Derek Achong

A High Court Judge has re­newed a call for er­rant po­lice of­fi­cers to face fi­nan­cial con­se­quences when found to have ma­li­cious­ly pros­e­cut­ed cit­i­zens, as he award­ed $168,500 in com­pen­sa­tion to a man from Biche over a faulty drug ar­rest.

Jus­tice Frank Seep­er­sad made the call on Mon­day as he up­held Franklyn Ali’s law­suit against the State over his ar­rest dur­ing the 2011 State of Emer­gency (SoE). 

“The court finds it un­ac­cept­able and dif­fi­cult to un­der­stand why in these mat­ters of ma­li­cious pros­e­cu­tion, there has not been leg­isla­tive in­ter­ven­tion by the State to have er­rant of­fi­cers whol­ly or par­tial­ly re­spon­si­ble for dam­ages in such cas­es,” Seep­er­sad said. 

Stat­ing that such mat­ters were brought be­fore the courts too fre­quent­ly, he said that on­ly with con­se­quences would of­fi­cers be cau­tious in en­sur­ing they have enough ev­i­dence to pros­e­cute an in­di­vid­ual and de­prive them of their lib­er­ty. 

Seep­er­sad not­ed that the ev­i­dence in Ali’s case was pel­lu­cid and the Of­fice of the At­tor­ney Gen­er­al should have se­ri­ous­ly con­sid­ered set­tling it to avoid wast­ing time and re­sources. 

He sug­gest­ed that de­fend­ing strong lit­i­ga­tion in the in­ter­est of pos­si­bly sav­ing tax­pay­ers from pay­ing com­pen­sa­tion has a knock­down ef­fect of caus­ing de­lays in the ad­min­is­tra­tion of jus­tice. 

“Every mat­ter that pro­ceeds to tri­al when it ought not to, de­prives a more de­serv­ing mat­ter from its day in court,” he said. 

Tes­ti­fy­ing vir­tu­al­ly be­fore Seep­er­sad yes­ter­day, Ali, a farmer of Poole Vil­lage, Biche, claimed that on Sep­tem­ber 17, 2011, he was rid­ing his bike home from a gar­den shop when he was stopped by a group of po­lice of­fi­cers, who had ar­rest­ed him pre­vi­ous­ly. 

Ali claimed that the of­fi­cers took him in­to a neigh­bour’s prop­er­ty, which they were parked in front of.

While search­ing the prop­er­ty the of­fi­cers found a quan­ti­ty of mar­i­jua­na hid­den in a cov­ered buck­et. 

Ali and the own­er of the prop­er­ty were charged with mar­i­jua­na pos­ses­sion. Ali was re­mand­ed in­to cus­tody for two months be­fore he was even­tu­al­ly grant­ed $150,000 bail. 

He at­tend­ed court nu­mer­ous times be­fore the charge was dis­missed for want of pros­e­cu­tion. The pros­e­cu­tion of the prop­er­ty own­er was dis­con­tin­ued as he was de­clared not fit to stand tri­al due to men­tal health is­sues. 

While be­ing cross-ex­am­ined by Ali’s lawyer Lemuel Mur­phy, Cpl Nicholas Vial­va and PC Ryan Payne ad­mit­ted that they knew Ali from his pre­vi­ous ar­rest, which al­so re­sult­ed in him be­ing freed of a charge. 

How­ev­er, they both de­nied tak­ing Ali from the road and on­to the man’s prop­er­ty as they claimed that they met him there when they ar­rived. 

The of­fi­cers ad­mit­ted that they did not have a search war­rant as they were re­ly­ing on the emer­gency pow­ers reg­u­la­tions is­sued dur­ing the SoE. 

Payne ad­mit­ted that while they were re­ly­ing on pro­vi­sions deal­ing with il­le­gal firearms and am­mu­ni­tion, he and his col­leagues on­ly had in­for­ma­tion that the own­er of the prop­er­ty had a large quan­ti­ty of mar­i­jua­na there. 

“We were work­ing with the un­der­stand­ing that when per­sons have large amounts of mar­i­jua­na, they would usu­al­ly have firearms to pro­tect their in­vest­ment,” Payne said. 

The of­fi­cers al­so ad­mit­ted that they had no in­for­ma­tion that Ali would fre­quent the lo­ca­tion or was in­volved with the drugs.

In de­cid­ing the case, Seep­er­sad ruled that the of­fi­cers could not have the ob­jec­tive or sub­jec­tive be­lief that Ali could be pros­e­cut­ed for the drugs as Ali’s mere pres­ence at the lo­ca­tion was not enough to sus­tain the charge. 

He said that the of­fi­cers could have sought the ad­vice of the Of­fice of the Di­rec­tor of Pub­lic Pros­e­cu­tions (DPP) be­fore lay­ing the charge. 

He al­so sug­gest­ed that based on Ali’s case and nu­mer­ous oth­ers re­lat­ed to the SoE, po­lice of­fi­cers were not prop­er­ly trained in terms of ex­er­cis­ing their pow­er dur­ing the pe­ri­od. 
“It must be un­der­stood that dur­ing an SoE the rule of law isn’t sus­pend­ed and of­fi­cers must en­sure that there is ev­i­dence to sup­port the es­sen­tial el­e­ments for the of­fence for which the cit­i­zen is be­ing charged,” he said. 

In as­sess­ing the com­pen­sa­tion for Ali, J Seep­er­sad award­ed $150,000 in gen­er­al dam­ages and $15,000 in ex­em­plary dam­ages. 

Seep­er­sad not­ed that Ali was seek­ing $21,000 in com­pen­sa­tion for loss of earn­ings and $15,000 for the le­gal fees he ex­pend­ed in de­fend­ing the charge but pro­vid­ed no ev­i­dence to but­tress his claims. 

While he ac­cept­ed that Ali would have no doubt suf­fered loss­es from his gar­den while on re­mand, Seep­er­sad said that in the ab­sence of proof he could on­ly re­ceive $3,500 in nom­i­nal dam­ages. 

Ali was al­so rep­re­sent­ed by Abi­gail Roach while Tr­isha Ram­lo­gan and Domonique Bernard rep­re­sent­ed the State.

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