Janece Greenwood v Zepheniah Aarons and Others

• Jurisdiction: Jamaica
• Judge: McDonald J
• Judgment Date: 14 September 2016
• Neutral Citation: [2016] JMSC Civ 149
• Docket Number: IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 01144
• Court: Supreme Court (Jamaica)
• Date: 14 September 2016

[2016] JMSC Civ 149

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

McDonald J

IN THE CIVIL DIVISION CLAIM NO. 2010 HCV 01144

Between

Janece Greenwood

Claimant

and

Zepheniah Aarons

1 ^st Defendant

And

Milton Grey

2 ^nd Defendant

And

The Attorney-General of Jamaica

3 ^rd Defendant

Mr. Sean Kinghorn instructed by Kinghorn & Kinghorn for the Claimant

Mr. Garth McBean Q.C. and Mrs. D. Johnson instructed by Garth McBean & Co. for the 1 ^st Defendant

Ms. Marlene Chisolm and Mrs. Vanessa Young instructed by the Director of State Proceedings for 2 ^nd & 3 ^rd Defendants

Malicious Prosecution — Whether complainant to be considered prosecutor — Whether officer to be considered prosecutor in circumstances — Whether prosecutor had reasonable or probable cause — Damages — Aggravated Damages — Exemplary damages — Vindicatory damages

Introduction

1 On 30th November 2005, the Claimant, Janece Greenwood was arrested and charged with larceny as a servant by the 2nd Defendant Constable Milton Grey, following a question and answer session at the flying squad in relation to a complaint made by her former employer, 1 ^st Defendant Mr. Zephaniah Aarons, that she stole a considerable sum of money from his business. Proceedings against her were instituted and commenced in the Corporate Area Resident Magistrate's Court before Her Honour Mrs. Bertram Linton (as she then was), on 13 ^th December 2005, but due to a series of adjournments and other setbacks, trial did not commence until 7 ^th October 2008. Subsequently, the Claimant was discharged on 5 ^th February 2009, when the crown offered no further evidence against her.

2 Ms. Greenwood now seeks damages for Malicious Prosecution against the Defendants for her ordeal, alleging that she was unlawfully, maliciously and without reasonable and/or probable cause, charged with the offence of Larceny as a Servant.

Factual Background

3 The Claimant, who, by the time of trial was a teacher, was at the material time an accountant by profession. She was born on the 23 ^rd November 1980 and at the material time would have been about 25 years old.

4 The 1 ^st Defendant is and was at all material times Manager and proprietor of a travel agency known as Distinctive Travel and Tours Limited (DTT), as well as the manager and proprietor of a business known as Jamaica Metal Limited.

5 The Claimant at all material times was employed to Distinctive Travel and Tours Limited in the capacity of accountant, the 1 ^st Defendant being her employer.

6 The 2 ^nd Defendant, who is now a corporal of police, was at all material times a Constable employed to the Jamaica Constabulary Force, and at all material times purported to act as an agent of the Crown in the performance of his duties as a Constable of Police.

7 The 3 ^rd Defendant is joined pursuant to the Crown Proceedings Act.

8 On the 16 ^th November 2005, the 1 ^st Defendant attended the Fraud Squad and made a complaint to the 2 ^nd Defendant alleging that Ms. Greenwood had stolen a sum of money from Distinctive Travel and Tours Limited.

9 An audit of the company's accounts was conducted, the result of which is contained in a report dated 21 ^st November 2005, prepared by Mr. Bremnolee Harbajan, Accountant at the Auditing Firm F.C. Swaby & Co. This report was entered into evidence as exhibit 1. The Report concluded that, inter alia, a sum of $635,451.00 could not be accounted for. It also concluded the following:

(a) ‘Based on our examination we note significant weaknesses and breakdown of the company's systems of control as it relates to the above and as such, we do not believe that the systems and procedures in place were sufficient on which any reliance could be planned’. (pg. 1, para. 3)

(b) ‘Based on our analysis of sales invoice with cash receipts a list of outstanding invoices were detected. Further enquiries indicate that many of these outstanding invoices were actually paid up. This resulted from sales agents being allowed to collect cash/cheques with no adherence to the system in place to ensure that such collections were accounted for or reported. ’ (pg. 10, paras 4 & 5)

(c) ‘Lodgments [sic] to the bank were not being made promptly and intact. Lodgment [sic] was being prepared by the same individuals issuing receipts who also prepared the daily cash report. In some instances copy of lodgment [sic] slips were not seen.’ (pg. 10, para. 6)

10 It is in issue whether this report was presented to Officer Grey prior to the Claimant's arrest.

11 On the 30 ^th November 2005, the Claimant attended the Old Harbour Police Station accompanied by her attorney-at-law, where she was questioned by the 2 ^nd Defendant. At the end of that session she was arrested and charged with Larceny as a Servant. The charge in the information, in evidence as exhibit 8, states as follows:

‘The information and complaint of Constable Milton Grey…who said that on divers days in the year 2005 one Janece Greenwood…being a Clerk or Servant employed to Distinctive Travel and Tours Limited stole money to wit $635,451 belonging to the said Distinctive Travel Tours Limited her employer. ’

12 On December 13 ^th 2005, the Claimant was brought before the Corporate Area Resident Magistrate's Court.

13 A statement was taken from Mr. Harbajan on the 14 ^th December 2005 (exhibit 5), reinforcing the information in his 21 ^st November 2005 report and outlining information including the terms of reference of the audit, the manner in which the audit was conducted and the findings of the audit. Therein, Mr. Harbajan indicated discrepancies between receipts and lodgements, and noted that, as a result of these discrepancies, the company was suffering a loss of over $400,000.00, but that:

‘It was not possible to identify the individuals responsible for these discrepancies because the cashier function was carried out by more than one person during the period. There were not adequate seggregation (sic) of duties. The system was sometime overridden by management. The internal systems of control and approval was not adhere to (sic).

14 Trial commenced on 7 ^th October 2008, at which time the 1 ^st Defendant commenced giving evidence. The matter was adjourned and the Defendant was slated to complete his evidence on the next occasion, however he never returned.

15 On 5 ^th February 2009, the Crown offered no further evidence against the Claimant and the case was dismissed.

16 The Claimant now seeks, via Claim Form filed 9 ^th March 2010, not only special and general damages, but also aggravated and vindicatory/exemplary damages.

LAW & ANALYSIS

17 It is well established in Jamaican law that to be successful in an action for malicious prosecution the Claimant must prove the following on a balance of probabilities:

• i. That the law was set in motion against him on a charge for a criminal offence;

• ii. That he was acquitted of the charge or that otherwise it was determined in his favour;

• iii. That when the prosecutor set the law in motion he was actuated by malice or acted without reasonable or probable cause;

• iv. That he suffered damage as a result. [ Keith Nelson v Sergeant Gayle and The Attorney-General of Jamaica, Claim No. 1998/N-120];

18 There is no doubt that the law was set in motion against Ms. Greenwood on a charge for a criminal offence. This is established by the Information and Indictment entered into evidence by agreement between the parties as exhibits 8 and 10 respectively, by which the Claimant was charged with the offence of Larceny as a Servant.

19 It is equally clear that the criminal case against Ms. Greenwood was determined in her favour as the case was dismissed on the 5 ^th of February 2009 when the Crown offered no further evidence. This is also a fact agreed by the parties.

20 Where the parties disagree however is on the question of who was the prosecutor that actually set the law in motion, and, whether said prosecutor acted with malice or without reasonable or probable cause.

21 Several issues of fact also arise and I will deal with them as they come up in dealing with the issues of law.

Who was the prosecutor? Who set the law in motion?

22 The Claimant asserts that both the 1 ^st Defendant and 2 ^nd Defendant are to be liable as the prosecutors, as the 1 ^st Defendant joined with the 2 ^nd Defendant in the prosecution of this Claim. Mr. Kinghorn for the Claimant submits that there is no question that the 1 ^st Defendant ought properly to be regarded as being instrumental in setting the law in motion against the claimant, as it is the conduct of the 1 ^st Defendant that influenced the 2 ^nd Defendant in his decision to prosecute, and, that the 1 ^st defendant wrongfully set the law in motion by resorting to the use of the power of the Crown to cause damages to the claimant. The claimant relies on the authority of Warrick Lattibeaudiere v The Jamaica National Building Society et al [2010] JMCA Civ 28 in which the court cites with approval the English locus classicus authority of Martin v Watson [1995] 3 W.L.R. 318,

23 In respect of the 1 ^st Defendant, the Claimant asserts that the evidence clearly establishes malice, particularly that the 1 ^st Defendant when making his complaint conveniently omitted to tell the police several pieces of vital information germane to establishing the innocence of the Claimant. This, along with the pursuit of the complaint by the 1 ^st Defendant in the face of the clear findings of the Auditor, is an obvious indication that the 1 ^st Defendant's actions influenced the 2 ^nd Defendant to charge the Claimant.

24 The 1 ^st Defendant however submits that it is the 2 ^nd Defendant who exercised his own independent discretion to initiate criminal proceedings after conducting independent investigations. He says the...