provided by Mr Lall and Mrs Lall and it was discovered that case
number 573/16 was in fact postponed to 6 January 2017. A further check was made
of the courts records and it was observed that no payment was made for the issuance
of the Court Extract. Ms Pundit reported that she was of the belief that the Court
Extract was a fraudulent document.
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13. On Wednesday 5 October 2016, at around 10:00 am Ms Pundit again telephoned the
Fraud Squad Office and reported to Cpl Hosein that Mr Lall and Mrs Lall were currently
at the San Fernando Magistrate’s Court. Cpl Hosein together with other officers, Police
Constable Ramdial Regimental Number 16868 (“PC Ramdial”) and Woman Police
Constable Hanza Regimental Number 7526 (“WPC Hanza”) proceeded to the San
Fernando Magistrates’ Court where they arrived at around 10:05 am. The officers met
with Ms Pundit in her office where she then identified two persons to the officers, one
male and one female who were seated about ten (10) feet away in the waiting area.
Ms Pundit escorted the officers to where the persons were seated and pointed to
them and said, “Those are the two persons who tendered the court extract to me in
relation to the report I made on 23 September, 2016”.
14. Cpl Hosein and the other officers identified themselves by showing them their Trinidad
and Tobago Police Service Identification Cards. Cpl Hosein then enquired their names,
the male replied “Vijay Lall”, and the female replied “Veronica Lall”. Cpl Hosein
enquired from them individually if they heard what Ms Pundit said and they both
replied “yes”.
15. Cpl Hosein then informed Mr Lall and Mrs Lall of the report that was made by Ms
Pundit and of the offence of uttering a forged document, cautioned them and
informed them of their legal rights and privileges. Mr Lall replied, “Officer I get that
extract from the court”. Mrs Lall replied “Officer I get it from a man named ‘Duck’ and
he say it from de court, he right outside.”
16. The said officers escorted Mr Lall and Mrs Lall to the outside area of the court where
Mrs Lall pointed to a man who was about five (5) feet away and she said in a loud tone
“He is ‘Duck’, he give me the court extract you showed me.” Cpl Hosein and PC Ramdial
approached the said man and identified themselves to him by showing him their
Trinidad and Tobago Police Service Identification Cards. Cpl Hosein then asked the
man his name and he said “Moses Gow”.
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17. Cpl Hosein asked him if he heard what was said by Mrs Lall and he said “yes”. Cpl
Hosein then told him of the offence committed where he is a suspect. Cpl Hosein
cautioned him and informed him of his legal rights and privileges and he replied “Is
Dablo who give me that, he get it from Kesi.” Cpl Hosein then informed them that they
had committed the offence of uttering a forged court extract. Mr Lall, Mrs Lall and Mr
Gow were cautioned and informed of their legal rights and privileges and they all
remained silent. They were then all placed in an unmarked police vehicle PCM 424 and
conveyed to the Fraud Squad Office. At around 10:25 am the said officers returned to
the Fraud Squad Office with the three (3) suspects and upon arrival each suspect was
placed in a separate office.
18. On the same day, during the period 11:00 am to 12:30 pm Cpl Hosein interviewed Mr
Lall in the presence of PC Ramdial. During this interview, Mr Lall revealed he received
the Court Extract from ‘Duck’, and the latter told him that he got it from the court. Mr
Lall also revealed in the interview that ‘Duck’ works with a man of African descent,
dark complexion, slim built, bald, wears glasses but that he did not know his name. At
around 11:45 am Sookhai Haniff, sister of Mr Lall, came to the Fraud Squad Office and
she witnessed the interview being conducted with Mr Lall.
19. Afterwards on the same day, during the period 1:00 pm and 1:45 pm, and 2:00 pm to
3:15 pm, Cpl Hosein in the presence of PC Ramdial, interviewed Mr Gow also known
as ‘Duck’ and recorded a caution statement from him. During this interview, Mr Gow
revealed that ‘Dablo’ gave him the Court Extract to give to Mr Lall and Mrs Lall for
them to use to secure bail for Clifton David, and he also saw a girl he knows as ‘Kesi’
who is employed at the court give the extract to ‘Dablo’. Mr Gow also revealed that
‘Dablo’ told him that the family is paying $19,000.00 for the bail for Clifton David and
that ‘Dablo’ had made arrangements for Mr Lall and Mrs Lall to be paid $10,000.00
and the balance of $9,000.00 to be split among ‘Dablo’, Kesi and himself. Mr Gow
described ‘Dablo’ as a creole fella, dark skin, big teeth wears glasses, baldhead and
that he knew him over a year. During the interview, Mr Gow also revealed that Mr Lall
is fat man and that he went down to “where fat man was selling doubles” and gave
him the envelope with the Court Extract.
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20. Later on the same day, during the period 5:00 pm to 6:45 pm Cpl Hosein in the
presence of No. 19077 WPC Plante (“WPC Plante”) interviewed Mrs Lall in the
presence of her son Anderson Lall. During this interview, Mrs Lall maintained that
‘Duck” asked her and her husband to take bail for Clifton David. She also maintained
that she received the Court Extract from ‘Duck’ on 21 September 2016, which is the
day before she and Mr Lall went to the San Fernando Magistrates’ Court, and
submitted it for the bail. Mrs Lall also revealed that ‘Duck’ told her that he had
received the Court Extract from the court.
21. On 5 October 2016, Cpl Hosein obtained two search warrants for the homes of Mr and
Mrs Lall and Mr Gow also known as ‘Duck’. Cpl Hosein together with other officers and
Mr and Mrs Lall went to their home situated at 222 Papourie Road, Diamond Village,
San Fernando where the officers executed the search warrant in the presence of Mr
Lall and Mrs Lall. The search was conducted from 7:49 pm to 8:05 pm but nothing
mentioned in the warrant was found.
22. After searching the home of Mr Lall and Mrs Lall, the police officers retrieved Mr Gow
from the San Fernando Police Station and then proceeded to his home at 269 Hillcrest
Avenue, Toradale. Cpl Hosein executed another search warrant during the period
from 8:57 pm to 9:20 pm in the presence of Mr Gow, Tolly Sankar (Mr Gow’s common
law wife) and David Chaitoo (Mr Gow’s son). Several documents were found and
seized containing handwriting specimens however, nothing mentioned in the warrant
was found. Mr Gow was conveyed to the San Fernando Police Station for safekeeping.
23. On 6 October 2016, Cpl Hosein and other officers returned to the San Fernando
Magistrates’ Court where he had a conversation with Ms Pundit and told her of the
information he received of one Kesi Smith (“Ms Smith”). Ms Pundit then escorted the
officers to an area on the 1st floor and pointed out Ms Smith to them. The said officers
then approached Ms Smith and identified themselves to her by showing her their
Trinidad and Tobago Police Service Identification Cards and Cpl Hosein told her of the
report that he was investigating. Cpl Hosein also informed her that investigations
revealed that she handed over the Court Extract to ‘Dablo’. Cpl Hosein then cautioned
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Ms Smith and she replied “I know nothing about that”, her utterance was recorded by
Cpl Hosein and she signed it. The police officers conducted a search of Ms Smith’s
workstation comprising of her desk in the presence of Ms Pundit however, nothing
was found. Cpl Hosein then informed Ms Smith that she was now a suspect in this
matter and cautioned her and informed her that she would be taken to the Fraud
Squad Office to be interviewed.
24. Ms Smith was then conveyed to the Fraud Squad Office in an unmarked police vehicle
PCM 424. Upon arrival at the Fraud Squad Office, Ms Smith was placed in an enclosed
room. At around 12:20 pm Grace Lopez arrived at the Fraud Squad Office on behalf of
Shawn Teekasingh, attorney at law, and she was allowed an audience with Ms Smith.
25. On the same day, during the period 12:45 pm to 1:25 pm Cpl Hosein interviewed Ms
Smith in the presence of WPC Plante. During the said interview, Ms Smith denied any
knowledge of the Court Extract. However, she admitted that she knew ‘Duck’ was a
tout who helps people get bail. When asked if she had ever seen ‘Duck’ in company
with any other persons at the San Fernando Magistrates’ Court she replied, “Yes, with
Mr Smith”. Ms Smith also revealed that Mr Smith is her father’s old friend and she
described Mr Smith as African, short, dark complexion, bald head, wears glasses. She
further revealed his contact number as 467-4678.
26. Cpl Hosein obtained a search warrant to search Ms Smith’s home situated at 333 Mayo
Road, Mayo. Cpl Hosein together with other officers and Ms Smith went to 333 Mayo
Road, Mayo where the search warrant was executed from 5:25 pm to 6:00 pm. Apart
from Ms Smith admitting to being in possession of marijuana, nothing mentioned in
the warrant was found. The police officers then returned to the Fraud Squad Office
with Ms Smith.
27. On 7 October 2018, Ms Ramsaran, Clerk of the Peace San Fernando Magistrates’ Court,
visited the Fraud Squad Office together with a co-worker, Zinna Ramsundarsingh. Cpl
Hosein and WPC Plante identified themselves to Ms Ramsaran by showing her their
Trinidad and Tobago Police Service Identification Cards in the presence of Zinna
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Ramsundarsingh. Cpl Hosein then informed Ms Ramsaran of the report he was
investigating and he cautioned her and told her of her rights and privileges. Cpl Hosein
requested that she be interviewed and she replied, “Ok, go ahead”.
28. On the same day, during the period 9:50 am to 12:30 pm, Cpl Hosein interviewed Ms
Ramsaran in the presence of WPC Plante and Ms Ramsundarsingh and later Mr
Kowlessar. During the said interview, Ms Ramsaran stated that she was unable to
recall the Court Extract but that the signature on it resembled or bore a likeness to her
signature. At around 1:40 pm Ms Ramsaran left the Fraud Squad Office.
29. At around 1:15 pm Cpl Hosein, Acting Superintendent of Police Ghisyawan (“ASP
Ghisyawan”) and other officers left the Fraud Squad Office and proceeded to the
Office of the Director of Public Prosecutions (“the DPP”), South where they sought
advice from the State Attorney at law. The said officers then returned to the Fraud
Squad Office at around 2:00 pm.
30. Later that day, Cpl Hosein charged Ms Smith for possession of marijuana. He also
charged Mr Lall, Mrs Lall and Moses Gow for conspiracy to pervert the course of public
justice.
31. On 24 October 2016, the Claimant visited the Fraud Squad Office accompanied by two
persons Herbert Charles and Mosi James, both Attorneys at Law. Cpl Badree and Cpl
Hosein identified themselves to the Claimant by showing them their Trinidad and
Tobago Police Service Identification Cards. Cpl Hosein informed the Claimant of
information that he had in which the Claimant was a suspect in the matter and
cautioned him in accordance with the Judges Rules.
32. Cpl Hosein also informed the Claimant of his constitutional rights and privileges and
he replied “as far as I am concerned I knows nothing bout this document and what
they speak of”. Cpl Hosein told the Claimant of his intention to interview him and he
said that he had no objection. Cpl Hosein also enquired about the Claimant’s well-
being.
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33. On the same day, during the period 11:05 am to 12:24 pm, Cpl Hosein interviewed the
Claimant in the presence of Cpl Badree, Herbert Charles and Mosi James. During the
interview, the Claimant said his nickname was ‘Darbeau’ and gave his address as 37
Pemberton Street, La Romain. During the interview, Cpl Hosein made reference to
‘Dablo’ and the Claimant corrected same to ‘Darbeau’. The Claimant gave one of his
contact numbers as 467-4678. Cpl Hosein realized that this was the same number that
was given to him by Ms Smith for ‘Dablo’.
34. The Claimant also revealed that he knew Ms Smith, that she worked at the court and
that he knew her father. The Claimant was also asked if he knew ‘Duck’ and he said he
knew him from being by the court and that “he does bail”. The Claimant stated that
he knew a fat man as a doubles salesman from Palmiste through ‘Duck’ and that ‘Duck’
told him that the fat man was taking bail for somebody. Upon completion of the said
interview, the Claimant wrote a certificate and signed it. His Attorneys at law also
signed as having witnessed.
35. Cpl Hosein obtained a warrant to search the Claimant’s home situated at 37
Pemberton Street, La Romain. At around 3:00 pm Cpl Hosein, Cpl Badree and other
officers along with the Claimant left the Fraud Squad Office and proceeded to the
Claimant’s home. The search warrant was executed between 3:40 pm to 4:05 pm in
the presence of the Claimant and his wife Bernadette Bartholomew but nothing
mentioned in the warrant was found.
36. Upon returning to the Fraud Squad Office, Cpl Hosein received instructions from ASP
Ghisyawan to keep the Claimant overnight while continuing enquiries. The Claimant
was later that day conveyed to the San Fernando Police Station for safekeeping.
37. On the next day, 25 October 2016, Cpl Hosein and other officers from the Fraud Squad
Office continued enquires relative to the investigation involving the Claimant.
However, no useful information was obtained.
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38. At around 3:15 pm the Claimant was allowed to leave the Fraud Squad Office after Cpl
Badree informed him that he had received instructions from ASP Ghisyawan to release
him pending further enquiries.
THE ISSUES
39. The following are the issues to be determined:
(a) Did Cpl Hosein have reasonable and probable cause to detain the Claimant?
(b) If yes to (a) is the Claimant entitled to damages and if so, what is the quantum
to which he is entitled?
40. At the trial, the Claimant gave evidence and the Defendant’s witnesses were Cpl
Hosein and Cpl Badree.
41. There are disputes of facts to be resolved in this matter. In such circumstances, the
Court has to satisfy itself which version of events is more probable in light of the
evidence. To do so, the Court is obliged to check the impression of the evidence of the
witnesses on it against the: (1) contemporaneous documents; (2) the pleaded case;
and (3) the inherent probability or improbability of the rival contentions, (Horace Reid
v Dowling Charles and Percival Bain1 cited by Rajnauth–Lee J (as she then was) in Mc
Claren v Daniel Dickey2).
42. The Court must also examine the credibility of the witnesses based on the guidance
of the Court of Appeal judgment in The Attorney General of Trinidad and Tobago v
Anino Garcia3 where it stated that in determining the credibility of the evidence of a
witness any deviation by a party from his pleaded case immediately calls his credibility
into question.
1 Privy Council Appeal No. 36 of 1897 2 CV 2006-01661 3 Civ. App. No. 86 of 2011 at paragraph 31
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DID CPL HOSEIN HAVE REASONABLE AND PROBABLE CAUSE TO DETAIN THE
CLAIMANT?
43. The tort of false imprisonment is established by proof of the fact of imprisonment and
the absence of lawful authority to justify the imprisonment4. In Ramsingh v The
Attorney General of Trinidad and Tobago5 the Privy Council repeated the principles
to determine the tort of false imprisonment as:
“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 arrester, to justify the arrest; that is the Defendant in this case;
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 the person has committed
such an offence; and
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”.
44. Ramsingh reinforced that the onus is on the police to justify the arrest in an action for
unlawful arrest and to establish reasonable and probable cause for it.6 The test is
partly objective and partly subjective7. It is subjective because the arresting police
officer must have formulated a genuine suspicion within his own mind that the
accused person committed the offence. It is partly objective, as reasonable grounds
for the suspicion are required by the arresting officer at the time when the power is
exercised.
4 Clerk & Lindsell on Torts 20 ed at paragraphs 15-23 5 [2012] UKPC 16 at para 8 6 Dallison v Caffery [1965] 1 Q.B. 348 at 370). 7 O’ Hara v Chief Constable of the Royal Ulster Constabulary [1997] 1 AER 129 p 138j –139a) per Lord Hope of Craighead
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45. The Claimant was detained on the 24 October 2016 without a warrant. At page 291 of
the English judgment of O’Hara v Chief Constable Of The Royal Ulster Constabulary8
the Court stated that:
“The compromise which English common and statutory law has evolved for the
accommodation of the two rival public interests while these first steps are being
taken by the police is twofold: (1) no person may be arrested without warrant (i.e.
without the intervention of a judicial process) unless the constable arresting him
has reasonable cause to suspect him to be guilty of an arrestable offence; . . . (2)
a suspect so arrested and detained in custody must be brought before a
magistrates' court as soon as practicable ..."
46. The power of a police officer to detain a person without warrant exists not only at
common law, but also under statute. These powers are encapsulated in the provisions
of the Police Service Act9 and the Criminal Law Act10.
47. Section 46 of the Police Service Act provides:
“(2) Without prejudice to the powers conferred upon a by subsection (1), a police
officer, and all persons whom he may call to his assistance, may arrest without a
warrant a person who within view of such police officer commits an offence and
whose name or residence is unknown to such police officer and cannot be
ascertained by him.”
48. Section 3(4) of the Criminal Law Act provides:
“Where a Police officer, with reasonable cause, suspects that an arrestable
offence has been committed; he may arrest without warrant anyone whom he,
with reasonable cause, suspects to be guilty of the offence.”
49. The test for reasonable and probable cause was explained by Lord Diplock in Dallison
v Caffrey11 at page 366 where he stated:
8 [1997] A.C. 286 9 Chapter 15:01 10 Chapter 10:01 11 [1935] 1 QB 348
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“The test whether there was reasonable and probable cause for the arrest or
prosecution is an objective one, namely whether a reasonable man assumed to
know the law and possessed of the information which in fact was possessed by
the Defendant would believe that there was reasonable and probable cause.”
50. The distinction between reasonable suspicion and prima facie proof was examined by
the Privy Council in Shaaban & Ors v Chong Fook Kam & Anor12. At page 1630 of the
judgment Lord Devlin stated:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof
is lacking; “I suspect but I cannot prove”. Suspicion arises at or near the starting
point of an investigation of which the obtaining of prima facie proof is the end.
When such proof has been obtained, the police case is complete; it is ready for
trial and passes on to its next stage.”
51. Later at page 1631 Lord Devlin continued:
“There is another distinction between reasonable suspicion and prima facie proof.
Prima facie consists of admissible evidence. Suspicion can take into account
matters that could not be put in evidence at all ... Suspicion can take into account
also matters which, though admissible could not form part of a prima facie case.”
52. Several years later, the House of Lords in Holgate Mohammed v Duke13 determined
that a police officer’s use of his discretion to make an arrest where reasonable grounds
for suspicion exist cannot be questioned except on Wednesbury grounds. Lord Diplock
explained at page 443 of the judgment that:
“…since the wording of the subsection under which he acted is "may arrest
without warrant," this left him with an executive discretion whether to arrest her
or not. Since this is an executive discretion expressly conferred by statute upon a
public officer, the constable making the arrest, the lawfulness of the way in which
12 PC appeal No 29 of 1968 13 (1984) 1 AC 4
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he has exercised it in a particular case cannot be questioned in any court of law
except upon those principles laid down by Lord Greene M.R. in Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223…The
first of the Wednesbury principles is that the discretion must be exercised in good
faith. The judge in the county court expressly found that Detective Constable Offin
in effecting the initial arrest acted in good faith. He thought that he was making a
proper use of his power of arrest.”
53. The Defendant’s case was that the Claimant was detained in connection with the
offence of perverting the course of public justice. Section 7 of the Criminal Offences
Act14 provides:
“7. Any person who is convicted on indictment of any of the following
offences, that is to say, any cheat or fraud punishable at common law; any
conspiracy to cheat or defraud, or to extort money or goods, or falsely to
accuse of any crime, or to obstruct, prevent, pervert or defeat the course
of public justice; any escape or rescue from lawful custody on a criminal
charge; any public and indecent exposure of the person; any public selling
or exposing for public sale or to public view of any obscene book, print,
picture or other indecent exhibition, is in respect of any of the above
convictions liable to imprisonment for any term warranted by law, and also
to be kept to hard labour during the whole or any part of such term of
imprisonment.” (Emphasis added)
54. Counsel for the Defendant argued that Cpl Hosein had reasonable and probable cause
to arrest the Claimant on suspicion of committing the offence of attempting to pervert
the course of justice based on the utterances made by Mrs Lall, Mr Gow also known
as ‘Duck’, the statements/ interview notes (“the Statement”) he had from Mr Lall, Mrs
Lall, Mr Gow and Ms Smith and his observations of the Claimant’s appearance as
described by Mr Gow also known as ‘Duck’ and Ms Smith.
14 Chapter 11:01
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55. Before I address the evidence of the witnesses for the Defendant, I will deal with the
Claimant’s evidence first.
56. The Claimant pleaded in his Statement of Case that he was wrongfully arrested and
detained in a cell from approximately 5:05 pm on the 17 October 2016 to 5:20 pm on
the 18 October 2016. In his witness statement, he had initially stated that he was
placed in a cell at 5:05 pm on the 17 October 2016 and at 5:20 pm on the next day i.e.
18 October 2016 he was permitted to leave. However, at the trial, the Claimant
indicated that the date of the 18 October 2016 should instead read the 25 October
2016. He also corrected paragraph 3 of his witness statement where he stated that he
visited the Fraud Squad Office on the 24 October 2016 and not on the 17 October
2016 as stated in his witness statement.
57. The other aspects of the Claimant’s witness statement mirrored his statement of case.
58. In cross examination, the Claimant stated that his instructing Attorney at law went
through the Defendant’s Defence with him. He explained that the error with the dates
in his witness statement was done by the person who interviewed him at his
Instructing Attorneys at law office. He stated that he pointed out the error to her but
she did not change it.
59. In my opinion, the Claimant was not a witness of truth when he stated that the person
who took his instructions for his witness statement made the error since he accepted
that he was taken through the Defence by his Instructing Attorney at law, which stated
that the dates were the 24 October 2016 and 25 October 2016 respectively. Further,
upon being informed that the Defence stated dates, which were inconsistent with the
dates, pleaded in his Statement of Case, the Claimant failed to take steps to seek
permission to amend his Statement of Case to ‘correct” any errors. In my opinion, the
Claimant’s evidence at the trial did not assist the credibility of his evidence since it was
still inconsistent with the information in his pleaded case.
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60. Cpl Hosein’s witness statement set out his role in the investigation, which mirrored
that as stated in the Defence. He attached copies of the respective handwritten
statements from the interview he took from Ms Pundit as “ K.H 1”; from Mr Lall as
“K.H. 2”; from Mr Gow, also known as ‘ Duck’ as “K. H. 3”; from Mrs Lall as “K. H. 4”
from Ms Smith as “K.H. 6” and from the Claimant as “K. H.8”. The attached statements
were contemporaneous notes of Cpl Hosein and the information contained therein
were consistent with his evidence as stated in his witness statement. Cpl Hosein
attached copies of the respective Station Diary Extracts, which detailed the conduct
of the execution of the search warrant on Mr Gow also known as ‘Duck’ also known
as “K. H. 5”; at Ms Smith’s home as “K. H.7” and at the Claimant’s house as “K. H. 9”.
Cpl Hosein’s evidence in his witness statement concerning the execution of both
search warrants was consistent with that stated in the Station Diary Extracts.
61. Cpl Hosein stated in his witness statement that after the execution of the search
warrant at the Claimant’s house they did not find anything, which was mentioned in
the search warrant. The police officers returned to the Fraud Squad Office with the
Claimant. Cpl Hosein outlined the events after returning to the Fraud Squad Office at
paragraphs 29 to 31 of his witness statement as follows:
“29. I received instructions from ASP Ghisyawan to keep the Claimant
overnight while continuing enquiries. Around 5:10 pm the Claimant was
conveyed to the San Fernando Police Station for safekeeping. At around 8:00
pm I along with other officers left office relative to enquiries concerning the
Claimant.
30. On 25th October, 2016 at around 7:15 am I returned to office having
conducted enquires relative to the Claimant. During my enquires I interviewed
persons, made observations but received no useful information. Upon
returning to office I continued other policing duties. At around 2:00 pm Cpl
Badree returned to office relative to his enquires involving the Claimant,
however he informed me that no useful information was obtained.
Page 17 of 27
31. At around 3:15 pm the Claimant was allowed to leave the Fraud Squad
Office after Cpl Badree informed him that he had received instructions from
ASP Ghisyawan to release him pending further enquiries. This event was
recorded in the Station Diary of the Fraud Squad office dated 25th October
2016. A true copy of the said Station Diary is now shown to me and hereto
annexed and marked “K.H.10”.
62. The contents of the Station Diary Extract, which Cpl Hosein annexed as “K. H. 10” was
consistent with his evidence as, set out in his witness statement.
63. Cpl Hosein was cross examined on the interviews he conducted with Mr Gow also
called ‘Duck’, Ms Smith and the Claimant. He was also questioned on the events
subsequent to the execution of the search warrant at the Claimant’s home.
64. Cpl Hosein admitted in cross examination did he did not ask Mr Gow also known as
‘Duck’ about Dablo’s address. He confirmed that the statement he took from Mr Gow
also known as ‘Duck’ which he recorded and annexed to his witness statement was
accurate.
65. Cpl Hosein also stated in cross examination that during his interview with Ms Smith
she gave Dablo’s full name, telephone number and a description of him. He admitted
that Ms Smith did not give an address for Dablo. Cpl Hosein explained that after
interviewing Ms Smith on the 6 October 2016, he made an effort to contact the
Claimant but he failed to indicate this in his witness statement.
66. Cpl Hosein confirmed in cross examination that on the 24 October 2016 he
interviewed the Claimant in the presence of Cpl Badree and the Claimant’s Attorneys
at law and that during this interview his suspicion was further established of the
connection between Dablo and the Claimant.
Page 18 of 27
67. Cpl Hosein also confirmed in cross examination that after the Claimant was
interviewed he was taken to a Justice of the Peace for his statement to be certified
and then the Claimant was placed in a cell. He then obtained a search warrant of the
Claimant’s home in relation to the charges, which were proffered against Mr Lall
concerning the Court Extract, which Mr Lall had. He accepted that the warrant was
not part of the proceedings but he stated that he had provided a copy to the
Defendant’s Attorneys at law.
68. Cpl Hosein stated in cross examination that paragraph 30 of his witness statement was
incorrect as he returned from making enquiries at 7:55 pm and not 7:15 pm on the 25
October 2016 as stated in his witness statement.
69. In re-examination, Cpl Hosein reiterated that the first time he met the Claimant was
on the 24 October 2016.
70. In my opinion, Cpl Hosein was a witness of truth since to a large extent, his evidence
in chief was consistent with the facts pleaded in the Defence and it was unshaken in
cross examination in material aspects. Cpl Hosein’s evidence was consistent on the
persons whom he interviewed after he received the complaint. He provided
contemporaneous documents, which supported his evidence as he exhibited copies
of the statements of all the persons he interviewed, and the information contained in
the statements supported his evidence. He exhibited the copies of the relevant Station
Diary Extracts when the search warrants were executed and the information
contained therein also supported his evidence. Cpl Hosein also exhibited the Station
Diary Extract, which supported his evidence that the Claimant was released from
custody at 3:15 pm and not approximately 5:00 pm, which the Claimant asserted.
71. However, the failure by Cpl Hosein to indicate in his witness statement that he made
efforts to contact the Claimant prior to the latter coming into the police station was
lacking in credibility since if he did make such efforts he would have recalled this
important detail to have it included in his witness statement.
Page 19 of 27
72. Further, I accept that Cpl Hosein did not exhibit a copy of the search warrant of the
Claimant’s house to his witness statement. In my opinion, this was not material since
it was not in dispute that a search warrant was issued and executed in the presence
of the Claimant at his home and that the police officers did not find anything, which
was stated in the search warrant.
73. Cpl Badree’s evidence in chief on his role in the investigation prior to the Claimant
being placed in the cell on the evening of the 24 October 2016, as set out in his witness
statement also mirrored that which was set out in the Defence. At paragraphs 17 to
19 of his witness statement he set out the details of his activities after the Claimant
was placed in a cell as:
“17. At around 5:10 pm PC Hosein and PC Ligiere left the Fraud Squad Office
with the Claimant to have him lodged at the San Fernando Police Station. At
8:15 pm I left office on enquiries at Tarouba Heights relative to information
received from Mr Gow and proceeded on leave. I then returned to office on
the morning of 25th October, 2016.
18. During the morning period on 25th October 2016, I together with other
officers left office at 5:00 am and continued enquiries where we spoke to
several confidential contacts in relation to information that was forthcoming
from the Lalls and Gow and paid surveillance to areas along Harris Street and
the Food Court in the vicinity of Library Corner and we received certain
information. We later returned to the office at around 2:00 pm and I informed
Cpl Bachoo and PC Hosein of my findings. I then had a conversation with ASP
Ghisyawan and I told him of my findings. Sometime later he contacted me and
he indicated that based on what he was told thus far he communicated with
Senior Superintendent Dookie who gave instructions to release the Claimant
pending enquiries.
Page 20 of 27
19. At 2:15 pm PC Ligiere and I left office and we returned at 3:00 pm with the
Claimant who was retrieved from the San Fernando Police Station. In my
presence PC Ramdial enquired from the Claimant if he was ailing or suffering
from any injuries and he said “no”. PC Ramdial also enquired from him whether
he had anything to eat to which he said it as he did not want anything to eat.
At 3:15 pm I allowed the Claimant to leave the office after telling him of the
conversation I had with my senior officers and informing him that he was
released pending further enquiries. These event were recorded in the Station
Diary of the Fraud Squad office dated 24th and 25th October 2016. True copies
of the said Station Diary is now shown to me and hereto annexed and marked
“D.B.1”.
74. The contents of the Station Diary Extract, which he annexed as “D.B. 1” was consistent
with his evidence as, set out in his witness statement.
75. Cpl Badree was cross examined on his role in the interview with Mr Lall, Mrs Lall, Mr
Gow also known as ‘Duck’, Ms Smith and the Claimant. He was also questioned about
his role in the investigation after the search warrant was executed at the Claimant’s
home.
76. Cpl Badree stated in cross examination that he was not present when Mr Lall and Mrs
Lall were interviewed by Cpl Hosein and he was unable to recall if he was present
when Ms Smith was interviewed.
77. Cpl Badree stated that he was present during the interview of Mr Gow also known as
‘Duck’ and that the latter gave a description of Dablo. Cpl Badree said that he asked
Mr Gow also known as ‘Duck’ about Dablo’s address but the latter did not know. Cpl
Badree was shown the statement of Mr Gow and he was asked by Counsel for the
Claimant to indicate from the statement where he asked Mr Gow about the address
for Dablo. Cpl Badree then stated that Cpl Hosein took the statement and that he was
not present when Mr Gow was interviewed.
Page 21 of 27
78. Cpl Badree stated in cross examination that he was present when the Claimant was
interviewed. He testified that he knew the Claimant prior to when the complaint was
made and that he made attempts to locate the Claimant to come into the police
station to make a statement prior to the date the Claimant visited on the 24 October
2016. Cpl Badree stated that he made a notation in the Station Diary of his efforts to
locate the Claimant and that he had handed over the said Station Diary Extract to the
Defendant’s Attorneys at law. According to Cpl Badree after the 6 October 2016 the
first time he saw the Claimant was on the 24 October 2016 when the latter visited the
Fraud Squad Office with his Attorneys at law. He stated that he recognised the
Claimant and he informed Cpl Hosein that the Claimant was at the office on the 24
October 2016. According to Cpl Badree, when he got the description of Dablo and he
saw the Claimant he was of the opinion that the Claimant matched the description.
79. Cpl Badree stated that after the Claimant’s statement was certified by a Justice of the
Peace, he was placed in a cell prior to the execution of the search warrant. He stated
that the parameters of the search warrant, which Cpl Hosein obtained for the
Claimant’s house was to search for evidence or documents relating to the offence for
which Mr Gow and Mr Lall and Mrs Lall were arrested.
80. Cpl Badree also testified in cross examination that after the Claimant’s house was
searched and nothing was found as stated in the search warrant, the Claimant was
returned to the police station and placed in a cell after 5 pm on the 24 October 2016.
He stated that he continued enquiries on the night of the 24 October 2016 and he
obtained useful information but it was not recorded in the Station Diary.
81. In my opinion, Cpl Badree was a mixed bag of truth and unreliable evidence. He was
not a witness of truth when he stated that he was present at the interview of Mr Gow
also known as ‘Duck’ since he admitted this in cross examination. Further, it was
inconsistent with the Defence and the evidence of Cpl Hosein as both stated that Mr
Gow was interviewed in the presence of PC Ramdial. Cpl Badree’s evidence that he
made efforts to get the Claimant to make a statement prior to the latter coming into
the police station on the 24 October 2016 was not reliable since he failed to exhibit a
Page 22 of 27
copy of the Station Diary Extract to support his evidence and this was a marked
departure from the Defence. However, I accept that Cpl Badree continued enquiries
from the night of the 24 October 2016 to the 25 October 2016 since this was stated in
the Station Diary Extract for that period which was exhibited as “K. H.” to the witness
statement of Cpl Hosein. However, I do not accept that Cpl Badree reported that he
obtained additional useful information when he reported on the morning of 25
October 2016 since this was inconsistent with the information in the said Station Diary
Extract.
82. Based on the credible evidence, Cpl Hosein had utterances and statements all
supported by contemporaneous documents which implicated the Claimant in the
alleged offence of conspiracy to pervert the course of public justice. He had the
following objective facts before he placed the Claimant in the cell on the 24
October2016 :
(a) A report from Ms Pundit, Ag Clerk of Peace II from San Fernando
Magistrate’s Court that Mr Lall and Mrs Lall visited her office to make a bail
application and in support they submitted the Court Extract which she
believed to be fraudulent and bore a resemblance of the signature of her
co-worker Ms Ramsaran, a Clerk of the Peace. This was reduced in her
statement dated 22 September 2016.
(b) Ms Ramsaran confirmed the information received from Ms Pundit when
she provided a statement on 7 October 2016 to Cpl Hosein that she could
not recall the Court Extract and that the signature bore a likeness to hers.
(c) Utterances from Mrs Lall and Mr Gow upon their arrest on the 5 October
2016. Mrs Lall made an utterance which implicated Mr Gow also known as
‘Duck’ since she stated that she got the Court Extract from a man called
‘Duck’ and she identified him to Cpl Hosein. Upon being approached by Cpl
Hosein, Mr Gow, also known as ‘Duck’ made an utterance which implicated
‘Dablo’ and Ms Smith when he stated “is Dablo who give me that, he get it
from Kizzy”.
(d) Statements dated 5 October 2016 from Mr Lall, Mrs Lall and Mr Gow.
Page 23 of 27
(e) In Mr Lall’s statement,15 upon being asked if he knew if ‘Duck’ worked with
anybody, he replied “Not really. But I have seen him in company with
another man in front of the court in San Fernando.” In describing the man,
Mr Lall said “he is African, dark complexion, slim built, a little taller than
me, bald head wears glasses, well dressed. I don’t know his name.”
(f) In Mrs Lall’s statement she confirmed she received the Court Extract from
‘Duck’ who told her he received it from the Court. Her statement was
inconsistent with Mr Gow also known as ‘Duck’ statement since she said
‘Duck’ not Dablo asked her and Mr Lall to take bail for Clifton David.
(g) Mr Gow also known as ‘Duck’ in his statement implicated Mr Lall and Mrs
Lall, Ms Smith and ‘Dablo’. He implicated the Claimant and Ms Smith as he
stated he saw Ms Smith, whom he knew was employed with the Court,
give the Court Extract to Dablo in “a small white envelope”. He added, “Is
not the first time she would have handed small envelope to Dablo in front
the court. Normally when she give Dablo envelopes he would give me it to
give people so they could get bail for people.” He further implicated ‘Dablo’
when he stated “Yes officer is Dablo give me that Court Extract in front San
Fernando Magistrates Court to give to Vijay Lall and he wife for them to
get bail for Clifton David”. He also stated that “Dablo told him that the
family was paying $19,000.00 for bail for Clifton David and that Dablo had
made arrangements for Mr Lall and Mrs Lall to be paid $10,000.00 and for
$9,000.00 to be shared among Dablo, Ms Smith and him. He also described
Dablo as as “a creole fella, dark skin in complexion, big tooth, wears
glasses, he is over fifty years, bald head.” He described Mr Lall as a fatman
and that he went where the fatman was selling doubles and gave him the
envelope with the Court Extract.
(h) On the 5 October search warrants were obtained and executed
consecutively at the homes of Mr and Mrs Lall and Mr Gow also known as
‘Duck’ in their respective presence. Nothing was found to implicate them.
15 Exhibit “K.H.2” in the witness statement of Cpl Hosein
Page 24 of 27
(i) On 6 October 2016, Cpl Hosein and Cpl Badree spoke with Ms Smith at the
San Fernando Magistrate’s Court. Ms Smith made an utterance denying
that she was involved in the alleged tampering with the Magistrate’s Court
Extract.
(j) On 6 October 2016, Ms Smith’s workstation at the San Fernando
Magistrate’s Court was searched by Cpl Hosein and Cpl Badree but nothing
was found.
(k) On 6 October 2016, Ms Smith was interviewed by Cpl Hosein and a
statement was obtained from her. In it, Ms Smith acknowledged that she
knew Mr Gow also known as ‘Duck’ as “a tout who helps people get bail”;
she knew Mr Smith as Dablo who is a tout and he is an old friend of her
father; she has seen ‘Duck’ in the company of Dablo and other persons at
the San Fernando Magistrate’s Court; she described Dablo as African,
short, dark complexion, bald head and she gave Dablo’s telephone contact
as 467-4678. She further said Dablo lived “Somewhere in La Romaine. I
don’t know.”
(l) On 6 October 2016 after taking a statement from Ms Smith, Cpl Hosein
obtained a search warrant to search Ms Smith’s home. It was executed
later that day in the presence of Ms Smith but nothing stated therein was
found but marijuana was found.
(m) On 7 October 2016, Cpl Hosein together with other senior officers
including ASP Ghisyawan visited the DPP’s Office in San Fernando and
obtained advice from State Counsel.
(n) On 7 October 2016, Cpl Hosein charged Mr and Mrs Lall and Mr Gow also
known as ‘Duck’ for the offence of conspiracy to pervert the course of
public justice. He also charged Ms Smith for possession of marijuana.
(o) On 24 October 2016, the Claimant visited the Fraud Squad San Fernando
with his Attorneys at law. He gave a statement to Cpl Hosein. In it he
admitted that his alias was ‘Darbeau’; he knew Ms Smith worked at the
Court; he knew Ms Smith’s father; he knew Mr Gow also known as ‘Duck’
from Court as ‘he does bail’; he knew a fatman doubles man from Palmiste
through ‘ Duck’ since the latter told him that the fatman was “ taking bail
Page 25 of 27
for somebody”; he gave his telephone contact as 467-4678; he gave his
address as Pemberton Street La Romaine. His admissions were consistent
with parts of the statements of Mr Gow also known as ‘Duck’ and Ms
Smith. However, he implicated ‘Duck’ in the bail arrangement with “the
fatman”.
(p) After obtaining the Claimant’s statement on the 24 October 2016, Cpl
Hosein obtained a warrant to search the Claimant’s home. The said
warrant was executed on the same day in the presence of the Claimant but
nothing stated in the said warrant was found.
(q) After the execution of the search warrant, ASP Ghisyawan told CPL Hosein
to keep the Claimant overnight at the San Fernando Police Station and to
continue further investigations.
83. Therefore, from the aforesaid objective facts Cpl Hosein had the following
circumstantial information which implicated the Claimant in the offence of
attempting to prevent the course of public justice: (i) statements from Mr Lall, Mrs
Lall and Mr Gow (ii) a statement from Ms Smith implicating the Claimant as a ‘tout’
at the San Fernando Magistrate’s Court who is involved in securing bail for persons;
(iii) a statement from the Claimant who admitted knowing Mr Gow, Ms Smith and a
doubles man from Palmiste, his telephone contact was the same as that provided by
Ms Smith; and (iv) he matched the description of the person described as Dablo as
given by Mr Gow also known as ‘Duck’ and Ms Smith.
84. While the Claimant was still being detained, the other objective facts which were
available were:
(a) At 8:00pm on the 24 October 2016, Cpl Hosein left the police station with
other officers to conduct further enquiries.
(b) On the 24 October 2016 at around 8:15 pm, Cpl Badree left the police
station to conduct further enquiries at Tarouba Height in relation to
information received from Mr Gow also known as ‘Duck’. He returned on
the morning of the 25 October 2016.
Page 26 of 27
(c) On the 25 October 2016 at around 5:00 am, Cpl Badree left the police
station with other officers to conduct further enquiries. He spoke with
several confidential contacts in relation to the information received from
Mr and Mrs Lall and Mr Gow. He conducted surveillance in areas along
Harris Street and the Food Court in the vicinity of Library Corner where he
received certain information.
(d) On the 25 October 2016 at around 7:55 am, Cpl Hosein returned to the
police station after conducting further enquiries but he did not receive any
additional information.
(e) On the 25 October 2016 at around 2:00 pm, Cpl Badree returned to the
police station after conducting further enquiries. He informed Cpl Hosein
and ASP Ghisyawan of his findings.
(f) ASP Ghisyawan communicated the additional findings to Senior
Superintendent Dookie who gave instructions to release the Claimant
pending further enquiries.
(g) At 2:00 pm, Cpl Badree and PC Ligiere left the Fraud Squad Office to
retrieve the Claimant from the San Fernando Police Station and they
returned at 3:00pm with him.
(h) At 3:15 pm, the Claimant was released.
85. After the Claimant was detained from the afternoon of the 24 October 2016, Cpl
Hosein did not personally receive any additional information when he returned to the
police station on the 25 October 2016 at 7:55am. According to the Station Diary
Extract for the 25 October 2016, Cpl Badree returned at 4:00am on that morning and
reported that he had no useful information on the investigation. He left again and
returned at 2:00 pm after he said he made observations and interviewed persons but
he had no further information.
86. Based on the aforesaid objective facts, in my opinion, a reasonable officer in the same
position as Cpl Hosein had reasonable grounds to form the genuine suspicion that the
Claimant had committed the offence of conspiracy to pervert the course of public
justice for which he was detained. For these reasons, I have concluded that the
Page 27 of 27
Claimant was not wrongly detained during the period 24 October 2016 at
approximately 5:00 pm to 25 October 2016 at approximately 3:15 pm.
87. Having found in favour of the Defendant, the issue of damages does not arise.
COSTS
88. I have decided that costs must follow the event since there are no exceptional
circumstances to depart from the general rule. In the Claimant’s Statement of Case
the Claimant pleaded $3,800.00 special damages. The Claimant also made a claim for
general damages. In the Claimant’s closing submission, he requested that an award of
general damages inclusive of an uplift for aggravated damages in the sum of
$65,000.00 - $85,000.00 and an award for exemplary damages in the sum of
$10,000.00 - $20,000.00 be made. In Dhanram Basdeo v The Attorney General of
Trinidad and Tobago CV 2012-00763 Kokaram J (as he then was) in stipulating a sum
examined the Claimant’s submissions on quantum of damages. I have quantified the
costs based on the sum pleaded for special damages of $3,800.00, the lower sums
requested for general damages of $65,000.00 and exemplary damages of $10,000.00,
which is a total of $78,800.00. I therefore award prescribed costs pursuant to Rule
67.5(2) (b) (ii) Civil Proceedings Rules as amended in the sum of $19,760.00.
ORDER
89. The Claimant’s action is dismissed.
90. The Claimant to pay the Defendant’s costs in the sum of $19,760.00 pursuant to Rule
67.5(2) (b) (ii) Civil Proceedings Rule 1998 as Amended.
Margaret Y Mohammed
Judge
