Atkinson v Assistant Superintendent et Al

 
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Supreme Court

Wolfe, J.

No. A188 of 1986

Atkinson
and
Assistant Superintendent et al
Appearances:

Ursula Khan for the plaintiff.

E.H. O'Ness and Frank Williams for the defendants.

Tort - Malicious prosecution — Claim for malicious prosecution — Claim by defendant that plaintiff had stolen goods — Grounds to be proved — Proceedings instituted by plaintiff — Defendant did have reasonable and probable cause — Defendant did act maliciously — Proceedings terminated in plaintiff's favour and no damage as a result — Action dismissed.

Wolfe, J.
1

On the 20th day of November, 1990 I gave judgment for the defendants with costs to be taxed if not agreed in the suit herein and promised to put my reasons for so doing, in writing. That promise is now being fulfilled.

2

The plaintiff herein is a travelling salesman residing at No.1 Forsythe Drive in the parish of Saint Andrew. The plaintiff had previously been the Managing Director and majority shareholder of Novelty Plastics Limited. He held 93 per cent of the issued shares.

3

At the hearing the plaintiff gave evidence that as a result of a message received he contacted the first defendant at the Central Police Station and spoke to him. On that occasion the first defendant informed him that he wished to speak to him about certain pieces of machinery. An appointment was set up and both the plaintiff and the first defendant met on the following day.

4

At this meeting the first defendant informed the plaintiff that one Tony Bridge had reported to him that he, the plaintiff, had stolen machinery belonging to him. The plaintiff informed the first defendant that the report was baseless, and that the machinery was the property of Novelty Plastics Limited, a company duly incorporated under the Companies Act of Jamaica, of which he was the majority shareholder. He further informed Assistant Superintendent Reynolds that Tony Bridge and Keith Shervington, formerly shareholders in Novelty Plastics Limited, had sold all their shares to the plaintiff some two years prior to the allegation. The transaction had even resulted in legal proceedings being instituted to compel the transfer of the shares by Bridge. Apparently Reynolds was unimpressed and the plaintiff, anxious to exonerate himself, advised Reynolds to check with his lawyer and the Registrar of Companies to verify his account. If the plaintiff is to be believed, Reynolds in no uncertain terms told him that he would do no such thing and advised him that the only option open to him was to deliver up the machines or face being arrested. Reynolds afforded him time to consider the matter and to continue his investigations.

5

The plaintiff immediately contacted his lawyer who in turn contacted Reynolds. In the presence of the plaintiff the un-named lawyer told Reynolds that the matter was a civil matter and verified what the plaintiff had told Reynolds at the Central Police Station meeting.

6

The plaintiff next heard from Reynolds in February 1984 when he was informed to report to the Half Way Tree Court House, where he would be arrested and placed before the court. The plaintiff, accompanied by his lawyer, obliged. He was arrested and placed before the court as promised. He pleaded not guilty to the charge of larceny and was granted bail in the sum of Fifty Thousand ($50,000.00). He was further ordered to surrender his passport to the police and to report to the Central Police Station once weekly until the matter was finally disposed of. The plaintiff attended court on some sixteen occasions and on the 28th November, 1985 A No Order was made. Information No. 1300/84, on which the plaintiff was charged, was tendered and admitted in evidence, by Consent, as Exhibit I. The endorsement thereon reads:

On 28/11/85

“No Order made insufficient evidence for a criminal action. Civil proceedings advised”.

Sgd. L.E. Vanderpump

R.M. St. Andrew.

7

By way of comment, I observe that the endorsement supported the view held by the plaintiff's attorney-at-law and which view was communicated to Reynolds. The arrest and prosecution of the case had a traumatic effect on the plaintiff's life. He was affected both personally and financially. He became very depressed and worried. He was unable to sleep. He lost appetite. Whenever he appeared in public people jeered him and called him a thief. He had to retreat to living the life of recluse. In today's Jamaica where villains and drug barons have become the role models and where honest men are a dying specie, I find it difficult to accept that the plaintiff was jeered and labelled thief by persons. As a judge presiding over the Criminal Courts of this country the experience is that cheers are wild when robbers and dishonest men are acquitted. A verdict of guilty is usually received with wails of distress and abuse by a large following of persons. Reporting to Central weekly was a source of embarrassment to the plaintiff. This I can well understand. The plaintiff's friends deserted him. The cost of providing himself with legal representation amounted to Ten Thousand Dollars. Receipts issued from the law offices of K. Churchill Neita were admitted in evidence in support of the payment. The above summary of the evidence was the basis on which the plaintiff sought to recover damages against the defendants for trespass and/or malicious Prosecution. It is convenient to make reference to paragraphs 3, 6 – 8 of the plaintiffs statement of claim.

Paragraph 3. “On the said 27th day of February, 1984 the first-named defendant falsely, maliciously and without reasonable and/or probable cause arrested the plaintiff and charged him with larceny…”

Paragraph 6. “That the said prosecution of the plaintiff was malicious and there was no reasonable and/or probable cause for the said prosecution or its continuance for over 21 months.”

Paragraph 7. That due to the negligence of the first-named defendant in asking proper enquiries and investigations, his conduct and actions were malicious.”

Paragraph 8. “That despite the available evidence the prosecution continued and remained pending for over 21 months.”

8

As a matter of completeness I must mention that the plaintiff called a character witness in the person of Mr. Hubert Smith, a mechanic, of 21 Munster Road, Kingston 3.

9

The first named defendant, Assistant Superintendent Reynolds, testified that he received certain information as a result of which he went to Novelty Trading Company Limited where he saw and spoke to Tony Bridge. A report was made to him by Bridge, as a result of which he commenced investigations into a case of larceny of a quantity of machines and equipment the property of Novelty Trading Company Limited. He saw and spoke to the plaintiff informing him of the allegations made by Bridge and that the plaintiff was alleged to have stolen the machines. The plaintiff's response to the allegation was a flat denial of any knowledge of the machinery. Reynolds said he further asked the plaintiff what he had done with the machinery. Again the plaintiff denied removing the machinery from Bell Road. The investigations were continued and upon conclusion the first named defendant said he discussed the file with Mr. Patrick Brooks, a crown counsel in the Director Public Prosecutions Department. Based upon advice received from Mr. Brooks he obtained a warrant for the arrest of the plaintiff. The warrant was duly executed by arresting the plaintiff. The first defendant denied he had told the plaintiff that he must deliver up...

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