Table Of Content[2016] JMSC Civ 149
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION
CLAIM NO. 2010 HCV 01144
BETWEEN JANECE GREENWOOD CLAIMANT
AND ZEPHENIAH AARONS 1st
DEFENDANT
AND MILTON GREY 2nd
DEFENDANT
AND THE ATTORNEY-GENERAL 3rd
OF JAMAICA DEFENDANT
IN OPEN COURT
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
1st Defendant
Ms. Marlene Chisolm and Mrs. Vanessa Young instructed by the Director of State
Proceedings for 2nd & 3rd Defendants
February 29th, March 1st & September 14th 2016
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
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MCDONALD J
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, 1st 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 13th December 2005, but due to a series of
adjournments and other setbacks, trial did not commence until 7th October 2008.
Subsequently, the Claimant was discharged on 5th 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 23rd November 1980 and at the material
time would have been about 25 years old.
[4] The 1st 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 1st Defendant being her employer.
[6] The 2nd 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
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purported to act as an agent of the Crown in the performance of his duties as a
Constable of Police.
[7] The 3rd Defendant is joined pursuant to the Crown Proceedings Act.
[8] On the 16th November 2005, the 1st Defendant attended the Fraud Squad and
made a complaint to the 2nd 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 21st 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 30th November 2005, the Claimant attended the Old Harbour Police
Station accompanied by her attorney-at-law, where she was questioned by the 2nd
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:
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“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 13th 2005, the Claimant was brought before the Corporate Area
Resident Magistrate’s Court.
[13] A statement was taken from Mr. Harbajan on the 14th December 2005 (exhibit 5),
reinforcing the information in his 21st 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 7th October 2008, at which time the 1st 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 5th 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 9th 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:
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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 5th 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 1st Defendant and 2nd Defendant are to be
liable as the prosecutors, as the 1st Defendant joined with the 2nd Defendant in the
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prosecution of this Claim. Mr. Kinghorn for the Claimant submits that there is no
question that the 1st 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 1st Defendant
that influenced the 2nd Defendant in his decision to prosecute, and, that the 1st
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 1st Defendant, the Claimant asserts that the evidence clearly
establishes malice, particularly that the 1st 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 1st Defendant in the face of the clear findings of the Auditor, is an obvious
indication that the 1st Defendant’s actions influenced the 2nd Defendant to charge the
Claimant.
[24] The 1st Defendant however submits that it is the 2nd Defendant who exercised his
own independent discretion to initiate criminal proceedings after conducting
independent investigations. He says the information he gave to the police was honestly
believed by him to be true and that he did not influence the 2nd Defendant in any way to
arrest and charge the Claimant, as:
a. upon receipt of the report and documents from the 1st Defendant the
police independently investigated the said report and the 2nd Defendant by
employing his own independent discretion laid the charges against the
Claimant.
b. there is no other evidence that the 1st Defendant incited, encouraged,
procured, instructed or in any other way influenced the 2nd Defendant to
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charge the Claimant and institute the said criminal proceedings against
the Claimant for the offence of Larceny as a Servant.
[25] Conversely, the 2nd & 3rd Defendants submit that whilst it was the 2nd Defendant
Officer Grey who arrested and charged the Claimant, it was the 1st Defendant who was
instrumental in setting the law in motion, the 1st Defendant having made a report to the
2nd Defendant of facts solely within his knowledge, these facts being the Claimant’s
responsibilities as his employee, her transactions, and the identification of the
accounting records signed by her. They too rely on the authority of Martin v Watson
[1995] 3 W.L.R. 318 and submit that the 2nd Defendant could not have exercised any
independent discretion given that the 1st Defendant had provided the documentary
evidence relevant to the discrepancies highlighted in the accountant’s report.
[26] It is posited that the 1st Defendant by his actions wanted the Claimant to be
charged for the unaccounted funds which he desired to recover. They highlight the
evidence of the 1st Defendant at trial that he discovered the irregularities, engaged the
services of the accountants, and having received the accountant’s report after the
complaint was first made against the Claimant, still pursued the complaint.
[27] Based on the evidence, the 2nd and 3rd Defendants ask this Court to draw the
inference that the 1st Defendant at all material times intended to pursue the recovery of
the unaccounted funds revealed by the audit through the Court. It is interesting to note
that the 2nd and 3rd Defendants, whilst not explicitly stating so, allude to a position that
the 1st Defendant may have presented false information to the 2nd Defendant that would
have influenced the 2nd Defendant to prosecute.
THE LAW
[28] Who is to be regarded as the prosecutor in matters of this nature is concisely set
out in Clerk & Lindsell on Torts (19th Edition), 2006. The prosecutor is the person
who is actively instrumental in setting the law in motion, and the law is only set in motion
by the person who makes an appeal to some person clothed with judicial authority.
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Ordinarily, where the accused is charged by the police, the prosecutor is the police
officer who lays the charge and goes before the magistrate for the warrant. At
paragraph 16-08 the learned editors state the following:
“…To prosecute is to set the law in motion, and the law is only set in motion by
an appeal to some person clothed with judicial authority in regard to the matter in
question, and to be liable for malicious prosecution, a person must be actively
instrumental in so setting the law in motion…if a charge is made to a police
constable and he thereupon makes an arrest, the party making the charge, if
liable at all, will be liable in an action for false imprisonment…But if he goes
before a magistrate who thereupon issues his warrant, then his liability, If any is
for malicious prosecution.”
[29] There are however circumstances in which the law recognizes that a private
citizen may be found to have set the law in motion and thus be liable in a case of
malicious prosecution, even though it was a police officer who technically set the law in
motion by laying the charge.
[30] The Jamaican Court of Appeal authority of Warrick Lattibeaudiere v The
Jamaica National Building Society et al [2010] JMCA Civ 28 is applicable. Therein,
Harris JA noted the following at paragraph 20:
“In determining the question as to who was actively instrumental in commencing
the prosecution, it is not sufficient to say that the law was set in motion by the
police. Although it is true to say that all criminal offences are initiated and
prosecuted by the police, this too is not enough. In assessing liability the court is
required to adopt a close analytical approach to the circumstances of each
particular case.
The cases show that in doing so, consideration should first be given to all the
circumstances surrounding the issuing of the information to the police.
Thereafter, the question for the court should be whether in all the circumstances
of a particular case, the defendant ought properly to be regarded as being
instrumental in setting the law in motion against the claimant. The conduct of a
defendant must be such that it is shown to have influenced the police in their
decision to prosecute.
The test therefore is whether the defendant wrongfully set the law in motion by
resorting to the use of the power of the Crown to cause damage to the claimant.”
[31] Relying on the authorities of Martin v Watson [1996] AC 74; [1995] 3 W.L.R.
318, Pandit Gaya Parshad Tewari v Sardar Bhagat Singh (1908) 24 T.L.R. 884,
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Commonwealth Life Assurance Society Ltd. v Brain 53 C. L.R. 343; (1989) 3 NZLR
187, and Commonwealth Union Assurance Co. of New Zealand Ltd. v Lamont
(1989) 3 NZLR 187, the learned Judge at paragraph 19 derived the following principles
as being applicable in assessing the liability of a private citizen in malicious prosecution
cases:
“Where a civilian gives information to the police which he honestly believes to be
true and as a consequence, the police, employing their own independent
discretion, initiate criminal proceedings, even if the information proves to be
false, no liability can be attributed to the citizen. If however, he deliberately
supplies the police with information which he knows to be untrue, then, liability as
a prosecutor may be ascribed to him. He may also be said to be the prosecutor
where he withholds information which if disclosed, the police would not have
prosecuted; or where he suborns witnesses; or where, he, by some other
dishonest means brings about the prosecution of a claimant. As shown, an
essential feature of the tort is that the informant engaged in some act which
rendered the prosecution of a claimant an unwarranted exercise.”
[32] She goes on in para [20] to say:
“where a private citizen gives information to the police which results in charges
being brought against a claimant, this does not in itself make the informer a
prosecutor. But if it is proven that he intentionally brought about the prosecution
as a result of his own misdeed, then he cannot escape liability.
[33] In Warrick (supra) the Applicant sought damages for malicious prosecution
against the Respondents, who were private citizens, on the basis that the 2nd and 3rd
Respondents had made a report to the police that he had conspired with another to
defraud the 1st Defendant, the Jamaica National Building Society, to which he had been
employed. The evidence before the Court was that complaints had been made by
customers which led the 2nd Respondent to make internal investigations. The
investigations uncovered discrepancies on certain vouchers which bore the appellant’s
signature. A complaint was made to the police which resulted in the appellant being
charged with conspiracy to defraud. The appellant was tried and acquitted of the
charge. The appellant made heavy weather of accusations he says were hurled at him
in front of the police by the 3rd Respondent which he argued showed that the 3rd
Defendant was technically the prosecutor rather than the officer. On appeal challenging
the Court’s judgment in favour of the Respondents, the Court of Appeal in dismissing
the appeal found that the officer was the prosecutor and not the respondents. There
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was evidence of discrepancies at the JNBS and the proper course was indeed for the
matter to be reported to the police. There was cogent evidence before the lower Court
of allegations of irregularities at JNBS in which the appellant was involved, which
supported the fact that there would have been reasonable and probable cause to initiate
proceedings for his prosecution. Thus, it was held that the trial judge had been correct
in finding that the Detective was in fact the prosecutor, having exercised her own
independent discretion and acted on her own initiative in bringing the proceedings.
[34] The Appellate Court in Warrick also found that there was no evidence that the
circumstances which led to the arrest of the appellant were peculiarly within the
knowledge of the 3rd respondent which would have made it virtually impossible for the
Detective to rely on her own judgment in preferring the charge against the appellant.
The accusation made by the 3rd respondent that the applicant had stolen money did not
make him the prosecutor since there were discrepancies in accounts at the JNBS and
the respondent had taken the proper course which was to report the matter to the
police. The Detective would have embarked on her own investigations which would
obviously include an examination of the impugned documents. The Detective had also
interviewed the appellant prior to the service of the summons.
[35] In Martin v Watson (supra) the defendant made a complaint of indecent
exposure against the plaintiff, after which a detective constable laid an information
before the justices, who issued a warrant for the plaintiff’s arrest on a charge of indecent
exposure. At trial, the prosecution offered no evidence and the charge was dismissed.
The plaintiff brought an action against the defendant for malicious prosecution and was
successful, but on appeal by the defendant the trial judge’s decision was reversed. On
appeal to the House of Lords, in allowing the appeal, the House said the following at
pages 326H -327A:
“where an individual falsely and maliciously gives a police officer information
indicating that some person is guilty of a criminal offence and states that he is
willing to give evidence in court of the matters in question, it is properly to be
inferred that he desires and intends that the person he names should be
prosecuted. Where the circumstances are such that the facts relating to the
alleged offence can be within the knowledge only of the complainant, as was the
Description:CLAIM NO. 2010 HCV 01144. BETWEEN. JANECE GREENWOOD. CLAIMANT. AND. ZEPHENIAH AARONS. 1st. DEFENDANT. AND. MILTON GREY.
